Crimes Against a Person
Crimes against a person are generally among the more serious and challenging cases to defend because a putative victim claims injury. This victim is often willing to cooperate with the prosecution and is interested in the defendant convicted and made to pay, with both custody time and money.
Least serious is simple battery (Penal Code § 242), which can be charged in response to any person’s harmful or offensive touching (no matter how minor) of another. Simple battery is a misdemeanor unless committed against a custodial officer, transportation worker, passenger, school employee, or juror, in which case it can be charged as a felony. A battery against a peace officer or emergency responder can also be charged as a felony if there is an injury (Penal Code § 243(b), (c)). Battery causing great bodily injury (“GBI”) (Penal Code § 243(d)) can be charged as a felony with a maximum prison sentence of four years.
Assault is intentionally putting another person in reasonable apprehension of an imminent battery. Simple assault is a misdemeanor (Penal Code § 240) unless committed against specified persons (including peace officers) in which case a felony filing is allowed. More serious assaults can be charged as felonies. Assault with a deadly weapon or with force likely to cause great bodily injury (Penal Code § 245(a)(1),(4)) can be filed as a felony with a four year state prison maximum, unless committed against a peace officer or emergency responder (Penal Code § 245(c), in which case the maximum is five years. Assault with a firearm (Penal Code §245(a)(2) also carries a four-year maximum, unless committed against a peace office or emergency responder (Penal Code § 245(d), in which case the maximum is eight years or nine years if the firearm is semi-automatic. Assault with a stun gun or a less lethal weapon (Penal Code §244.5(b)) has a three-year maximum, unless the assault is on a peace officer or fire fighter, in which case the maximum is four years. Assault with caustic chemicals also has a four-year maximum (Penal Code § 244). Assault with a machine gun or assault weapon (Penal Code § 245(a)(3) can carry up to twelve years.
Robbery (Penal Code § 211) is the use of force or fear to commit larceny. First degree robbery is committed in an inhabited dwelling or while the victim is using an ATM or while the victim is driving or a passenger on a transportation vehicle. First degree robbery carries a maximum sentence of six years, although home invasion robbery committed in concert with two or more people carries a maximum of nine years. All other robbery is second degree and carries a maximum sentence of five years. A related charge is carjacking (Penal Code § 215), for which the maximum sentence is nine years.
Two particularly brutal felonies with possible life exposure are mayhem and torture. Mayhem is the malicious removal or non-temporary disabling of another person’s body part or permanent disfigurement. Simple mayhem (Penal Code § 203) has an eight-year maximum sentence, while aggravated mayhem (Penal Code § 205), where the defendant acted intentionally and with extreme indifference, carries a sentence of life with the possibility of parole. Torture (Penal Code § 206) is the infliction of GBI with the intent to cause extreme suffering, and is punished by life in prison.
Kidnapping (Penal Code § 207(a)) is the detaining of a victim by force or fear and moving that person a substantial distance without consent. It carries up to an eight-year prison term, unless of a child under 14 by a non-parent, in which case the maximum sentence is 11 years. Taking a hostage to avoid arrest (Penal Code § 210.5) can carry up to a ten-year term. Aggravated kidnapping (Penal Code §§ 207(b), 209, 209.5, 210), in which the crime occurs during a robbery, carjacking, or sex offense, or for ransom and the victim dies or suffers GBI, can result in a life sentence. Less serious than kidnapping is child abduction, where the defendant is charged with either taking or withholding a child from the lawful custodian. This accusation is sometimes made during custody disputes between separated parents and can be charged as a misdemeanor or felony depending on the circumstances.
Human trafficking (PC 236.1) has in recent years emerged as a charge on which prosecutors have focused their attention on, especially to protect exploited minors. A human trafficking charge is based on allegations that the defendant detained the victim to perform forced labor or commercial sex acts. It carries a maximum sentence of 12 years, unless the minor has been recruited to commit a felony, in which case the maximum sentence is 20 years. Human trafficking can be an easier case to make and carries stiffer sentences than related charges like pimping and pandering (Penal Code § 266h).
A less serious crime in the same category of kidnapping and human trafficking is false imprisonment (Penal Code § 236), whereby the defendant is accused of restricting the free movement of the victim. False imprisonment can be charged as a misdemeanor, or if the defendant used force or menace, as a felony with a maximum three-year sentence. False imprisonment is sometimes offered as a lesser charge to more serious felonies for the purpose of a plea bargain.
Crimes against vulnerable persons can lead to serious charges, especially if there is significant injury. Child abuse (Penal Code § 273a) can be charged if it is alleged that the defendant caused or permitted a child in his custody to suffer pain or injury or placed a child in danger while acting with criminal negligence. Child abuse can be charged as a felony with a six-year maximum term or as a misdemeanor, depending on the extent of the harm or danger to the child. This crime is subject to the defense of reasonable discipline: a parent or guardian may use justifiable physical force to correct a child’s errant behavior. The prosecution has the burden to negate this defense and must prove beyond a reasonable doubt that a reasonable person would not find it necessary and reasonable for the defendant to use of force on the child under the circumstances. A similar offense is abuse of an elder or dependent adult (Penal Code § 368), which can be charged a felony with a four-year maximum sentence or a misdemeanor.
Many people are surprised to learn that words and non-violent actions directed at a person can lead to potentially serious charges. Criminal threats (Penal Code § 422) can be charged based on the allegation that the defendant made a verbal threat of death or GBI with the specific intent to frighten the victim who was indeed reasonably frightened. Stalking (Penal Code 646.9) can be charged based on the allegation that the defendant engaged in two or more harassing actions and made a credible threat towards a victim. Both criminal threats and stalking can be charged as a felony or misdemeanor. Terrorizing another person with a symbol (such as a swastika) or a burning cross (Penal Code § 11411) can be charged as a felony or misdemeanor. Obstructing a victim’s religious practice by threat (Penal Code § 11412) is a straight felony with up to a three-year term. Terrorizing someone with a destructive device (Penal Code § 11413) can carry up to a seven-year sentence.
A hate crime (Penal Code § 422.6) is one committed against a victim based on race, ethnicity, gender, nationality, religion, disability, or sexual orientation. A misdemeanor alleged to be a hate crime can be filed as a felony. A felony alleged to be a hate crime can carry up to an additional three years, or if the defendant acted in concert, an additional four years.
Crimes against a person can also be charged with enhancements increasing possible prison exposure. An allegation that the victim suffered GBI carries an additional three years (Penal Code § 12022.7). An allegation that the defendant used a weapon carries an additional year (Penal Code § 12022). The allegation that the defendant personally used a gun can increase the prison exposure up to ten years. If the defendant personally used a gun in the commission of specific felonies (including murder, mayhem, robbery, carjacking, assault, kidnapping, sex crimes, any felony punishable by life), he can face an additional ten years for use of the gun, an additional 20 years for the discharge of the gun, and an additional 25 to life for discharge of the gun causing GBI or death. If it is alleged that the defendant committed a felony while participating in and for the benefit of a criminal street gang (Penal Code 186.22(b), additional enhancement ranging from four years to fifteen to life may be alleged.
Many crimes against persons, if charged as felonies, are deemed “strikes” under California’s Three Strikes Law (Penal Code § 667). A single strike conviction can result in a two-fold higher prison sentence for any subsequent felony with no eligibility for probation. Three strike convictions can carry a life sentence. Assault with a deadly weapon or firearm, robbery, mayhem, torture, kidnapping, criminal threats, and any crime causing GBI are all strikes (Penal Code §§ 667.5(c), 1192.7(c)).
Crimes against a person not only typically carry longer prison exposure, they can also lead to additional collateral consequences. These crimes usually have adverse immigration consequences for non-citizens. An arrest or conviction for such a crime against a person is more likely to hurt the defendant’s employment or career license. Convictions for these crimes result in restrictions on the ownership of firearms. Criminal protective orders restricting contact with the victim are usually ordered after an arrest or filing of a complaint for a crime against a person. Conviction of a violent crime is a mandatory consideration for spousal support and child custody during family law proceedings.
An allegation of a crime against a person is always a serious case which requires experienced and skilled legal counsel. Contact me today for a free confidential consultation.