Metropolitan News-Enterprise


Friday, July 26, 2002


Page 4


C.A. Declares Statute on Battery of Custodial Officers Unconstitutional


By a MetNews Staff Writer


A state law making it a felony to batter a custodial officer, even if injury does not result, violates the constitutional equal protection clauses, this district’s Court of Appeal ruled yesterday.

A divided panel in Div. One overturned Jaleh Wilkinson’s felony conviction for violation of Penal Code Sec. 243.1. The court sent the case back to the trial court for possible retrial.

Justice Ruben Ortega, joined by Presiding Justice Vaino Spencer, said the statute is irrationally discriminatory in light of Sec. 243, which allows the same or more serious conduct to be prosecuted as a misdemeanor.

 Justice Robert Mallano disagreed, arguing in dissent that the scheme is rational because prosecutors have discretion whether to file a case against under Sec. 243 or 243.1, depending on the circumstances of the case.

 The court rejected Wilkinson’s other constitutional challenge to the statute, that it violates the separation of powers by committing the determination of punishment to prosecutors.

 But it ruled in Wilkinson’s favor on two other issues, saying she was entitled to a Kelly hearing on whether polygraph evidence has achieved sufficient acceptance in the scientific community to be admissible, as well as to an evidentiary hearing on her claim that her lawyer improperly advised her to turn down a plea bargain that would have avoided a felony conviction and a jail term.

 Wilkinson, an Iranian immigrant who says she lost her job as a bank vice president, was denied citizenship, and faces possible deportation as a result of her conviction, was arrested three years ago after a traffic stop.

 A motorist said she crossed a center divider, hit a parked car without stopping, swerved, made a U-turn, and stopped at the curb. Police said she was passed out in her vehicle, got up, looked at an officer, attempted to drive off, stopped after a brief pursuit, appeared to be under the influence of alcohol, and was unable to complete a field sobriety test.

 She was taken to jail, where she allegedly grabbed a jailer’s arm so hard as to cause visible welts. Wilkinson denied attacking the jailer, pointing to a videotape of the jailing that she said exonerated her, and claimed that someone had secretly placed the date-rape drug Rohypnol into her drink prior to the incident leading to her arrest.

 She was convicted of violating Sec. 243.1, which makes a battery on a custodial officer a felony when “the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties.”

 She was also convicted of two misdemeanors, drunk driving and hit-and-run. Los Angeles Superior Court Judge Stephen Suzukawa sentenced her to 180 days in jail.

 Ortega said Sec. 243.1 is irrational because Sec. 243(b) makes the identical conduct a straight misdemeanor, while Sec. 243(c) says that if a custodial officer is battered, and the defendant knows that the officer is performing his or her duties, “and an injury is inflicted on that victim,” the crime is a wobbler. 

 The justice explained:

 “If the battery on custodial officer statutes included only two options, a straight felony under section 243.1 or a straight misdemeanor under section 243, subdivision (b), both of which have identical elements, prosecutorial discretion to choose different punishment between offenders engaging in similar conduct would not violate equal protection.... Prosecutors legitimately could choose to prosecute those who committed battery on a custodial officer as either a felony or misdemeanor, based on the prosecutor’s evaluation of the crime, the defendant, the defendant’s past record, and other factors.....”

 But the third option, Ortega went on to explain, the Sec. 243(c) wobbler, “raises the specter of complete irrationality in the scheme, because the more serious offense of battering a custodial officer with injury could be punished less seriously—than battering a custodial officer without injury.”

Wilkinson’s court-appointed appellate attorney, Anthony J. Dain, said he was pleasantly surprised by the ruling on the issue, because rational-basis equal protection challenges to criminal statues rarely succeed.

“I didn’t expect this,” he told the MetNews. But the court was right, he said, because the legislation is “one of the most irrational schemes I’ve ever seen.”

Dain said the case was “overcharged” and that he was hopeful it would be pled down to a misdemeanor when it goes back to the trial court.

Deputy Attorneys General Jaime L. Fuster and Thomas C. Hsieh, who handled the case for the state, could not be reached for comment late yesterday.

The case is People v. Wilkinson, B145982.


Copyright 2002, Metropolitan News Company