Wednesday, July 29, 2026
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Ninth Circuit: Domestic Battery in California Does Not Qualify as ‘Violent’ for U.S. Scheme
Opinion Overrules Cases, Says Because State Only Demands Intentional Act, Not Intended Injury Felony Convictions Will Not Qualify for Sentencing Enhancement Under Federal Guidelines
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a violation of California’s domestic violence statute that renders a “person who willfully inflicts corporal injury” on a current or former romantic partner guilty of a felony, does not qualify the offense as a “crime of violence” for purposes of a sentencing enhancement under federal guidelines.
The opinion overrules contrary case law as “clearly irreconcilable” with recent U.S. Supreme Court jurisprudence.
At issue is U.S. Sentencing Guidelines §2K2.1(a)(2) which provides for increased penalties “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of…a crime of violence,” which is defined elsewhere as “any offense under federal or state law…that…has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Circuit Judge Kim McLane Wardlaw, writing for the court, cited the 2021 U.S. Supreme Court case of Borden v. U.S., in which a plurality opined that a violation of a law with a mens rea of recklessness does not qualify for the enhancement, as well as this year’s Ninth Circuit en banc decision in U.S. v. Gomez, which disqualified assault with a deadly weapon in California for similar reasons.
Greater Than Recklessness
She opined that those cases require “a mens rea greater than recklessness both as to the use of force sufficient to cause pain or injury and to the fact that the use of force is directed at another person” and concluded that the general-intent California law at stake, Penal Code §273.5, only demands an intentional act but does not require that a defendant intended to use force “against” the other party. Wardlaw wrote:
“Like the assault statute at issue in Gomez, §273.5 requires only that the defendant intend to do the initial act; it does not require that the defendant intend or know that the use of force is directed toward another. Accordingly, §273.5 is not a categorical crime of violence, and our former case law stating to the contrary is overruled because it is clearly irreconcilable with Borden and Gomez.”
The question arose after Jonathan Lopez pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. §922(g)(1), in 2024 pursuant to a plea agreement in which he preserved his right to appeal any finding that his two prior convictions for violating §273.5 qualify as “crimes of violence” under the federal sentencing guidelines.
On May 7, 2024, District Court Judge Jennifer L. Thurston of the Eastern District of California sentenced him to more than five years in prison after finding that his prior convictions qualified for the enhancement. Yesterday’s decision, joined in by Circuit Judge Gabriel P. Sanchez and Senior Circuit Judge Carlos T. Bea, vacates Lopez’s sentence and remands for resentencing.
Saying that the “elements clause” contained within the definition of “crime of violence” appears in “almost identical” language throughout federal law, Wardlaw pointed out that “case law interpreting” such a provision applies universally. She noted that the high court in Borden interpreted such a section found in Armed Career Criminal Act.
Addressing that case, she wrote:
“Borden explains that ‘violent felon[ies]’ are ‘best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.’…The Borden Court thus focused on whether the use of force was directed at another person, rather than merely the initial volitional act of force.”
She continued: “Before Borden, our circuit had also held that ‘crimes of recklessness cannot be crimes of violence.’…But we did not distinguish which element of a crime required a mens rea greater than recklessness to qualify as a crime of violence.”
The jurist pointed to an unpublished 2019 opinion by this district’s Div. Seven in which a defendant’s conviction for violating §273.5 was upheld where he threw a phone in the direction of the victim, striking her in the face, as illustrative of why the distinction matters. She opined:
“[E]ven if the initial act of force is intentional, the defendant may have acted without intending that the force be directed at anyone else; a defendant may intentionally throw an object, but not know, or intend, that the object would hit another person. Even then, however, the defendant may be guilty of battery if the thrown object hits another person.”
Directed at Another
Wardlaw declared:
“Cal. Penal Code § 273.5(a) is not a categorical crime of violence because the offense ‘requires only the mens rea of intending to do the assaultive act,’ and does not require intent, or knowledge, that the use of force is directed at another.”
Addressing the government’s contention that the “plain language” of §273.5, which to a defendant who “willfully inflicts corporal injury,” makes clear that the statute only criminalizes intentional conduct directed at another person, she quoted from published California cases and wrote:
“California appellate courts have uniformly interpreted the ‘willfulness’ requirement in § 273.5 to apply to the initial act only….Indeed, the government identifies no California case that squarely holds otherwise.”
She added:
“As a three-judge panel, we are generally bound by our circuit’s precedent….However, we ‘should reject the prior circuit’ precedent when it is ‘clearly irreconcilable with the reasoning or theory of intervening higher authority.’…Our previous caselaw holding that §273.5 is categorically a crime of violence is clearly irreconcilable with Borden and Gomez.”
The case is U.S. v. Lopez, 24-3268.
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