CRIMES OF VIOLENCE
Our attorneys work exclusively on criminal defense cases. We want you to educate you about the law and provide you with the best defense. Call for a free consultation to discuss the particular facts and circumstances surrounding your arrest.
CRIMES INVOLVING VIOLENCE
Simple Assault/Simple battery / Aggravated Assault and Battery (Penal Code §§ 240 – 243); Assault with a Deadly Weapon (Penal Code § 245); Armed Robbery (Penal Code § 211/212); Assault on a Police Officer/Resisting Arrest (Penal Code §§ 244(c), 243(b), 148(a)); Carjacking (Penal Code § 215); Kidnapping (Penal Code §§ 207, 208, 209 and 209.5); Criminal Threats (Penal Code § 422); Sexual Assault (Penal Code §§ 261, 261.5, 288, 314, 647); Murder/ Manslaughter (Penal Code §§ 187-199)
ASSAULT AND BATTERY
Under California Penal Code Section 242, a battery is defined as willful use of force or violence on another person. Any physical contact to which the other person has not consented can be construed as battery. An assault under California Penal Code Section 240, is an attempt to commit battery.
In many assault cases our criminal defense lawyers in the Bay Area and Northern California successfully argue that the contact was made in self-defense, or that the alleged victim was engaged in mutual combat with the accused. Some situations involve an altercation amidst a crowd of people, in which case the true identity of the assailant may not be the person who was arrested. This can often happen when police receive conflicting statements from witnesses, who identify the wrong person. It is not uncommon for several witnesses who observed the same incident to give different accounts of what happened and who was involved. This makes it of the utmost importance that witness statements are tested and solidified by a defense investigator.
ASSAULT WITH DEADLY WEAPON
Assault crimes in California are specific. There are laws governing assault with a firearm, assault with a weapon other than a firearm, assault with force likely to cause great bodily injury, and assault on specific people, such as police officers, government officials, and emergency response people (paramedics, firefighters etc.). Because the penalties and exposure to incarceration vary depending on the assault crime charged, it is important to speak with an experienced assault attorney regarding the specific facts of a particular case.
Governed by California Penal Code section 245, an assault with a deadly weapon occurs when an individual is put in fear of bodily harm. The harm doesn’t actually have to occur, but if it does, the charge may be changed to assault and battery, which means contact occurred even if no injury did. A deadly weapon can obviously include firearms and knives, but even normally innocent objects, such as a bottle, a pencil, a rock, and a car, can be considered deadly weapons if they have the ability to cause harm. Even using an unloaded gun, because it causes fear, may fall into this category. Hands and feet are not usually deadly weapons, but kicking or biting an individual may be sufficient for a charge of assault with a deadly weapon because kicking and biting may cause serious bodily injury.
Assault with a deadly weapon can be charged as a misdemeanor, but is typically a felony punishable with up to 4 years of state prison. It is also a “strike” felony under California three strikes law. It is important to hire a criminal defense attorney experienced in defending against assault charges. There are many factors that need to be analyzed in order to put together the strongest defense. Some jurisdictions consider consent to be a defense, involuntary intoxication or insanity. Self defense or defense of another may also be claimed, but in protecting a person or property a person must use only that force which is reasonable to protect against the threat. Using potentially deadly force may not be reasonable to protect property because life is more valuable than property. Prevention of a crime may give someone the right to assault another with a deadly weapon. There are many possible defenses, and a trained assault with a deadly weapon attorney will be able to navigate you through the system and ensure that you are properly protected.
ROBBERY / CARJACKING
California Penal Code section 211 defines a robbery as taking someone else’s personal property from the person’s body or immediate possession, when accomplished by force or fear. Robbery is a felony offense, and depending on the specific circumstances, is punishable by 2 to 9 years in the state prison.
California Penal Code section 212 states that the fear can be fear of unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.
California Penal Code section 215 governs “carjacking,” which is the taking of a motor vehicle from the person or immediate presence of another, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.
A person charged with a robbery or “carjacking” offense is facing severe penalties. These types of offenses are “strike” offenses, which means that a conviction will seriously impact a person’s punishment for future criminal charges. It is not uncommon for overly zealous prosecutors to “over charge” cases, turning a simple battery where something was taken after the fact, into a serious felony robbery charge. Our attorneys are quick to point out the law in this respect. A true robbery occurs where the objective is to take an item, and the method of taking is by use of force or fear. A fight where an item may have been taken incidental to the battery should not qualify as robbery.
If you or someone you care about is facing robbery charges, it is important to hire an experienced robbery attorney as soon as possible. The sooner our office is retained on a case, the sooner we are able to advise the accused on the best defense and course of action. It is never a good idea for an accused to talk to law enforcement without an attorney.
California Penal Code sections 207, 208, 209 and 209.5, generally cover kidnapping. A kidnapping occurs where a person moves another person a substantial distance without consent by the use of force or fear. Force or fear means that the physical force was used or physical harm was threatened.
Aggravated kidnapping occurs where a person moves another person through the use of force, fear, or fraud under any of the following circumstances: the victim is a child under 14 years of age; the kidnapping is accompanied with a demand for ransom; the victim was caused to suffer serious bodily harm or death; the kidnapping during a carjacking pursuant to California Penal Code section 215 (see above), or a number of other laws that relate to kidnapping were violated. Aggravated kidnapping is a more serious charge, a conviction for which carries life in prison.
A simple kidnapping charge can carry a maximum of 8 years in California state prison, however an aggravated kidnapping involving a child under the age of 14 carries a maximum of 11 years of California state prison. These penalties can be increased depending on a person’s criminal history. A person charges with kidnapping should immediately consult with an experienced criminal defense attorney to discuss specific facts and potential maximum exposure.
CRIMINAL THREATS (TERRORIST THREATS)
Under California Penal Code section 422 the crime of “criminal threats” (formerly known as terrorist threats) occurs when a person threatens to kill or physically harm another and that other person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family. The threat must be specific and unequivocal, whether communicated verbally, in writing, or via electronically transmitted device
Criminal threats can be charged whether or not you have the ability to carry out the threat and even if you do not intend to execute the threat. Depending on the facts, a criminal threats charge may be a misdemeanor or a felony. If charged as a felony, it is a “strike”, meaning that a person convicted must serve 85% of the sentence.
An experienced criminal defense attorney will defend a criminal threats charge by attacking the specificity of the threat, or arguing its vagueness or ambiguity, or the circumstances under which the threat was made may have been such that the threatened person could not have reasonably feared for his/her safety.
Crimes involving sex are numerous and carry serious penalties and consequences. Most convictions require lifetime registration as a sex offender pursuant to California Penal Code section 290. Failure to register under this section can result in a probation violation as well as a new criminal charge for failure to register. Being falsely accused of a sex crime can have a devastating effect on a person’s life and reputation. For this precise reason, sex crimes cases often involve complicating factors, such as a motive to fabricate testimony or falsely accuse someone to gain an upper hand on family issues like divorce squabbles or child custody battles. The following offenses fall under the classification of sex crimes:
Indecent Exposure (Penal Code § 214.1); Engaging in Lewd Conduct; Solicitation for Lewd Conduct (Penal Code § 653f(c); Lewd Acts with a Child (Penal Code § 288); Communication with Minor with Intent to Commit Act (Penal Code § 266(j); Oral Copulation by Force (Penal Code § 288a(c)(2)); Possession of Child Pornography ( Penal Code § 311); Engaging in Prostitution/ Solicitation of Prostitution (Penal Code §§ 647(b), 653.20-653.28); Rape (Penal Code § 261); Sex Registration (Failure to Register) (Penal Code § 290); Sexual Battery (Penal Code § 243.4); Statutory Rape (Penal Code §§ 261.5(b)-(d))
REGISTRABLE SEX OFFENSES: http://meganslaw.ca.gov/registration/offenses.htm
REGISTRATION AS SEX OFFENDER
California Penal Code 290(b) requires those who have been declared California sex offenders to register their identifying information with their local law enforcement agency as long as they live, work, or attend school in California. In addition to the crimes specifically listed in California Penal Code 290(c), a judge may order you to register as a sex offender for any offense that he/she believes you committed as a result of “sexual compulsion or for sexual gratification”. The problem with the sex offender registration requirement is that prosecutors want registration on offenses that tangentially involve some sort of sex related element. Our position is that to require registration for every potentially sex-related offense undermines the important purpose of sex registration. The general public is unable to identify real threats from benign if everyone is forced to register. Clearly someone convicted for a violent rape is going to be a greater concern than someone who turned 18 before his or her respective girlfriend/boyfriend and was convicted for statutory rape.
FAILURE TO REGISTER
In order to prosecute a person for failure to register under California Penal Code section 290, the prosecutor must prove that the person knew that he or she was required register as a sex offender. Notice of the duty to register is typically given to a person convicted by written notice, verbal notice by the prosecutor prior to a guilty or no contest plea, verbal notice by the judge when a person is sentenced, or written and/or verbal notice by the Department of Corrections when a person is released from jail or prison. In addition to knowledge of the registration requirement, the prosecutor must prove that a person’s failure to register was willful. This means that the person must have failed to register on purpose.
The penalties for sex offenses vary greatly depending on the charge. Indecent exposure can be charged as a misdemeanor; however other offenses are felony “strike” offenses and, depending on many factors, can carry potential life sentences. It is important for a person facing sex-related charges to consult an experienced sex crimes attorney regarding the specific facts of a case to determine the potential penalties and defenses. If a person is convicted of an offense that requires registration under California Penal Code section 290, the law does not allow a judge to relieve that person of the duty to register. Similarly, an attorney cannot negotiate away the duty to register as a sex offender as part of a plea bargain agreement if someone is pleading guilty to an offense that requires registration. In order to avoid the registration requirement, a person must avoid pleading to an offense subject to the registration requirements of California Penal Code 290.
MURDER / MANSLAUGHTER
If you have been charged with Penal Code Section 187-199, call into our offices immediately for a consultation.
We at Nicholson Law Offices offer the experience you need and the attention that you deserve. We strive to protect your best interests throughout the entire criminal process – from the initial filing of charges through sentencing. Our experience criminal defense attorneys in California will provide you with a strong defense, regardless of the charge.