Could S.F. gallery owner who sprayed homeless woman with a hose face jail time? Here’s what experts say

Collier Gwin, owner of Foster Gwin Gallery, right, has been charged with misdemeanor battery over an incident in which he sprayed a homeless woman with a hose.

Collier Gwin, owner of Foster Gwin Gallery, right, has been charged with misdemeanor battery over an incident in which he sprayed a homeless woman with a hose.

Stephen Lam / The Chronicle

The crime of misdemeanor battery — the “willful and unlawful use of force or violence upon the person of another” — is punishable by up to a year in jail and a $2,000 fine. But someone without a criminal record is rarely sentenced to jail, even for drenching a homeless woman with a garden hose.

Instead, the likely sentence for a first offender is a fine and probation, possibly with orders to perform community service and get counseling to avoid a recurrence.

“If the defendant has any criminal background, that could change the equation,” said Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles and a former federal prosecutor. But for Collier Gwin, who was arrested Wednesday for the Jan. 9 incident outside his gallery on Montgomery Street in San Francisco, “it is a long shot that he would face any custodial time” if he has no criminal record, she said.

On the other hand, this is not an everyday case.

If Gwin is convicted and faces sentencing, it’s likely that “the high profile and the viciousness of the behavior would play a part and maybe lead to actual incarceration,” said Hadar Aviram, a professor at UC College of the Law in San Francisco. Though a jail sentence for misdemeanor battery is uncommon, she said, it is “certainly not unheard of.”

District Attorney Brooke Jenkins, whose office issued the arrest warrant, said Gwin “will face appropriate consequences for his actions.”

A battery conviction requires proof that the defendant intentionally touched the victim, or caused contact, in a “harmful or offensive manner.” That can include punching, shoving, rock-throwing, spitting or spraying with a hose. Defendants can argue that they had not deliberately caused contact or had acted in self-defense, or, for a parent, that they were reasonably disciplining a child.

If the injury is serious, the charge can be increased to aggravated battery, a felony punishable by two to four years in state prison.

Gwin said he sprayed the woman, who has been identified only as “Q,” after she repeatedly came to the area outside his gallery, overturned garbage cans, left possessions outside and acted belligerently. He said he let her sleep in his entryway for several days and called police and social services to try to get help for her, but nothing worked.

The woman was taken to a hospital afterward, but there hasn’t been any public information yet on whether she was injured by the spraying. Gwin initially declined to apologize, then did so on Sunday after an outcry from some religious and community leaders.

“I completely broke,” Gwin told ABC News . “I‘m not equipped or trained to deal with a long-term citywide problem like this.... I’m committed to making amends and helping others.”

Apart from his actions, Gwin’s case may be affected by the attention it has received. The video has drawn millions of viewers on Twitter. On Wednesday afternoon, more than a week after the incident, someone vandalized Gwin’s gallery. Superior Court judges are elected by the voters, and the judge who hears the case will be aware of the public response.

“But for the publicity, a custodial sentence would be very rare,” said Franklin Zimring, a UC Berkeley law professor. “Unless there is an injury generated by the incident, I doubt that county prosecutors can provide a recent case where custody was the outcome in non-injury episodes.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @Bob Egelko