Does Attempted Domestic Violence Prior = Enhancement?

As the reader of this article may be aware, Penal Code § 273.5(f)(1) allows for enhanced penalties for domestic violence for any person convicted of domestic violence within seven years of a prior conviction under 273.5(a) . . . “shall be punished by imprisonment in the state prison for two, four or five years, or in a county jail of not more than one year, or by a fine of up to six thousand dollars ($10,000), or by both the fine and imprisonment.”

When a person is convicted of violating § 273.5(a) without such a prior conviction within seven years, the punishment in county jail remains up to one year and the state prison exposure is two, three or four years and a fine of up to $6,000, or both the fine and imprisonment.

The relevance of this enhanced penalty was recently exemplified in the Fourth Appellate District published ruling of People v. Johnathan Howard Kiger (2022 DJDAR 3146), a case arising in the Riverside County Superior Court.

The ex-girlfriend of Mr. Kiger testified that in August 2019, Mr. Kiger became drunk and started an argument with her outside the Chris Burgers restaurant in Winchester.  During the argument, he slapped her, pushed her head against a car, dragged her by the leg and finally strangled her into unconsciousness.  Two Riverside County sheriffs observed a reddish discolored abrasion on the right of her neck, blood on her lip and a mark on her forehead.

There was also evidence that Mr. Kiger had committed three prior assaults – one on the same girlfriend and two on previous girlfriends.  The assaults on the previous girlfriends had resulted in a conviction in 2009 for misdemeanor domestic battery and a conviction in 2016 for attempted domestic battery.

In a bench trial, Judge Kelly Hansen found Mr. Kiger guilty of domestic violence with a prior (Penal Code § 273.5(f)(1)) and assault by means of force likely to cause great bodily injury (Penal Code § 245(a)(4), each with a domestic violence great bodily injury enhancement (Penal Code § 12022.7(e)).  In addition, Judge Hansen found true the one “strike” prior (Penal Code §§ 667(b) – (i), 1170.12) and one prior serious felony conviction (Penal Code § 667(a)). 

Consequently, Judge Hansen sentenced Mr. Kiger to sixteen years in state prison.

Mr. Kiger then appealed on multiple grounds, but this article’s scope will narrow down to his argument that there was insufficient evidence of domestic violence with a prior because his only sufficiently recent prior conviction was for an attempt, not a completed crime.

The Fourth Appellate District agreed, holding that Judge Hansen erred by finding Mr. Kiger guilty of domestic violence with a prior when his only relevant prior conviction in the last seven years was for attempted domestic battery. 

The Fourth Appellate District pointed out that “an attempt to commit a crime is an offense ‘separate’ and ‘distinct’ from the completed act.”  People v. Reed (2005) 129 Cal. App. 4th 1281, at 1283 (attempted possession of a controlled substance for sale does not qualify defendant for an enhanced sentence under Health & Safety Code § 11370.2); see also Garcetti v. Superior Court (2000) 85 Cal. App. 4th 1113, 1118, 1118 fn. 4 (attempted lewd act on a child does not trigger Sexually Violent Predator Act, Welfare & Institutions Code § 6600(a)); People v. Jernigan (2014) 227 Cal. App. 4th 1198 (a prior conviction for attempted forcible oral copulation (former Penal Code § 288a(c)(2)(A) did not make defendant ineligible for resentencing under Penal Code § 1170.126(e)(3)); People v. White (1987) 188 Cal. App. 3d 1128, 1133-1134 (attempted robbery did not trigger habitual offender statute, Penal Code § 667.7); and People v. Ibarra (1982) 134 Cal. App. 3d 413, 424-425 (attempted murder did not trigger three-year prior prison term enhancement under Penal Code § 667.5(a)).

Therefore, the appellate court concluded that Mr. Kiger’s conviction for domestic violence with a prior must be reduced to simple domestic battery and remanded the case for resentencing.

For more information about domestic violence sentencing issues, please click on the following articles: