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Articles Posted in Assault or Battery

You probably heard about the four Chicago youths who kidnapped a mentally disabled 18-year-old male, tied him up, assaulted, tortured him, and taunted him with profanities against white people and Donald Trump. Perhaps you saw the video. The assailants actually live-streamed this 30-minute ordeal over Facebook; the video is revolting. The youths are being charged with multiple offenses and while the hate crime charge is getting the most attention, the most serious sentence exposure for these four relates to the mental disability of the victim.

In Illinois, as in California, certain crimes are “aggravated” when the victim is mentally disabled. This can substantially enlarge the potential sentence. For example, in the case of the Chicago four, the kidnapping charges alone stand to enhance the sentence by an additional 25 years (5 years max for kidnapping but up to 30 years when the victim is disabled).

In California, when the victim of a crime is disabled, whether mentally or physically, it can be an aggravating factor that can tack many additional years on to the defendant’s sentence as it applies to certain crimes. Many misdemeanor assault and battery crimes become a felony when the victim is disabled. Surprisingly, in California, unlike Illinois and many other states, kidnapping is not elevated to an aggravated crime if the victim is disabled.

Penal Code Section 243.4 defines sexual battery as follows:  Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.  The law recognizes the difference between friendly touching, a friendly touch on the arm, a gentle touch on the back, and unwanted touching.  A friend, or even someone you have just met, may walk up and gently touch the arm of another as a friendly gesture.  But, anyone who touches another on an intimate part of their body, without their permission, is an assault.  The law describes “intimate part” as follows: anus, groin, sexual organ or buttocks of anyone and the breast of a female.  This type of touching is sexual in nature and therefore characterized as “sexual assault”, which is different than assault which is described as the unwanted touching of another.  The law further explains that the unwanted touching of another’s intimate part, under Penal Code Section 243.4, is done for the purpose of sexual gratification.

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Penal Code 242 – Battery Laws in California

The crime of battery is often confused with the crime of assault. This may be due to the frequently used term “assault and battery” which is most commonly used rather than just assault or just battery. There is a difference between the two and the following is an explanation of the difference.

The distinct difference between assault and battery is that, battery requires that the defendant have actual physical contact with the victim. Whereas with assault, you can be charged with assault even if you did not actually, physically touch the victim. The definition of battery is the willful and unlawful use of force or violence on someone else. My clients are often surprised to learn that you can be charged, and found guilty, of battery even if there was no injury or injuries. All that is required is that the victim was touched in an offensive way.

In California, Assault With A Deadly Weapon (ADW) is defined as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another. Simple Assault is defined as an unlawful attempt, coupled with a present ability to commit a violent injury on another person.

It is surprising what can be considered a deadly weapon. Clients come to me after being arrested for ADW and ask me how they can possibly be charged with this crime when they had no weapon. They are always shocked when I explain to them that even something as seemingly innocent as a shoe can be considered a weapon. One of the elements of this charge is “assault that is committed by means of force that is likely to cause great bodily injury to another.” So, using the example of a shoe, if someone is being kicked repeatedly in the head and/or other parts of the body, the District Attorney can charge you with ADW, alleging that the shoe was the deadly weapon.

A “deadly weapon” is defined as any object that is capable of producing death or great bodily injury to a person. For example, swinging a beer bottle at another, threatening to stab someone in the neck with a sharp pencil or using your car to hit another person or another person’s car while they are inside, all qualify as deadly weapons.

ADW is usually charged as a felony. However, the prosecution can decide to file it as a misdemeanor depending upon the circumstances. This is referred to as a “wobbler” meaning that it can go either way. In deciding whether to file as an ADW felony or as a misdemeanor, three important facts must be determined:

1) The type of weapon allegedly used;
2) Whether or not the alleged victim sustained injuries and if so, how serious; and
3) The nature of the victim. Meaning, was the alleged victim an officer, firefighter or other “protected” person.

To be convicted of ADW, the prosecution must prove that the defendant did assault someone (keeping in mind the legal definition of assault) and that the assault was committed with a deadly weapon, or other means of force likely to cause great bodily injury.

Unfortunately, innocent people are accused of ADW all the time. The accuser often times exaggerates or lies to the police officers when, in reality, it may have been an act of self-defense or defending another.

Fortunately, there are defenses to Assault with a Deadly Weapon. Having an experienced criminal defense lawyer who has experience in defending ADW charges is curtail. Because the alleged victim does not have to have sustained any injury in connection with the ADW charge, it is easy to be falsely accused of and arrested for this crime.

A skilled Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. These defenses include:

1) The inability to actually carry out the assault;
2) Self-defense or defense of another;
3) Consent (an example would be participation in a fight club);
4) Lack of intent;
5) Insufficient evidence; and
6) Misconduct or failure to follow proper procedure by the law enforcement agency.

Anyone being accused of Assault With A Deadly Weapon, should seek the advise of an attorney who is familiar with all the Courts in the County within which the case is pending. An attorney, who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be in a better position to get the charges dismissed or reduced.

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A 54 year old man was arrested in Laguna Niguel after being accused of assaulting the owner of the home where he was employed as a Gardner. According to witnesses, the Gardner and the owner began arguing over instructions being given by the owner. The argument escalated at which point the Gardner reportedly hit the owner with a gardening tool. The Gardner then reportedly went back to his truck and came back with a power hedge trimmer and began chasing the man with it. This man is facing, at the very least, assault charges and, more than likely, the Orange County District Attorney will file assault with a deadly weapon charges.
In California, the law defines Assault With A Deadly Weapon (ADW), as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another. Simple Assault is defined as an unlawful attempt, coupled with a present ability to commit a violent injury on another person.

ADW, is usually charged as a felony. However, the prosecution can decide to file it as a misdemeanor depending upon the circumstances. This is referred to as a “wobbler” meaning that it can go either way. In deciding whether to file as an ADA felony or as a misdemeanor, three important facts must be determined: 1) The type of weapon allegedly used; 2) Whether or not the alleged victim sustained injuries and if so, how serious; and 3) The nature of the victim. Meaning, was the alleged victim an officer, firefighter or other “protected” person.

A “deadly weapon” is any object that is capable of producing death or great bodily injury to a person. For example, swinging a beer bottle at another, threatening to stab someone in the neck with a sharp pencil or using your car to hit another person or another person’s car while they are inside, all qualify as deadly weapons.

To be convicted of ADW, the prosecution must prove that the defendant did assault someone (keeping in mind the legal definition of assault) and that the assault was committed with a deadly weapon, or other means of force likely to cause great bodily injury. Unfortunately, in Orange County, California, innocent people are accused of ADW all the time. The accuser often times exaggerates or lies to the police officers when in reality, it may have been an act of self-defense or defending another.

Fortunately, there are defenses to Assault with a Deadly Weapon. Having an experienced criminal defense lawyer who has experience in defending ADW charges is curtail. Because the alleged victim does not have to have sustained any injury in connection with the ADW charge, it is easy to be falsely accused of and arrested for this crime.

A skilled California Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. Some of the defenses a good criminal defense attorney might use are: 1) The inability to actually carry out the assault; 2) Self-defense or defense of another; 3) Consent (an example would be participation in a fight club); 4) Lack of intent; 5) Insufficient evidence; and 6) Misconduct or failure to follow proper procedure by the law enforcement agency.

Anyone being accused of Assault With A Deadly Weapon in Orange County, California, should seek the advise of an attorney who is familiar with all the Courts in Orange County. An attorney who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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A 54 year old man was arrested in Laguna Niguel after being accused of assaulting the owner of the home where he was employed as a Gardner. According to witnesses, the Gardner and the owner began arguing over instructions being given by the owner. The argument escalated at which point the Gardner reportedly hit the owner with a gardening tool. The Gardner then reportedly went back to his truck and came back with a power hedge trimmer and began chasing the man with it. This man is facing, at the very least, assault charges and, more than likely, the Orange County District Attorney will file assault with a deadly weapon charges.
In California, the law defines Assault With A Deadly Weapon (ADW), as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another. Simple Assault is defined as an unlawful attempt, coupled with a present ability to commit a violent injury on another person.

ADW, is usually charged as a felony. However, the prosecution can decide to file it as a misdemeanor depending upon the circumstances. This is referred to as a “wobbler” meaning that it can go either way. In deciding whether to file as an ADA felony or as a misdemeanor, three important facts must be determined: 1) The type of weapon allegedly used; 2) Whether or not the alleged victim sustained injuries and if so, how serious; and 3) The nature of the victim. Meaning, was the alleged victim an officer, firefighter or other “protected” person.

A “deadly weapon” is any object that is capable of producing death or great bodily injury to a person. For example, swinging a beer bottle at another, threatening to stab someone in the neck with a sharp pencil or using your car to hit another person or another person’s car while they are inside, all qualify as deadly weapons.

To be convicted of ADW, the prosecution must prove that the defendant did assault someone (keeping in mind the legal definition of assault) and that the assault was committed with a deadly weapon, or other means of force likely to cause great bodily injury. Unfortunately, in Orange County, California, innocent people are accused of ADW all the time. The accuser often times exaggerates or lies to the police officers when in reality, it may have been an act of self-defense or defending another.

Fortunately, there are defenses to Assault with a Deadly Weapon. Having an experienced criminal defense lawyer who has experience in defending ADW charges is curtail. Because the alleged victim does not have to have sustained any injury in connection with the ADW charge, it is easy to be falsely accused of and arrested for this crime.

A skilled California Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. Some of the defenses a good criminal defense attorney might use are: 1) The inability to actually carry out the assault; 2) Self-defense or defense of another; 3) Consent (an example would be participation in a fight club); 4) Lack of intent; 5) Insufficient evidence; and 6) Misconduct or failure to follow proper procedure by the law enforcement agency.

Anyone being accused of Assault With A Deadly Weapon in Orange County, California, should seek the advise of an attorney who is familiar with all the Courts in Orange County. An attorney who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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David Brent, a high-profile prosecutor in the Orange County District Attorney’s office, was arrested on Christmas Day for punching his wife in the face.

Roshawn Brent, 27, called 911 while standing next to the couple’s parked car in the city of Huntington Beach. It appears Mr. Brent decided discretion was the better part of valor and beat a retreat, taking the car keys with him.

What makes this story interesting is that the Orange County District Attorney appears to have waited several days before putting out a press release. Past history suggests they are quick to triumph following a high-profile arrest or conviction. So why the delay? It couldn’t be to avoid embarrassment. The arrest was noted in the Los Angeles Times and the Orange County Register. Also, did Huntington Beach Police sit on the story? Don’t they have press releases? If they did wait to tell, why so?

Domestic Violence is a common crime, cutting across all demographics. When a high official in the Prosecutor’s office is arrested for such a crime, it becomes doubly important to notify the public so that the public accurately perceives the DA’s office as being fair and impartial.

Whether you live in Tustin, Santa Ana or Huntington Beach, if you are charged with domestic assault, call an experienced Orange County criminal defense attorney right away to assist you.

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You can’t say he wasn’t creative. Adolfo Aparicio, a documented Santa Ana gang member misidentified himself as an illegal alien so that he could avoid capture for an attempted murder charge for which he was being sought.

Turns out Aparicio got into a domestic dispute with his wife and mother in law. When the cops came, he took off but soon returned and took some shots at his wife, who fortunately, wasn’t hurt. Aparicio fled the area again and was arrested in Arizona, where he gave a fake name. But his fingerprints did him in: they matched a wanted out of Santa Ana for the attempted murder of his wife.

Aparicio is getting deported….to Santa Ana. He’ll face the criminal charges. It will be interesting to see if the District Attorney tries to charge it as a gang offense, which this incident doesn’t smack of. In either event, Mr. Aparicio is going to need good legal representation, because like it or not, his gang background will come up and may work against him.

Whether you live in Newport Beach, Fullerton or San Clemente, if you are charged with domestic assault or battery, call an experienced defense attorney right away to assist you.

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Last week, at A.E. Wright Middle School in Calabasas, five junior high students were kicked by fellow students. These attacks came after a Facebook group sent a message around to students claiming it was “Kick a Ginger Day” which meant students were supposed to kick redheads at their school. Police believe the kids got the idea from a “South Park” TV episode. No arrests were made and it is unclear if these suspects will be prosecuted.

Committing a crime against someone based on their hair color may be viewed as a hate crime. It’s likely, though, that these suspects will be treated informally by the court, rather than be charged with a crime since they were so young and likely had no prior criminal record. Juveniles are increasingly prosecuted more frequently because parents cannot or will not supervise their own children and teach acceptable social values. Now the courts deal with misbehavior and crime, a task for which they are ill-suited. Whether you live in Laguna Hills, Orange, or Yorba Linda, if your child has been charged with assault or battery, call an experienced criminal defense attorney right away to assist you.

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On Wednesday of this week, Mike Tyson was at LAX airport and was being followed by paparazzi. He exchanged words with one of the photographers, Tony Echevarria. The two men got into an altercation and both claimed the other one hit them first. Eventually, both men got into a physical fight and Echevarria was punched in the face four times. Tyson claims he was defending his family who was being swarmed by the paparazzi. They were both arrested on suspicion of battery and want to press charges.

Battery can be either a misdemeanor or felony offense, depending on the severity of the incident and if weapons were used. Here, there were no weapons used, but Tyson, a former boxer, clearly had an advantage over the photographer. Often, photographers get too close to celebrities and their families or they say something that the celebrity finds offensive and the celebrity will get physical with the photographer. A similar incident to this one involved rapper Kanye West and another photographer at LAX airport. It is likely that Tyson and the photographer will have to take anger management classes as part of their punishment.

Whether you live in Newport Beach, Fullerton or San Clemente, if you are charged with assault or battery, call an experienced defense attorney right away to assist you.

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