Alleged Wife-beater Can't Be Charged in CA for HI Assault

By William Peacock, Esq. on July 19, 2013 | Last updated on March 21, 2019

He called her a fat cow. She mentioned his past patronage of prostitutes. After some pushing, shoving, and scuffling, he punched her in the face, resulting in a detached retina and permanent loss of vision in the eye. She told the Hawaiian police that she had fallen. They returned from their vacation two days later.

They were married that fall, but with nuptials did not come bliss. Barely a year after they tied the knot, he became incensed at her regular tardiness in returning home from work. A verbal argument ensued. Soon thereafter, he was squeezing her throat until she lost consciousness. When she awoke, he threatened her adult sons, and then suffocated her again until she lost consciousness.

She came forward days later out of fear for her sons' safety.

Michael Fortner was charged with numerous domestic violence offenses, including charges related to the activities in Hawaii. The obvious question was: can he be charged in Monterey, California for conduct that occurred wholly in Hawaii?

The answer should be no, but because we’re lawyers, and all of us (understandably) hate wife-beaters, the District Attorney tried to find a way — and the trial court agreed!

Criminal jurisdiction is relatively simple. The basic rule in California is that jurisdiction lies in the “territory of which it is committed.” Common sense, right? There are three additional exceptions provided for by statute that create a sort of long-arm jurisdiction for very specific situations:

Section 27: where any part of the crime was committed in this state.

The criminal act supporting the Hawaii charges was the actual, single punch. That occurred in the hotel room in Hawaii. This section does not apply.

Section 778: where an offense commences outside of the state, but is consummated within the state, such as through the use of an agent.

The punch commenced in Hawaii. The prosecution tried to argue that the eye injury, and treatment, were the consummation, but the injury was a direct and immediate result of the punch. Section 778 does not support jurisdiction.

Section 778a: where a person, with intent to commit a crime, does more than a de minimis part of the crime in the state (prepares or consummates the crime in California).

Again, this doesn’t apply. The punch was not planned for in advance. The prosecution contended that he “chose to exercise control over Jane Doe by verbal and physical abuse” and that he intended for the punch to affect her behavior once they returned to California. That argument stretches far beyond the statute and prior case precedent.

We applaud the effort, however.

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