Metropolitan News-Enterprise


Monday, September 11, 2006


Page 1


Appeals Court Upholds Burglary Conviction of Man Who Assaulted Wife in Off-Limits Family Home


By TINA BAY, Staff Writer


A person can face burglary charges if he attacks his spouse at the family residence after entering it in violation of a restraining order, the Fourth District Court of Appeal has ruled.

In an opinion published last Thursday, Div. Two unanimously affirmed a Blythe man’s burglary conviction arising from an assault on his now ex-wife in their then-family home.

The defendant, Curtis Edward Smith, had argued that he could not be charged with burglarizing the home he purchased jointly with ex-wife Geraldine Butler during their marriage because it was community property.  

But Justice Thomas E. Hollenhorst, writing for the court, said that Smith could be charged with burglary of the marital home in the same way that a landlord may be charged with burglarizing a tenant’s property.

In addition to the burglary verdict, the court also upheld all of the other convictions issued by a jury following a 2004 trial before Riverside Superior Court Judge Randall Donald White, including convictions for attempted premeditated murder and assault with a deadly weapon.

According to trial testimony, Smith attacked Butler in their marital residence twice in October 2000, beating her on Oct. 2 and then brutally assaulting her on Oct. 10.  The domestic disputes came at the height of ongoing marital troubles following the couple’s 1995 union.

Butler reported the first incident to the police, who documented her injuries and then arrested Smith.  They initially placed him in jail but he was later freed on bail.

After Smith’s release—at which point Butler was living with her sister—Butler obtained a temporary restraining order against him, along with a “kick out order” removing him from the family home and granting Butler sole possession of the home.

The Oct. 10 incident was preceded by Smith’s unsuccessful attempt on Oct. 6 to kill himself by driving his jeep into the Colorado River.  Smith had been picked up on the Arizona side of the river and spent three days in a mental institution before returning to Blythe.  Allegedly because he had no other place to stay, Smith went to the storage shed of the family residence to spend the night even though he knew he was violating a court order by doing so. 

Butler, unaware of Smith’s presence, went to the family home on the night of Oct. 10 and found a suicide note from Smith in the mail.  After Butler called her sister and read her the letter, which accused Butler of being a homosexual, Smith threw a propane canister through the sliding glass door and entered the house.

He assaulted Butler viciously with various forms of physical violence including choking, kicking, and threatening to kill her while holding a knife to her throat.

At the climax of the violence, Smith punched her repeatedly in the face and banged her head against the curb over and over until she lost consciousness, bleeding profusely from the head.

The attack ended when several men saw the struggle and forced Smith to stop.

When police later found Smith, he told them, “I just killed my wife.”

The 2001 information charging Smith in connection with the spousal abuse episodes included a count for residential burglary, which Penal Code Sec. 459 defines as the entry into any building with the intent to commit any felony.

Smith’s appellate counsel, San Diego attorney Carmela F. Simoncini, contended that Smith retained possessory interest in the Blythe home despite the kick out order  and therefore could not be charged with burglarizing it.  This is because the family law court could not award exclusive possession of the community property house to Butler, she argued.

But the court concluded that the possessory right contemplated by the Penal Code was different from that protected under the Family Code.  For purposes of Sec. 459, Hollenhorst said, “possession” simply meant the “right to exert control over property to the exclusion of others.”

The justice explained:

“In this case, Geraldine was awarded sole possession of the family home and she was granted a TRO against defendant because of his acts of violence towards her.  Thus, although defendant had a possessory interest in the family home, he did not possess the right to enter as an occupant when Geraldine was present.  Geraldine, on the other hand, retained the right to enter as an occupant at any time.”

Although persons normally cannot be charged with burglarizing their own home, Hollenhorst said, the specific facts of Smith’s case—his past physical abuse of Butler and existence of the temporary restraining order and kick out order—showed that a danger arose from his mere entry into the house. 

Smith could therefore be charged and convicted of burglarizing his own home, Hollenhorst explained.

The jurist noted that Smith’s actions went beyond merely violating the restraining order.

“[H]e did not stop there,” Hollenhorst said.  “As the jury found, defendant, who knew that Geraldine was in the house, forced his way into the family home with the intent to commit a crime.  In other words, he committed a burglary.”

Deputy District Attorney Lynne McGinnis, who represented the people on appeal, told the MetNews the court’s ruling provided a significant protection for domestic violence victims.

“In a domestic violence situation where one party’s been the victim of violence and because of the violence they get a stay away order, [this decision] provides them protection against the offender coming back and breaking into the house and saying, ‘Well the most you can do to me is slap my hand because I violated the TRO.’”

McGinnis added that the court was not opening the door for an onslaught of burglary charges against domestic violence offenders who violate restraining orders.

“It takes a lot more than a violation of a TRO—in this case, he entered with the intent to kill her,”  she said.

But Simoncini, who used to represent battered women in domestic violence cases, told the MetNews that the now published decision could be taken too far.

“I know how easy it is to get a restraining order,” she said.  “[Now] a guy can come in to pick up his shorts and get into a fight with his wife, and he committed a burglary.  I’m certainly not making any excuse for what happened here because there was a real brutal beating, but calling that a burglary is overkill.”

Simoncini said her client plans to petition the Supreme Court for review on the issue.

The case is People v. Smith, S.O.S. 4819.


Copyright 2006, Metropolitan News Company