A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.
B. Whoever commits battery against a household member is guilty of a misdemeanor.
C. Upon conviction pursuant to this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.
D. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years.
HISTORY:
Laws 1995, ch. 221, § 6; 2001, ch. 144, § 1; 2007, ch. 221, § 1; 2008, ch. 16, § 2.
Amendment Notes.
The 2007 amendment, effective July 1, 2007, added Subsections C and D.
The 2008 amendment, effective July 1, 2008, in Subsection C, inserted “or intervention”; and in the last sentence in Subsection D, twice substituted “shall not exceed” for “may not exceed”.
Notes to Decisions
Appeal.
Where defendant was charged with battery against a household member in violation of this section, he pled no contest to the charge in metropolitan court pursuant to 34-8A-6C NMSA 1978; a sentence was imposed consistent with the plea and disposition agreement. On appeal, the district court was not permitted to review his challenge to the validity of the plea; because the issue was not presented in metropolitan court, it was not preserved for review. State v. Spillman, 2010-NMCA-019, 147 N.M. 676, 227 P.3d 1058, 2009 N.M. App. LEXIS 291 (N.M. Ct. App. 2009), cert. denied, 147 N.M. 673, 227 P.3d 1055, 2010 N.M. LEXIS 161 (N.M. 2010).
Defendant, convicted of simple battery under 30-3-4 NMSA 1978 in the metropolitan court, was entitled to a de novo trial in the district court as part of his appeal from the metropolitan court; defendant would have been entitled to only an on the record appeal had he been convicted under 30-3-15 NMSA 1978, a statute which became effective five weeks before the offense committed by defendant and criminalized battery against a household member, but the state did not charge or convict defendant of this offense. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855, 1998 N.M. App. LEXIS 177 (N.M. Ct. App. 1998).
Defendant, who was convicted of battery in violation of 30-3-4 NMSA 1978, was entitled to a trial de novo in the district court rather than just an on-record review of the metropolitan court proceeding; the State could not contend that defendant was convicted of a crime involving domestic violence for purposes of 34-8A-6C NMSA 1978 because it did not prosecute defendant under 30-3-15 NMSA 1978. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855, 1998 N.M. App. LEXIS 177 (N.M. Ct. App. 1998).
Applicability.
42 U.S.C.S. § 1983 claims for false arrest failed because officer had credible information that plaintiff pushed his daughter's mother with his foot during a domestic dispute that placed their child in danger and injured the child enough to warrant calling paramedics to the scene, providing probable cause to arrest plaintiff for battery on a household member and abuse of a child. Griego v. City of Albuquerque, No. CIV 13-0929 JB/KBM, 2015 U.S. Dist. LEXIS 162696 (D.N.M. Oct. 20, 2015).
Where defendant, a father, struck his daughter, he was improperly convicted of battery against a household member under the Crimes Against Household Members Act, 30-3-15A NMSA 1978, because the daughter was not a household member. State v. Stein, 1999-NMCA-065, 127 N.M. 362, 981 P.2d 295, 1999 N.M. App. LEXIS 32 (N.M. Ct. App. 1999).
Construction.
In the context of a “household member”, the holding of State v. Stein, 981 P.2d 295 (1999), is limited to the minor children of the accused. A plain reading of 30-3-11 NMSA 1978 supports a conclusion that the definition of “household member” includes adult children of the accused. State v. Montoya, 2005-NMCA-005, 136 N.M. 674, 104 P.3d 540, 2004 N.M. App. LEXIS 128 (N.M. Ct. App. 2004), cert. quashed, 138 N.M. 587, 124 P.3d 565, 2005 N.M. LEXIS 527 (N.M. 2005).
Double jeopardy.
For purposes of double jeopardy under N.M. Const. art II § 15 and the Fifth Amendment, separate punishment was consistent with the legislative intent for battery against a household member and robbery as the elements of the battery contained an element that was extraneous to the elements of robbery. State v. Gutierrez, 2012-NMCA-095, 286 P.3d 608, 2012 N.M. App. LEXIS 64 (N.M. Ct. App.), cert. denied, 296 P.3d 490, 2012 N.M. LEXIS 276 (N.M. 2012).
Notice.
In a case involving a domestic dispute between a child and his stepfather, it was error for a trial court to allow the State to amend the petition and charge the child with assault on a household member, on the basis that the State failed to prove the original battery charge, 30-3-15A NMSA 1978, because in allowing the amendment the child was not provided with notice of the charges against him and because assault was not a lesser included offense of battery under the elements test pursuant to 30-3-12A NMSA 1978. In re Marlon C., 2003-NMCA-005, 133 N.M. 142, 61 P.3d 851, 2002 N.M. App. LEXIS 95 (N.M. Ct. App.), cert. denied, 133 N.M. 30, 59 P.3d 1262, 2002 N.M. LEXIS 432 (N.M. 2002).
Self defense by child.
When a child asserts self-defense as a justification for battery against his parent, the jury must first determine whether the parent’s use of physical discipline was reasonable under the circumstances. A child has a limited right of self-defense, which may only be asserted in the face of physical discipline when the parent or legal guardian uses excessive force. State v. Denzel B., 2008-NMCA-118, 144 N.M. 746, 192 P.3d 260, 2008 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 144 N.M. 594, 189 P.3d 1216, 2008 N.M. LEXIS 436 (N.M. 2008).
Unit of prosecution.
Over several hours, defendant kicked, punched, and hit his girlfriend, the girlfriend’s child, and the family’s puppy; he was convicted, inter alia, of two counts of battery against a household member: the evidence showed distinct acts interrupted by intervening events. State v. Stewart, 2005-NMCA-126, 138 N.M. 500, 122 P.3d 1269, 2005 N.M. App. LEXIS 125 (N.M. Ct. App.), cert. denied, 138 N.M. 586, 124 P.3d 564, 2005 N.M. LEXIS 523 (N.M. 2005).
Research References and Practice Aids
Cross references.
Multiple convictions of battery or aggravated battery, 30-3-17 NMSA 1978.
Definitions, 31-26-3 NMSA 1978.