Monday, December 07, 2015

People v. Dealba (Cal. Ct. App. - Dec. 7, 2015)

When I first started reading this opinion, I thought it was self-evidently correct.  But the more I thought about it, the less convinced I became.  Follow me on this:

It's battery when you hit someone.  It's assault when you swing at 'em.  That's what I remember from first-year law school.  Or something like that.

The actual doctrine is a bit more sophisticated than that, of course.  But those are the basics.

Now let's make it more complicated.  Imagine that Defendant (D) hits Victim (V) with a car.  D is still guilty of battery.  It's true that the car, rather than D, hit V.  But that doesn't matter.  V was still hit.

Ditto if D spits at V.  D caused the spit to fly, and it hit V.  That's battery.  And the slightest touching will qualify as battery.  If the spit had not hit V, it'd still be assault.  But it did.  Ergo battery.

Everyone agrees on everything I've just said.

Now, what about when a car driven by D hits a car driven by V?

In normal circumstances, I'd think that was clearly a battery too.  I'm imagining, for example, a head-on collision.  It's true that D didn't personally hit V.  It's also true that the car driven by D didn't itself hit V.  But the car driven by D nonetheless made something hit V; namely, the steering wheel, or the windshield, or whatever other part of the car V hit once she crashed.  That seems to me to count as battery as well.  If you do something that causes something else to hit the victim (or the victim to hit something else), that counts as battery.  You've put the whole process into motion, and that process resulted in victim getting hit.  Battery.

But now take a different kind of car accident.  Here, D's car hits V's car.  But V doesn't slam against anything.  There's no crash.  Is that battery?

Well, geeze, I don't know about that.  Take a tiny little tap on the rear fender, for example.  V barely feels it.  That might be a lot of things.  It might even be assault.  But is it really battery?

I think not.  Why not?  Because if the Victim didn't hit into anything, then there's not the "hitting" that I think is the essential element of battery.  (Technically, "touching," but I'll use the vernacular term instead.)  Victim doesn't hit anything, victim's not a victim of battery.  Right?

And that's true even if Victim had to do something in order to avoid the touching.  Say, for example, that D takes a swing at V, but V swerves out of the way, so does not get hit.  That's assault, for sure.  But it's not battery.  No one was actually hit.

Ditto for the tap on the fender, I think.  V didn't actually hit into anything.  So D isn't guilty of battery.  With me so far?  Or have I already screwed things up, in your mind?  Hopefully not.

So, with this backdrop, we're now to the present case.

Here, it's more than a tap on the fender.  Not infinitely more, mind you.  But it's sort of a side-swipe.  D drives along the side of V's vehicle and deliberately slides over into it.  Puts some scratches on the side of the vehicle.  Almost knocks off a rear view mirror, which is left dangling on some wires.  Less than a ram, but more than a tap.

What about that?  V says she was scared that D might run her off the road -- again, that's definitely assault, but we're talking about battery -- so had to grip the steering wheel tightly and correct to the left to avoid hitting other cars.  Which, to be clear, she never in fact hit.


The Court of Appeal says yes.  What was the "touching" at issue?  Justice Edmon says it's the fact that the victim had to correct the steering wheel; that, essentially, the force applied to the car "made" the steering wheel touch her, or something like that.

Again, when I first read the facts, I thought that whacking someone's car with your own car had to be battery, so was on board with this result.  But the more I think about it, the more I think, nope, in fact, that's not actually battery.  (Again:  It's definitely assault, as well as potentially other crimes, so don't think we're actually letting the guy go free.  The question is whether it's battery.  Period.)

Justice Edmon admits that there's no real precedent on this point.  But grabs two out-of-state cases to say that it should count as battery.  Put to one side the actual facts of those cases (and the fact that they are admittedly non-controlling); i.e., that in one of 'em, the defendant "entered the vehicle, held her down on the car seat, again threatened to kill her, and began striking her in the face with his fists [and] then choked her until she was unconscious."  In both of these cases, the impact was infinitely more severe than exists here:  in the first case, the victim was forced off the road, and in the second case, the collision spun the victim's car around.  When you're forced off the road and/or spun around, your body almost certainly gets smacked around; your head hits the steering wheel, your arms hit the seat, etc.  Whereas, in the present case, there's admittedly no physical contact.  With anything.  The only thing the victim says transpired is that she freaked out -- which, again, is assault -- and had to grip the steering wheel and make sure she didn't whack into the other parked cars on the road.

The Court of Appeal holds that's enough for battery.  That "it was precisely D.D.’s struggle to keep her Volkswagen from veering into the parked cars that constituted the unprivileged 'touching' inflicted on her by Dealba" since she "had to grip the steering wheel tighter and struggle to keep the Volkswagen from crashing into cars parked along the curb."


She was already touching the steering wheel.  Admittedly, she had to touch it a little bit harder, as well as turn it, as a result of defendant's conduct.  But that's not the kind of "touching" that we are usually talking about with battery.  We're talking instead about things had aren't previously touching starting to touch.  Spit with body.  Head with windshield.  Fist with face.  This seems qualitatively different.  And for good reason.

Indeed, if the Court of Appeal is right, I can think of lots of assaults that suddenly become battery.  D throws a rock at V's car.  The rock misses, but causes D to turn the steering wheel in fear (or in order to avoid the rock).  Now it's battery, right?  Because the D caused V to manipulate the steering wheel and that constitutes a sufficient touching.

Or take even your run of the mill assault.  D is in a bar and throws a punch at V.  V sees the intended punch and shifts his weight to the left, successfully avoiding the punch.  Under the Court of Appeal's analysis, the "struggle" to avoid the punch would seem to create a battery, as V was forced to change the degree of pressure on his pivot foot, which was previously touching the floor, in order to avoid a collision.  So just like the victim in the present case was "hit" by the steering wheel, the victim in that run-of-the-mill assault case would seemingly have been "hit" by the floor.  Increased pressure on both in order to avoid a collision after all.

That can't be right.

I admit that there's a fine line between assault and battery.  But it's still a line.  There needs to be a touching.  In your classic head-on collision, or even in a "run off the road" or "pit" example, that'll be easy to establish, because it will in fact have transpired.

But that didn't happen here.  The victim was legitimately frightened.  That's assault, and defendant should justly be imprisoned for it.

But it's not battery.  Because she didn't hit anything.  And the fact that she had to move -- or move the steering wheel -- to avoid such a collision doesn't make it any different than your classic assault, but not battery, in a bar fight.

So I initially thought that the Court of Appeal was right.  But I've decided that I think it's wrong.  At least on the evidence presented here, there was no touching.  So it's assault, not battery.