Articles Posted in Assault and Battery

Published on:

My client was represented by another lawyer for 18 months. Not satisfied with the fact that his lawyer wanted him to plead guilty to stabbing two people at a party (violations of Penal Code Section 245(a)) he hired me. The Defendant told me he had been to a party where one of his friends had brought a NOS tank. NOS is nitrous oxide and is used by many young people to get high. The owner of the house where the party was being held didn’t want the NOS at the party and told the Defendant and his friends to leave. Before the Defendant could leave he was confronted by numerous party goers who decided they would attack him and teach him a lesson.

The Defendant was confronted by multiple individuals who were threatening him. He found a knife near the NOS tank and was waving it in front of him in order to ward off the attackers. He knew he had not stabbed anyone and certainly hadn’t stabbed anyone intentionally. A friendly stranger stepped in and grabbed the Defendant’s hand and led him out of the party to a place of safety across the street. During the trip across the street to safety the stranger noticed his hand had been cut by the knife in the Defendant’s hand. The Defendant apologized for cutting him and left the area. Before he left, he threw the knife in the bushes. After leaving he decided throwing the knife away wasn’t a good idea and he went back to retrieve it. Of course, when he did that he was arrested for a stabbing that had occurred at the party and for cutting the stranger’s hand.

At the police station he was questioned by the police. The reports stated that the Defendant had confessed to stabbing the two victims at the party. My client denied ever having said any such thing. Fortunately, the conversation at the station was recorded. The previous lawyer had not listened to the tape recording so he didn’t know when the police officer testified at the Preliminary Hearing as to what was in his reports, that the report itself was either a lie or just inaccurate. Either way, when I listened to the audio it was clear the client was telling the truth, he never confessed to stabbing anyone and , in fact, had denied it.

Published on:

Assault is defined in Penal Code Section 240 as “…an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault often is charged at the same time as a Battery, which is defined in Penal Code Section 242. Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.”

Assault is commonly referred to as battery that didn’t get completed. If someone tries to batter another person but isn’t successful it’s an assault. The District Attorney charges both crimes in an effort to convict the defendant of at least one crime. For example, if someone swings his fist at another person but misses, it’s an assault but not a battery because no touching occurred.

Fights that occur often result in charges of assault and battery. There might be lots of swings and misses and a few punches connect resulting in the “unlawful use of force or violence upon another”. The violence has to be “unlawful”. If an assault or battery is justified then it’s not unlawful. Righteous use of self-defense or defense of another is a defense to assault and battery. That defense makes the battery lawful and within the acceptable limits of violence allowed by the law.

Published on:

There has been a lot of publicity over the case in Florida where the unarmed teenager, Trayvon Martin, was killed during a confrontation with George Zimmerman, the neighborhood watch member. Florida’s “Stand Your Ground” law has been used as an argument to justify the shooting of this young man. What does California’s self-defense law say about when and how the shooting of an unarmed person can be justified?

Every self-defense case turns on the facts of the confrontation, the history of the individuals involved, the relative size of the combatants, the knowledge, if any, of the history of violence between the participants, and a host of other factors. To hear the commentators pontificate on whether or not the shooting was justified without full knowledge of the facts irritates this criminal defense attorney. No one thinks it acceptable to shoot an unarmed man without any justification at all. However, the commentators in this case seem to give their opinions on the case without any reference to the actual facts but, instead, base their opinions on their political or racial biases. Facts drive self-defense cases from both the prosecution and the defense. The law is usually clear. It’s the facts that are confusing and often contradictory (depending on the source) and applying those facts to the law is the difficult part. If you already have a bias or your mind is made up based on your personal belief then why examine the facts or the law?

The law of self-defense in California is clear. An aggressor in the initial fight cannot later claim self-defense. How do you define who the aggressor is? Is it the one who threw the first punch? Is it the guy who got out of his car and follows someone who he thinks, rightly or wrongly, is suspicious? Many times the role of aggressor is clear. He punched me without any justification. Then I fought back. Then he beat me to a pulp. Well, of course, I am still the victim even though I fought back. The aggressor cannot claim self-defense just because the person he attacked fought back. But, the difficulty in the tough case is what actions led to the actual physical fight? Were threats made, postures taken, which would lead a reasonable person to believe that if he didn’t hit first he would be severely injured or killed if he didn’t act quickly? If so, even a first strike can be justified.

Published on:

Recently a man was convicted in Orange County California of murder. Essentially this Defendant was initially attacked by a group of gang members who chased him and threw beer bottles at him. In response the Defendant attacked the group who had initially assaulted him with a gun. He shot at the deceased and after wounding him, shot him again several times killing him. The issue for the jury became how far can one go in defending himself against an attack?

Self-defense is a right available to anyone in California. However, there are a few limitations. Usually, you can’t claim self-defense if you’re the one to start the fight. But, what if you don’t start the fight? In fact, what if you are simply attacked, but the person attacking you chose the wrong person to attack because it just so happens you have a gun. Can you shoot the attacker? The answer is probably not.

If attacked you don’t have to retreat. However, you have to use proportionate force to the assault being perpetrated on you. In other words you can only use the amount of force to defend yourself, that was used against you in the first place. If someone hits you with his fist you generally don’t have the right to use a gun in response. But, each case turns on its own facts. For example, if your attacker is much larger than you and you have a reasonable fear he is going to beat you to death or beat you until you are seriously injured you may very well be able to use deadly force to stop the attack.