Metropolitan News-Enterprise


Thursday, July 18, 2013


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C.A. Rejects Bid to Try Man Here for Attacking Woman in Hawaii




A California court did not have jurisdiction to try a Monterey County man for acts of domestic violence he committed in Hawaii, the Sixth District Court of Appeal has ruled.

The court yesterday certified for publication its June 18 opinion granting writ relief to Michael Fortner and barring the Monterey Superior Court from trying him on charges related to an April 2010 incident between himself and his future wife while on a Hawaiian vacatiion. The ruling does not affect pending charges against Fortner for battering the same victim in Monterey County the following year.

Justice Nathan Mihara, writing for the Court of Appeal, said the connection between Fortner’s alleged misconduct in California and the acts that occurred in Hawaii was too attenuated to support a finding of subject-matter jurisdiction. A contrary ruling by then-Monterey Superior Court Judge Adrienne Grover—now Mihara’s colleague on the Court of Appeal—was unsupported by substantial evidence, Mihara said. 

Prosecutors filed a multi-count complaint charging Fortner with crimes against “Jane Doe,” whom he married in the fall of 2010. In November 2011, angry at his wife for coming home late from work, Fortner allegedly put his hands around her throat and squeezed until she lost consciousness.

When she regained consciousness, they argued again, and he allegedly attacked her again, causing her to lose consciousness again. Leaving home, she eventually told police that she had been battered by her husband.

Protective Order

In addition to the charges relating to that incident, prosecutors charged Fortner with repeatedly violating a protective order by contacting Doe after his arrest. They also included charges of mayhem and domestic violence with great bodily injury related to the Hawaii incident.

That incident allegedly stemmed from a fight the two had while on vacation—a follow-up to an earlier argument, in California, about Fortner having sex with prostitutes. After Fortner called her a “fat cow,” Doe said, she asked “if he thought the hooker was better than me,” and he replied in the affirmative.

That led to a “scuffle,” she said, and Fortner knocked her unconscious. Suffering a visible injury to her face, she initially told hotel staff that Fortner was responsible, but later told police she had fallen and injured herself.

Suffering what turned out to be permanent retinal damage as a result of being punched in the eye, she sought medical help after returning to California. She claimed she had been injured in a fall from a horse.

In response to a demurrer, prosecutors claimed that the Hawaii incident affected Doe in California, since she was treated in this state for her injuries and because it was part of a continuing pattern of abuse that continued here. But Mihara said that was an insufficient connection.

To be lawfully prosecuted in this state, the justice explained, a crime must have occurred here, “in whole or in part,” or must have been “consummated within [California’s] boundaries,” or the defendant must have committed an intentional act in California, culminating “in the commission of a crime, either within or without the state.”

Where Offense Consummated

The Hawaii offenses were consummated in that state, Mihara said, regardless of where the injuries were treated. “Although the prosecution points to Doe’s eye injury as the ‘consummat[ion]’ of the Hawaii offenses, no evidence was presented that this injury occurred anywhere other than in Hawaii as the immediate effect of Fortner’s punch to Doe’s face.”

Nor was the argument in California over Fortner’s involvement with prostitution and his unfavorable comparison of Doe with a prostitute related to what happened in Hawaii, Mihara said, because the argument in Hawaii was “indisputably” spontaneous and did not grow out of any “preparatory act” that occurred in California. “No evidence was presented from which one could infer that Fortner had intentionally brought up prostitutes during the earlier argument so as to prepare for the Hawaii argument with the intent of punching Doe in Hawaii when she mentioned a prostitute,” the jurist wrote.

Mihara went on to reject the prosecution’s theory of a continuing exercise of “control over Jane Doe by verbal and physical abuse.”

The justice wrote:

“The California statutes defining territorial jurisdiction in this state do not extend as far as the prosecution desires.  The mere fact that a crime perpetrated in another state will affect the victim’s ‘behavior’ when the victim returns to California, even if intended to do so by the perpetrator, does not establish that the crime was ‘consummated’ in California or that any ‘part’ of the crime occurred in California.  Even if we accept the prosecution’s assertion that every act of domestic violence is necessarily intended to subjugate the victim in the future, thereby causing continuing ‘harm’ to the victim wherever the victim may go, that does not satisfy the statutory prerequisites for territorial jurisdiction in California. “

The case is Fortner v. Superior Court (People), 13 S.O.S. 3612. 







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