Is PC § 243(e)(1) a Crime Involving Moral Turpitude?

Over the course of many years spent defending those accused of domestic violence (Penal Code § 273.5(a)), domestic battery (Penal Code § 243(e)(1)) and simple battery (Penal Code § 242), we have certainly represented non-citizens who had concerns that a conviction for any one of these crimes could lead to their deportation, denial of naturalization, denial of renewal of a green card or visa, being refused re-entry to the United States and/or denial of amnesty.

The way in which such a conviction may lead to such adverse immigration consequences is because such a conviction may lead to a finding that he or she lacks good moral character (as required under 8 U.S.C. § 1229b(b)(1)(B)) if he or she has been convicted of a “crime involving moral turpitude (8 U.S.C. § 1182(a)(2)(A)(i)(l); see § 1101(f)(3); § 1229b(b)(1)(C) likewise renders an alien ineligible for cancellation of removal if he has been convicted of such a crime).

A “crime involving moral turpitude” basically falls into one of two types: “those involving fraud and those involving grave acts of baseness of depravity.”  Carty v. Ashcroft (9th Cir., 2005) 395 F. 3d 1081, 1083, cert. denied, 546 U.S. 818, 126 S. Ct. 346, 163 L. Ed. 2d 57 (2005).

The question then becomes whether Penal Code §§ 273.5(a), 243(e)(1) and or 242 are crimes of moral turpitude.

As to Penal Code § 273.5(a), a violation of this section takes place when one “willfully inflicts corporal injury resulting in a traumatic condition.”  This has long-been understood as a crime involving moral turpitude.  See Grageda v. INS (9th Cir., 1993) 12 F. 3d 919, 922 ) (holding that the “willful[] inflict[ion] upon . . . [one’s] spouse . . . corporal injury resulting in a traumatic condition” is a crime involving moral turpitude); Guerrero de Nodahl v. INS (1969) 407 F. 2d 1405, 1406 (holding that “[willfully] inflicting ‘cruel or inhuman corporal punishment or injury’ upon a child” is a crime involving moral turpitude).

A violation of Penal Code § 243(e), however, requires no injury at all.  It takes place when a “battery is committed against a spouse, a person with whom the defendant is cohabitating, a person who is the parent of defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship.” 

Battery is defined by Penal Code § 242 as “any willful and unlawful use of force or violence upon the person of another.”  “Use of force,” however, is something of a term of art, “requiring neither a force capable of hurting or causing injury nor violence in the usual sense of the term.”  Ortega-Mendez v. Gonzalez (9th Cir., 2006) 450 F. 3d 1010, at 1016.  Indeed, it has been observed that battery includes “a harmful or offensive touching” even when such touching causes no injury at all.  People v. Martinez (1970) 3 Cal. App. 3d 886, 889, 83 Cal. Rptr. 914.

Indeed, to qualify as a battery under 242, “force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.”  People v. Mansfield (1988) 200 Cal. App. 2d 82, 88, 245 Cal. Rptr. 800 (quoting 1 Witkin, California Crimes: Crimes Against the Person § 258 (1963); see also Charles E. Torcia, 2 Wharton’s Criminal Law § 177 (15th ed. West 2006) (“A defendant commits a battery when he shoves, pushes, or touches [another person] in an angry, indecent, rude, insolent, or hostile manner.”).  The touching of a person can include the person’s clothing, or something attached to or closely connected to a person.  California Jury Instructions – Criminal 16.141 (2006).  The slightest touching is sufficient, if unwarranted and unjustifiable.  Id.

In contrast, moral turpitude includes not only crimes of fraud, but “grave acts of baseness or depravity” that include many use-of-force offense that result in bodily harm “because the intentional and knowing infliction of injury upon such persons reflects a degenerate willingness on the part of the offender to prey on the vulnerable or to disregard his social duty to those who are entitled to his care and protection.”  Galeana Mendoza v. Gonzalez (9th Cir., 2006) 465 F. 3d 1054.

Consequently, a violation of Penal Code §§ 243(e) or 242 does not qualify as a “crime involving moral turpitude.”  Galeana Mendoza, supra.

Nonetheless, we suggest that in entering such a plea to 243(e) or 242 for a non-citizen, counsel should be vigilant not to stipulate to a factual basis for the plea, but to instead enter the plea 1) pursuant to People v. West; 2) state on the record that the police report shall not be used for any purpose related to the case outside this court; and 3) that the plea is being entered into with an understanding that defendant did not cause a traumatic condition to the victim, if possible.

We recommend that counsel discuss such verbiage with the prosecution and the judge prior to entering it on the record so there is a clean record in the transcript, should it ever be read in an immigration court later.

For more information about crimes involving moral turpitude in the immigration context, please click on the following articles: