Prior convictions for attempted domestic battery cannot be used to enhance a domestic battery conviction, the Fourth District Court of Appeal, Division Two, ruled March 30 in the appeal of a Riverside Superior Court case.
Johnathan Kiger, of Winchester, was sentenced to 16 years in prison for domestic battery with a prior, and assault by means of force likely to cause great bodily injury, in a bench trial under Riverside Superior Judge Kelly Hansen Aug. 18, 2020.
“Case law consistently holds that an attempt does not constitute a prior conviction unless the relevant statute expressly includes attempts.”
From the ruling
Kiger’s then-girlfriend alleged that he got drunk, started an argument with her, slapped her, pushed her head against a car, dragged her by her leg, and strangled her into unconsciousness Aug. 19, 2019, according to the published appellate ruling.
Kiger had two relevant convictions, one for attempted domestic battery in 2016, and one for domestic battery in 2009.
The appellate panel ruled that Riverside Superior Court erred by sentencing Kiger with a prior enhancement when his only recent conviction was for attempted domestic battery.
“Case law consistently holds that an attempt does not constitute a prior conviction unless the relevant statute expressly includes attempts,” the ruling said.
The panel referenced the 2014 case People v. Jernigan, the 2005 case People v. Reed, the 2000 case Garcetti v. Superior Court, and the 1987 case People v. White, which all distinguished between attempted crimes and completed crimes.
The appellate panel directed Riverside Superior Court to resentence Kiger.
Kiger is currently held at Folsom State Prison, and was eligible for parole in August, 2030, according to the California Department of Corrections and Rehabilitation Inmate Locator system, although that may change due to the appeal.
Fourth District Court of Appeal, Division Two Presiding Justice Manuel Ramirez wrote the opinion, which Associate Justices Carol Codrington and Marsha Slough joined.
Ksenia Gracheva of the Office of the Attorney General represented the People.
Sole practitioner Richard Schwartzberg, of San Francisco, represented Kiger.
Trial case number SWF1907584.
Appellate case number E075551.
Read the opinion here.
