Facing: Felony Sexual Battery with Prison
Yesterday I went to a preliminary hearing on a count of PC 243.4(a)- Sexual Battery by Restraint. This code section requires a sexual touching while the victim is restrained. Although it was a “wobbler“, which means it can be charged both as a felony or a misdemeanor, the District Attorney’s Office decided to charge it as a felony.
The “victim” was a tenant of the defendant and was creating a chaotic scene at the house, not paying rent, and refused to leave. The alleged victim had called the authorities on my client numerous times, and he had done the same because of her disruptive behavior (including having 11 cats in a small room).
At first she told the police that the Defendant groped her over her tank top and over her jeans in the genital area. At the preliminary hearing, evidently she “forgot” the groping over the jeans (or more likely had made it up when calling the police and forgot about it).
First Step: Reducing the Charge
I was able to get the charge reduced to a misdemeanor under PC 243.4(e)(1).
The reason I was able to get it reduced was because I argued that PC 243.4(a) requires the touching be made on the alleged victim’s BARE SKIN. Here it was over the tank top and bra, so it didn’t qualify. CalCrim Jury Instruction 935, specifically states that “Contact must have been made with the Victim’s bare skin.”
One problems was that the Bench Notes from the Calcrim Instruction directly contradicts the plain reading of the CalCrim Instruction. It cites a case of People v. Elam (2001) 91 Cal.App.4th 298, 309-310, 110 Cal.Rptr.2d 185, as standing for the proposition that bare skin means “the defendant touches the alleged victim’s bare intimate part either directly or through clothing.”
However, the case means that the touching can be through defendant’s clothing, not through the victim’s. In other words, if the defendant is wearing gloves, and touches the bare skin of a victim, then he would be criminally liable under PC 243.4(a). However, the reverse does not apply- the touching must be to the victim’s bare skin. So, on this ground, the Judge agreed to reduce the charge to a misdemeanor.
So, the client’s maximum went from 4 years in state prison, to 6 months in county jail. Next, We’ll try to get it lowered more. Good news for him!
Seppi Esfandi is a Specialist in Criminal Law who has over 16 years of practice defending a variety of criminal cases.