The National Institute of Justice refers to violent crime as the use of force or threatening to use power, and it classifies these crimes in four broad ways: homicide, rape and sexual assault, robbery, and assault. If you are facing charges for any of these specific violent crimes, it is imperative that you understand how the law in California defines them, and their legal implications.
Violent crimes remain a thorny issue in the state, and as per the Public Policy Institute in California, this rate rose by 1.5% in 2017 to 451 incidences for every 100,000 residents. California Criminal Lawyer Group has excellent experience defending clients facing violent crimes, and we have prepared this article complete with the possible defenses we can utilize to defend you.
Murder in the First Degree
As per PC 189, someone can be convicted of murder in the first degree under these circumstances:
- Ambushing the victim or torturing them
- Setting off an explosive device
- Using a weapon of mass destruction
- Willful or deliberate killing
According to Senate Bill 1437, someone can be convicted of felony murder if they completed, attempted, or participated in a felony, or aided or abetted murder in the first-degree with the intent to kill. If convicted, murder in the first degree has the following penalties:
- 25 years to life in a state prison
- A life sentence in state prison without parole
- Capital punishment
Murder in the Second Degree
This crime is defined as any felony murder that does not meet the criteria for first-degree felony murder. If convicted, you could get 15 years to life in a California state prison.
As per Penal Code 192(b), this crime happens when someone kills another accidentally under these circumstances:
- During criminal activity that is not a dangerous felony
- During a lawful act which may lead to fatalities, e.g., by not exercising caution
If convicted of involuntary manslaughter, you could face a jail sentence of two, three, or four years. The judge may also order you to pay a monetary fine of $10,000.
California Senate Bill 1437
This law (SB 1437) is a felony murder rule that is evoked when a defendant:
- Is responsible for directly killing a person during a felony or attempted crime
- Is found to have aided and abetted or significantly participated in a homicide
- Killed a peace officer in the line of duty maybe while stopping the robbery
Felony murder attracts a sentence of 25 years to life in state prison, life in prison without the possibility of parole (LWOP), and the death penalty (capital punishment). The California Penal Code 190.3 PC provides a list of factors the jury can examine to see if a defendant qualifies to get a death penalty. These aggravating factors include:
- Nature and circumstances under which the said capital crime was executed such as victim impact evidence from surviving family members
- Other violent criminal acts
- Previous felony convictions
The jury will also consider mitigating factors that make the homicide not as harmful such as being relatively young or mentally incapacitated when committing the crime. Playing a minor role in the killing or being pressured into doing so are other mitigating factors.
Your lawyers can fight a death penalty charge through executive clemency, automatic state appeal, and by applying to overturn this decree.
Rape and Sexual Assault
Simple Sexual Assault
Section 271 (1) of the Criminal Code defines simple sexual assault as an attack of sexual nature, including kissing, intercourse, and touching where force or threats are used to coerce victims. This crime does not require evidence of physical injury to prove the offense happened. When simple sexual assault is tried as an indictable offense, it carries a maximum penalty of 10 years in prison.
Aggravated Sexual Assault
This crime happens when the victim suffers grievous injuries, is disfigured, maimed, or is at risk of dying owing to the sexual offense. As per section 273 (1) of the Criminal Code, the maximum penalty for aggravated sexual assault is a life sentence.
Please note, the victim's sexual history cannot be used to defend you, and therefore, sex workers can sue for rape and sexual assault by their clients. Anyone below 18 years cannot legally consent to sexual activity, and consequently, you cannot claim the victim agreed to it.
Sexual Assault with a Weapon
Section 272 of the Criminal Code defines this crime as the use, carrying or threatening a weapon when committing a sexual offense. The charges for assault with a firearm still hold even when the gun is an imitation and not the actual thing such as brandishing a toy gun to evoke fear.
Historical Sexual Assault
This term is generally used by service providers to describe attacks that were commissioned in the distant past, such as when the victim was a child or teenager.
Meeting the Burden of Proof in Sexual Assault Cases
When pursuing any of the above rape and sexual battery charges, the prosecutor has the burden to prove the following beyond reasonable doubt:
- The motive of this assault was to commission sexual abuse, attain sexual arousal and gratification
- The victim did not permit these sexual advances
- The assailant touched the victim's private parts directly or indirectly using force
- The victim was medically incapacitated or disabled and could therefore not consent or defend themselves
- The victim was forcefully made to touch their private parts or another person's
Charges for Sexual Assault/Battery in California
Under the California Penal Code Section 243.4, misdemeanor sexual battery offenses attract a sentence of up to 6 months in county jail and a fine of up to $2,000. The monetary penalties could go up to $3,000 if the victims were in the employ of their assailant. Felony sexual assault attracts a sentence of up to 2, 3, or 4 years in state prison and monetary fines of up to $10,000.
Registration of Sex Crimes in California
Sex crimes usually require the offender to register with public registries so people can know of their heinous actions and protect themselves as desired. There are three classifications of sex crimes that necessitate civil registration, as explained below:
- Tier one – sex crimes like misdemeanor sexual assault and battery or indecent exposure are considered tier one and have minimal requirements. PC 290 statute requires perpetrators to register as a tier one sex offender for a minimum of ten years.
- Tier two – mid-level sex crimes such as vulgar conduct with a person below 14 years and non-coerced sexual activity with a minor fall under this category. If convicted, offenders must register with the California sex registry for a minimal 20 years.
- Tier three – people convicted of felony crimes like rape, sex trafficking of minors, sexual activity with children under ten years are classified as tier three offenders. They must remain in sex offender registries for life and repeat offenders of first and second tiers face the same requirements.
Adhering to Sex Registration Laws in California
Sex offenders of any category must register with the local police office within five days of after sentencing or within five days of leaving jail. They must report to a local police station at least once within five days of marking a birthday or within five days of starting a new year.
If you are convicted on any of the above sex crimes, you must adhere to these additional compliance requirements for registered sex offenders in California:
- Cannot live near a school or other places with children
- Report any name change within five days
- Register with campus police within five days of reporting to college or getting a job there and register within five days of graduating college
- Report to your local police station inside of five days of moving to a new residence
- Homeless offenders report to the police every 30 days
- Offenders battling dangerous medical disorders must update their registration with local agencies after every 90 days
- High-risk sex offenders are required to wear a GPS monitoring
- Serve extended parole and probation sentences for other active convictions
Reprieve from Senate Bill 384
Sex assault and sexual battery are gross offenses in the state of California, and people convicted of these crimes suffer as they remain in public sex offender registries. Senate Bill 384 (SB 84) was proposed to change registration requirements for convicts, and it takes effect on January 2021.
Under this law, some convicts will be erased from public records, thus extending a lifeline to non-violent offenders. SB 384 will channel resources to protect the public from violent sex offenders without overspending on low-level offenders. Nonetheless, offenders convicted in subsequent sex crimes or gross felonies upon release from prison will not be eligible for this remedy.
- Breaking into someone's residence while the occupants are there and threatening to use force before making away with property
- Wearing a mask and brandishing a weapon when stealing, e.g., from a bank
- Drugging a person until they lose consciousness then stealing from them
- Being caught stealing, e.g., from a warehouse then threatening the owner with a gun
Robberies registered under Penal Code 211 PC attract a host of penalties and assessments depending on whether the theft was committed in the first or second degree.
First Degree Robbery
The following examples qualify as robbery in the first degree:
- Stealing from a driver or passenger in a taxi, bus, subway, etc.
- Robbing someone while inside a vacant structure like a warehouse
- Taking from someone who has just transacted from an ATM and is still near said ATM or bank
- The penalties for the first-degree robbery include a prison sentence of three to nine years in state prison.
Second Degree Robbery
The California Penal Code defines second-degree robbery as an act of stealing that doesn't meet the criteria for first-degree theft, and these charges carry a lesser sentence of two, three, or five years in a California prison. Also, you could get felony probation and be asked to pay a monetary fine of up to $10,000.
Penal Code 12022.7 PC is an enhancement for robberies where victims suffered substantial bodily injury. In such a case, you could get an extra three to six years to the original prison sentences.
Penal Code 12022.53
This law stipulates longer sentences when robberies are commissioned with a firearm. If you are caught using a gun in a robbery, you get the following penalties:
- Ten years for bringing and using a weapon during a robbery
- Twenty years for bringing and intentionally using a weapon in a robbery
- Twenty-five years to life if you inflict severe bodily harm or death with a gun when commissioning a robbery
Robbery with Many Victims
A single count of robbery is computed by how many victims were there and not what items were taken. Therefore, stealing from one person who was in the company of two other friends will add up to three counts of robbery.
In the same breath, taking several items from one person is termed as one count of robbery as per the law in California.
California's Three Strikes Law
Violent felony robbery falls under the state's Three Strikes Law. Therefore, people with other robbery convictions on their record who are charged with any other felony, they face twice the standard sentencing guidelines.
What are the Possible Legal Defenses for Robbery?
Being slapped with first or second-degree robbery charges is dangerous as it comes with an assurance of doing time, and this will disrupt your life in many ways. As your defense attorneys, it is our job to ensure you don't get sent to prison and here are some legal arguments we can use to achieve this aim:
- Someone else committed the robbery, and so it's a case of mistaken identity
- You did not apply forceful means like grabbing the victim or evoke fear to take ownership of their items
- You though the property was rightfully yours, so you mistook the item, e.g., a purse with your own as they look the same
- The victim or law enforcement officers are falsely accusing you
The California Penal Code Section 240 defines assault as any criminal and willful attempt to commit a violent injury upon a human being provided with the person the ability to do so. Simple assault crimes may be undertaken without physical contact with another person but merely exerting intentional force to make them afraid or they expect bodily harm. For example, clenching a fist and punch someone standing next to you qualifies as a simple assault.
PC 240 classifies simple assault as a misdemeanor offense, and the accompanying penalties usually include a monetary fine of up to $1000 and a prison term of six months in county jail. If you are apprehended again for a similar or different crime, having a simple assault charge on your file means law enforcement will treat you as a repeat aggressor. Simple assault cases need a great defense lawyer so you can have these charges dropped before they wreak havoc now or later in your life.
Hurling insults at someone in a public or private setting is considered as verbal assault, and it attracts certain punishment due to the emotional, mental, or psychological trauma suffered by the victim. If the recipient of this verbal exchange has a recorded voicemail message, this evidence is admissible in court. You are then liable for penalties as stipulated by PC 422(a) and could get a jail sentence of up to one year or a probationary sentence that comes with obligatory counseling.
Felony verbal assault attracts a prison sentence of 2, 3, or 4 years, but if there is evidence and you don't have previous convictions such as domestic abuse, the case is built on ambiguity. California Criminal Lawyer Group will fight to have these charges dismissed as they are based on hearsay or misinterpretation.
Felonious or aggravated assault occurs when a person maims, wounds, or otherwise endangers another person's life. This attack happens with the explicit intention of causing bodily harm with extreme indifference to humans, and it can happen anywhere, including the victim's home. The severity of aggravated assault depends on the following conditions:
The Intent of the doer - the reason behind aggravated assault can qualify the crime as such provided the prosecutor can prove this motive existed.
Degree of harm inflicted - when a victim is gravely injured, or there is a good chance they will succumb to this bodily harm, this attack is deemed as aggravated assault.
Using a deadly weapon - California Penal Code Section 245 stipulates that wielding a firearm when attacking someone qualifies as aggravated assault even if the gun was not discharged.
Status of the victim - any violence meted out to the police, teachers, firefighters, or individual communities like LGBT, etc. is considered as aggravated assault in California. However, the assailant must know their target's status, and the victim must be in the line of duty such a policeman patrolling a neighborhood.
Charges for Aggravated Assault in California
Aggravated assault is considered a "wobbler" under California law, which means it can be charged as a misdemeanor or a felony depending on the circumstances under which these events transpired. If the victim suffers minor injuries and no dangerous weapon was used, you will face misdemeanor charges which come with these penalties and assessments:
- Jail term of up to one year
- Monetary fines of up to $10,000
- Restitution to cover damages, e.g., lost income
- Summary probation
- Going for Anger Management classes
- Community service hours
Similar penalties apply to felony aggravated assault only with an extended jail sentence which is upon the discretion of the presiding judge. Aggravated assault falls under the "Three Strikes Law" where previous strikes for other felonies make you eligible for a sentence of 25 years to life.
Challenging Aggravated Assault Charges
Being charged with a crime of this nature means you get fired from your job and get a strike on your record. You need an astute defense attorney to represent you to see if the charges can be thrown out or at least diminished to a misdemeanor. As your legal counsel, we will aggressively pursue the following defenses:
- You had zero reasons for attacking this person
- You were defending yourself or someone else
- You could not commit this heinous act, e.g., the gun was unloaded
- You were falsely accused due to racial profiling or to meet arrest quotas
Find The Best Violent Crime Defense Attorney Near Me
Being convicted with a violent crime is scary and leaves your life in a precarious situation. You could spend years in jail, lose your livelihood and the custody of your children, plus many negative repercussions. Having your name in California's sex offender's registry is detrimental, and this could affect the rest of your life.
The California Criminal Lawyer Group has litigated many violent crime cases like rape, homicide, and assault and have reached amicable outcomes for our clients. Contact us today at 408-622-0204 to start benefiting from our expertise, and we can keep you from heading to jail or at the very least negotiate a lesser sentence.