Battery with Bodily Injury

My question involves criminal law for the state of: California PC 243 D

The situation: I and my domestic partner live with my 81 year old father. We have a verbal tenancy agreement that in exchange for his personal and home care - fixing his meals, bathing him, managing his medication, transporting him to medical appointments, etc, we are entitled to live here with him rent free and with a grocery budget that pays for his and part of our groceries. My partner stays at home full-time with my father to care for him while I am working during the day.

I have two sisters who do not live here with us. The relationship with my older sister is deeply strained, but usually we are able to be civil to one another. There is a history of physical and sexual abuse between us with her as the perpetrator toward me from childhood, but now I am a giant, and she an average sized woman.

One night, she had brought my father home after a day trip, and we got into an argument, and I repeatedly told her that I wanted her to leave, which she refused to do. Something in the look on her face brought all these memories of her abuse toward me flooding back, and I told her that if she didn't leave I would make her leave. Again she refused, so I grabbed her arm and started trying to move her toward the front door, three feet away from where she had been sitting. I tripped on a shoe and lost my balance, and I fell on her, which bumped out heads together. I weigh 400 pounds. I never intended to harm her, but I she suffered a cut to her eyebrow and one to the back of her scalp, both of which required some stitches. I feel horrible about what happened.

I have no priors, and the police released me on my own recognizance. There's no court date yet.

I'm in the process of getting a lawyer and finding some counseling, but I quess my question is was I justified in expecting her to leave when I told her to leave? In my mind, I am a tenant in this house, and have the right to peace in my home, and that once I asked her to leave she became a trespasser. I know that that is probably not a good legal strategy, but that's what I was thinking.

Please help. What can I do?

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I quess my question is was I justified in expecting her to leave when I told her to leave?

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That depends.

Where was your father when this was transpiring? Had he asked her to stay to visit, or had he gone off elsewhere in the house, expecting that she would be immediately departing upon dropping him off?

While it is generally true that once you ask someone to leave and they do not, they can be considered trespassers, it is also generally true that all residents of a domicile have the right to have whomever they please in as guests. If your father invited her to stay or there was an understanding between them that she would be staying to visit, she was not a trespasser.

At the moment, all you can do is obtain counsel and wait for your court date. Additionally, DO NOT contact your sister at all. If your father invites her over, make yourself scarce - either leave altogether or stay in your room for the duration of her visit. Do not call or text her, and do not answer any calls or texts from her. If she requires assistance when taking your father out for daytrips, ask your partner to handle it. You don't want to be seen as trying to intimidate her.

Working in your favor, you have no priors and the whole thing was an accident. Your attorney will have further suggestions for you. Good luck.

My father was sitting in his television room, a bedroom we have for that purpose because of how loudly he needs his television, with the door closed. My sister and partner and I were in the living room. She was not providing him with any care or visiting him at that point, he did not know that she was still in the house, and she was having a conversation with he and I.

I should also note that my father is a kindly old man who doesn't remember what he ate from day to day; he asked me how I received the contusion on my forehead this morning, because he forgot that the entire event occurred. My point being is that he is going to be confused and/or misremember all of the events of that day. I other words, he can't really give consent to visitors.

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Quoting bigdaddybear

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I should also note that my father is a kindly old man who doesn't remember what he ate from day to day; he asked me how I received the contusion on my forehead this morning, because he forgot that the entire event occurred. My point being is that he is going to be confused and/or misremember all of the events of that day. I other words, he can't really give consent to visitors.

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And pops can't be a very good witness that can help the prosecutor or the defense ether.

So basically, it is your word as well as your partners word against your sister. Your sister was ether an invited party or a trespasser.

If your sister was dropping your father off and you had asked her to leave, and she refused, she is now a trespasser.

Are you saying when you tripped, you grabbed onto your sisters arm to support yourself before falling on her,

or were you pushing your sister by the arm out the doorway when you tripped and fell on her?

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Quoting bigdaddybear

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Again she refused, so I grabbed her arm and started trying to move her toward the front door, three feet away from where she had been sitting. I tripped on a shoe and lost my balance, and I fell on her, which bumped out heads together. I weigh 400 pounds. I never intended to harm her, but I she suffered a cut to her eyebrow and one to the back of her scalp, both of which required some stitches. I feel horrible about what happened.

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How did your bumping heads with her cause two lacerations to the opposite side of the head? I'm guessing that her telling of the tale differs from yours.

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I have no priors, and the police released me on my own recognizance. There's no court date yet.

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No citation? If there is a citation, there is a court date. if no citation, then it would seem that they are possibly forwarding the matter to the DA.

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I'm in the process of getting a lawyer and finding some counseling, but I quess my question is was I justified in expecting her to leave when I told her to leave? In my mind, I am a tenant in this house, and have the right to peace in my home, and that once I asked her to leave she became a trespasser. I know that that is probably not a good legal strategy, but that's what I was thinking.

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Yes, you may have an argument to make that you were removing an unwelcome guest from your home. However, unless she agrees that the injury was an accident, the law does not state that you may assault someone to remove them. The law allows you to use reasonable force to defend yourself from assault, or, to detain someone for the police with the intent of placing them under arrest. The question will be whether or not a trier of fact agrees that your actions were reasonable or her injuries were accidental.

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Please help. What can I do?

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Consult legal counsel.

Understand that PC 243(d) can be charged as either a felony or a misdemeanor, so it can be a serious offense. If the DA chooses to file on it as a felony, you can expect a warrant to be issued and the police or the Sheriff's Office to come by and arrest you at their convenience, not yours. It might be best to get ahead of the issue and hire an attorney now who can talk to the police and the DA and try and preempt any surprises.

There are actually a couple of issues. While you may be a tenant, which would normally give you the ability to allow or deny access, your father ALSO lives there, and while you argueably have rights, so does he, including the right to have guests and visitors you don't like. Unless HE was in agreement about wanting her to leave, you likely aren't going to be seen as having lawful authority to demand her departure if dad wanted or invited her to enter or stay.

Then, even if there was a trespass, when you place your hands on someone to remove them, you risk causing injury, which can give rise to both criminal charges of battery and civil lawsuits for damages.

You don't indicate that she was being physical at all, only refusing to leave (which may have been lawful, depending on where dad stood on the issue). But when you put your hands on another person, especially a 400 pound man on an average women, and the situation isn't an obvious one of self defense, you absolutely risk a criminal battery charge. The better course, if she was only resisting leaving but NOT being physical herself, would have been to call police to deal with the potential criminal trespass. Your past with her MAY have relevency if your case ever gets to a sentencing stage, but your physical stature isn't likely to play in your favor when being the initiator of physical action against woman, regardless of the history between you in adolesence.

Ultimately, you and dad may either have to come to an agreement that sis not be around, or you may have to come up with some other living arrangement, because if the two of you are at odds over whether sis is welcome or not, you're leaving it up to police to determine, and thus far you're 0 for 1.

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Quoting cdwjava

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How did your bumping heads with her cause two lacerations to the opposite side of the head? I'm guessing that her telling of the tale differs from yours.

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Her lacerations occurred because I landed on her when I fell, which hit our heads together. She fell on a small tray that was near the door. We fell facing each other. Does that make sense?

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Understand that PC 243(d) can be charged as either a felony or a misdemeanor, so it can be a serious offense. If the DA chooses to file on it as a felony, you can expect a warrant to be issued and the police or the Sheriff's Office to come by and arrest you at their convenience, not yours. It might be best to get ahead of the issue and hire an attorney now who can talk to the police and the DA and try and preempt any surprises.

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I was arrested that night and released two days later. At the time of my release, there was no court date given. Anyway, I am searching for an attorney.

Thanks all for your comments.

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There are actually a couple of issues. While you may be a tenant, which would normally give you the ability to allow or deny access, your father ALSO lives there, and while you argueably have rights, so does he, including the right to have guests and visitors you don't like. Unless HE was in agreement about wanting her to leave, you likely aren't going to be seen as having lawful authority to demand her departure if dad wanted or invited her to enter or stay.

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My father is of limited capacity. That's why I live here. She had already bidden him goodnight, then just stayed to talk to my partner and I. I believe that I was within my rights to ask her to leave. I do agree that I probably should have called the police instead. Well, it's a mess, regardless.

What you need to consider here, is whether you can overcome this burden and your partner will testify in a supporting manner to the same. This is the content of the jury instruction that will be given, when trying your case. Without sounding condescending, I don't believe you will have a problem convincing the jury the transition from physical removal, to unsteady fat man, was anything but an accident, with a witness. I believe proving your right to exert force initially, will be. I can only suggest you discuss the issue with an attorney who can assist you in this burden.


http://www.justia.com/criminal/docs/...3400/3475.html

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3475. Right to Eject Trespasser From Real Property

The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/ lawful occupant) may use reasonable force to make the trespasser leave.

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.

[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]

When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.

The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.

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Why were you released? If you were released on your own recognizance, then there should have been a court date set for your arraignment. If you were released because the DA did not file in time for your arraignment, then you may or may not be charged later on.

And, yes, I understand what you are saying, but it's a very convenient accident ... if she has a different story, then I suspect that her account may well be the easier version to believe. But, that will ultimately be up to a court to decide. And if the injury occurred while you were unlawfully battering her (laying hands on her without cause) then it won't really matter that it was an accident.

Having cared for an elderly relative....I highly advise an appointment with an Elder Care attorney. You need to discuss how your dad's finances are handled (are you on the checking account as a co-signer), what rights you have, his care (setting up power of attorney, will, end of life wishes) and your rights with that as well. You should also have it in writing in all aspects in which capacity you can act in various situations.