People v. Burton (4th Dist., Div. 2): PC 273.5 is a Crime of Moral Turpitude

Mr. Burton was convicted of first-degree murder.  Burton took the stand in his own defense and was impeached with his two prior felony convictions for violating Penal Code section 273.5.  A Fourth District panel affirms the conviction.  The published portion of the opinion holds that PC 273.5 is categorically a crime of moral turpitude, dismissing a contrary holding from the United States Ninth Circuit Court of Appeal in Holder v. Morales-Garcia.

Crimes of moral turpitude constitute a category of crimes which have particular consequences in immigration proceedings.  Also, in California, whether a crime is one of moral turpitude may determine whether a conviction for that crime may be admissible evidence for impeaching a witness.  As you may imagine, the definition of a crime of moral turpitude is less than precise.  "A willingness to do evil" and "indicative of a depraved heart" don't provide a lot of guidance.  Simple assault or battery have been held to not be crimes of moral turpitude.  However battery and assault upon persons with whom one has a "special relationship" are crimes of moral turpitude.  So to determine whether 273.5 is a crime of moral turpitude requires examining the relationships to which it applies. Relationships within which the members are right to expect "stability and safety" are said to be such "special relationships".  

Penal Code section 273.5 is sometimes given the shorthand of the "domestic violence"crime  because it criminalizes willfully causing a traumatic injury to someone with whom you have, or had, a particular relationship.  And as society has changed its views of intimate relationships over time, the California Legislature has expanded the pool of relationships encompassed by 273.5.

Originally 273.5, in pertinent part, only prohibited a husband from beating his wife.  By 1977 people were shacking up without getting married so 273.5 was expanded to cover cohabiting members of the opposite sex.  Then the gender limitations were deleted and the law was expanded to cover people who were engaged, had formerly been engaged, were in a dating relationship, had formerly been in a dating relationship, had formerly cohabited, had formerly been married, and persons with whom you had child in common (babymammas and babydaddys).  

Prior to the latest expansion, California District Courts of Appeal had always held 273.5 to be a crime of moral turpitude.  After the expansion to cover "former cohabitants" and persons "formerly in a dating relationship", the United States Court of Appeal for the Ninth Circuit had occasion to decide Morales-Garcia.  The Ninth Circuit held that because the relationships covered by 273.5 had been so diluted as to include relationships where nobody would reasonably expect "stability and safety" it was no longer a crime of moral turpitude.  

This panel disagrees, deferring to the legislature's determination that such relationships are "special" enough.  It is a reasonable holding.  The best part of the opinion is where it states the legislature's definitions of particular relationships.  "Dating" includes "frequent intimate associations and . . . the expectation of sexual involvement".  Which begs the question whether both partners have to share that expectation.  I have frequently found myself in relationships where there is a divergence of expectations concerning such matters.