Assault

assault

Assault (PC 240):

Penal Code 240 states that an assault (simple assault) is an attempt to willfully commit violent injury on someone else. It is important to note that “assault” and “battery” are two distinct crimes; whereas in the case of battery, there was actual use of unlawful violence, assault is the attempt to do so.

 Penalties (PC 240):

Penal Code 240 simple assault is a misdemeanor in California. In most simple assault cases, the penalties carry up to 6 months in county jail and/or a fine up to $1,000.

Legal Defenses (PC 240):

In California, you may be charged and convicted of assault even if no one was hurt by your behavior. There are several legal defenses our team of attorneys can work with in order to fight your assault charges. Several defenses include: you were wrongly accused, you did not have the intent to act willfully towards another person, you acted in self-defense, and/or you did not have the ability to inflict force on the other person. There are many instances where you may believe that the only viable option is to use force to defend against danger and/or that the amount of force you used seemed reasonably necessary to defend against that danger.

call_now

Simple Assault in California – Laws & Penalties

Simple assault is a misdemeanor charge under California law. It is the least serious assault related charge.

The definition of simple assault is an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another“.

You do not need to make any physical contact with another person, or cause any injury to be charged and convicted with simple assault.

If you are convicted of misdemeanor simple assault, you could face up to $1,000 in fines and 6 months in jail, under California Law.

Simple Assault – California Penal Code Section 240-241

Simple Battery in California– Laws & Penalties

Simple battery can be charged as a misdemeanor or felony, a determination that is made by the judge.

It is defined as any willful and unlawful use of force or violence upon another person.

If you are convicted of simple battery, you could face up to $2,000 in fines and 6 months in jail, under California Law.

Simple Battery California Penal Code Section 242-243

Assault with a Deadly Weapon in California – Laws & Penalties

Assault with a deadly weapon, (not a firearm, see below) is a felony under California law.

It is defined as an assault in which you use any “deadly weapon” other than a firearm in a manner likely to produce great bodily harm.

Deadly weapon is deliberately not defined, and can be interpreted as broadly as possible. A deadly weapon could be a blunt instrument like a bat or a tire iron, a blade instrument like a knife, or even a moving vehicle if it is alleged you deliberately attempt to hit a person with your car.

If you are convicted of assault with a deadly weapon, you could face up to $10,000 in fines and 4 months in prison, under California Law.

Assault with a Deadly Weapon (not a firearm) California Penal CodeSection 245

Assault with a Firearm in California – Laws & Penalties

Assault with a firearm is similar to California’s assault with a deadly weapon offense, with one significant exception: it  does not have to be committed “in a manner likely to produce bodily harm”.

Just having a firearm or gun on your person or in your possession during the commission of any assault is enough to bring a felony charge of assault with a firearm.

If you are convicted of assault with a firearm, you could face up to $10,000 in fines and 4 months in prison, under California Law.

California Assault and Battery Enhancements and Aggregating Factors

All assault offenses have enhancements, exceptions, and aggravating factors the can increase penalties. These factors can be where the incident took place, such as on the grounds of a school, in a hospital or prison, or who the act was committed against.

Penalties will be increased if you commit an assault against a:

  • police officer
  • public safety officer or firefighter
  • teacher
  • prison guard
  • government official
  • highway worker
  • bus driver, cab driver or transit operator
  • many other special cases and enhancements

Please contact us for details on other special cases and penalty enhancements you may be charged with.” –source

Assault with Deadly Weapon

assault deadly weapon

Assault with Deadly Weapon “ADW” (PC 245):

The California crime of assault with a deadly weapon is defined under Penal Code 245 as an act committed with a so-called “deadly weapon,” or by means of force to produce great bodily injury.

 Penalties (PC 245):

This crime is considered a “wobbler,” meaning that the prosecutor may charge you with a misdemeanor or felony as it depends on the circumstances of the case. Key factors include: the type of weapon used, whether the victim sustained an injury, and whether the victim was a police officer, firefighter, or other protected individual.

If charged with a misdemeanor, you can expect to serve one year in county jail. If charged with a felony, you can expect to serve anywhere between 2-4 years in state prison.

Legal Defenses (PC 245):

One of the surprising factors of being charged with ADW is that you can be convicted of this crime even if no one sustained any injuries. Several defenses include: you were wrongly accused, you did not have the intent to act willfully towards another person, you acted in self-defense, and/or you did not have the ability to inflict force on the other person. There are many instances where you may believe that the only viable option is to use force to defend against danger and/or that the amount of force you used seemed reasonably necessary to defend against that danger.

Assault (Great Bodily Injury)

assault great bodily injury

Assault with Great Bodily Injury (PC 240(a)):

Assault with “great bodily injury” refers to significant and substantial physical injuries. Emotional and financial do not fall under this category, nor do insignificant or even moderate injuries. It is also important to note that the injury does not have to be permanent or severe. However, damages such as brain damage or paralysis do fall under PC 240(a). What constitutes as a GBI is determined by several key factors: the severity of the injury, the resulting pain, and/or any required medical care.

There are certain crimes you can be charged with that include an additional GBI penalty. For example, if you receive a “UI causing injury” charge, and the car accident led to another person (who survived the accident) to suffer great bodily injury, you could receive a GBI enhancement.

Legal Definitions

245. (a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm shall
be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(2) Any person who commits an assault upon the person of another
with a firearm shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not less than
six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another
with a machinegun, as defined in Section 16880, or an assault weapon,
as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
in Section 30530, shall be punished by imprisonment in the state
prison for 4, 8, or 12 years.
(4) Any person who commits an assault upon the person of another
by any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
(b) Any person who commits an assault upon the person of another
with a semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.
(c) Any person who commits an assault with a deadly weapon or
instrument, other than a firearm, or by any means likely to produce
great bodily injury upon the person of a peace officer or
firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his
or her duties, when the peace officer or firefighter is engaged in
the performance of his or her duties, shall be punished by
imprisonment in the state prison for three, four, or five years.
(d) (1) Any person who commits an assault with a firearm upon the
person of a peace officer or firefighter, and who knows or reasonably
should know that the victim is a peace officer or firefighter
engaged in the performance of his or her duties, when the peace
officer or firefighter is engaged in the performance of his or her
duties, shall be punished by imprisonment in the state prison for
four, six, or eight years.
(2) Any person who commits an assault upon the person of a peace
officer or firefighter with a semiautomatic firearm and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the
peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison
for five, seven, or nine years.
(3) Any person who commits an assault with a machinegun, as
defined in Section 16880, or an assault weapon, as defined in Section
30510 or 30515, or a .50 BMG rifle, as defined in Section 30530,
upon the person of a peace officer or firefighter, and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, shall be
punished by imprisonment in the state prison for 6, 9, or 12 years.
(e) When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument or firearm, and
the weapon or instrument or firearm is owned by that person, the
court shall order that the weapon or instrument or firearm be deemed
a nuisance, and it shall be confiscated and disposed of in the manner
provided by Sections 18000 and 18005.
(f) As used in this section, “peace officer” refers to any person
designated as a peace officer in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2.

Battery

battery

Battery (PC 242):

Battery is the actual use of force or violence on someone else. The legal definition is as follows: you touched someone else, willfully, in a harmful or offensive manner. If all three elements are not proven by the prosecutor, then you are not guilty of PC 242 battery. The second element, “willfully,” means that you acted willingly or on purpose; this does not mean that you necessarily intended to break the law, hurt someone else, or gain any advantage. In other words, whether or not you intended to commit battery, you must have intended to perform the motion that caused the battery to be guilty of the crime. For example, if out of anger you throw an object and it happens to hit a person in the head, you may be guilty of Penal Code 242 battery; even if you did not intend to commit the battery you are still guilty because you intended to throw it, which created the risk itself.

 Penalties (PC 242):

Simple battery that does not cause serious injury and is not committed against law enforcement or other protected persons- is a misdemeanor under California Penal Code 242. A misdemeanor conviction can potentially land you up to 6 months in county jail, fines up to $2,000, and/or a period of informal (summary) probation.

Legal Defenses (PC 242):

There are various defense techniques that our skilled criminal defense attorneys can use in order to help beat battery charges. In many scenarios, we can argue that you acted in self-defense or in defense of someone else or that you did not act willfully and that it was an accident.

Criminal Threats

criminal threats

Criminal Threats (PC 422):

‘Criminal threats’ is the crime of putting someone in fear. California Penal Code 422 PC defines the crime of “criminal threats” as the act of threatening to kill or physically harm someone and that person is placed in a state of reasonable fear for his/her safety, the threat is specific, and it is communicated verbally, in writing, or via an electronic source. Whether or not you have the ability to carry out the threat, you can still be charged under PC 422 even if you never followed through with the threat. For example, threatening to shoot someone while holding a gun is considered a crime under PC 422.

 Penalties (PC 422):

Penal Code 422 PC is a wobbler, meaning the prosecutors have the discretion as to file it as either a misdemeanor or felony. If convicted of a misdemeanor, you may face up to one year in county jail. If convicted of a felony, you may face up to 4 years in the California state prison. The presence of a dangerous or deadly weapon increases your sentence 1 year. A criminal threat conviction is also a “strike” under California’s three strikes law.

Legal Defenses (PC 422):

Even if threats were made, there are specific defenses that our team of criminal defense attorneys can use in order to disprove that your actions violated California Penal Code 422 PC, Criminal Threats. Several examples of defense include: If the threat was vague or ambiguous, if the recipient of the threat could not have been reasonably fearful of his/her safety or was not actually in fear, or if you made the threat via a threatening gesture rather than verbally, electronically, or in writing.

Domestic Violence

Domestic Violence

Domestic Violence (PC 273.5):

California domestic violence laws make it illegal to use physical force or to communicate threats of harm against an intimate partner or cohabitant. Common DV crimes include (but are not limited to): PC 243(e)(1) pc Domestic Battery, PC 273d pc Child Abuse, PC 368 Elder Abuse, PC 422 Criminal Threats, and PC 273.5 Corporal Injury to a Spouse or Cohabitant.

California DV laws also present serious legal issues for immigrants who are not United States citizens. Most DV offenses are crimes of ‘moral turpitude’ and a conviction will most likely result in deportation and lose the opportunity to eventually naturalize.

Penalties (PC 273.5):

The penalty and punishment under California domestic violence law depends on two factors: the seriousness of the injuries and the defendant’s criminal record. Judges will more than likely require that defendants attend a year long domestic batterers class. Most counties impose at least a 30 day jail sentence, even for first-time misdemeanor convictions. Most importantly, a California DV conviction goes on one’s permanent criminal record, which will be visible during any routine background check. This can make it difficult to gain employment and/or receive benefits.

Legal Defenses (PC 273.5):

Whether you are wrongly accused, you acted in self-defense, or you claim that the incident was an accident, we will work with you and the circumstances of your case to get the charges reduced or dismissed, and keep your criminal record clean.

Gang Related Crimes/Gang Enhancements

Gang

Gang-Related Violence/Gang Enhancements (PC 186.22):

Penal Code 186.22(a) is the crime of participation in a gang and Penal Code 186.22(b) is defined as the gang sentencing enhancement. The second part (b) is an actual sentence enhancement (an addition to the penalty) for anyone who commits a felony for the benefit of the crew. The first part of the law makes it illegal for anyone to participate in a street crew and/or assist in any felony criminal conduct.

California law punishes crew members on a grand scale and much more harshly than those people who have no gang ties; Penal Code 186.22 is part of the “STEP Act” (California Street Terrorism Enforcement and Prevention Act), which punishes gang members, and those who associate with gang members. In order to be convicted under Penal Code 186.22(a), these three elements of the crime must exist: that you actively participated in a criminal street gang, you know of the gang’s criminal activity and the members engaged in it, and you willfully assisted/promoted felonious criminal conduct by gang members.

Penalties (PC 186.22):

The participation in a criminal street gang (PC 186.22(a)) is a wobbler in California law; the prosecutor decides whether to charge you with a felony or misdemeanor. The maximum sentence you can receive if convicted under 186.22(a) PC is 1 year in county jail and/or fines up to $1,000.

If you are convicted of a felony, you may face 16 months to 2 years in the California State Prison. Penal Code 186.22(b) sets forth the actual California criminal gang sentencing enhancement. Assuming that the prosecutor can prove all the “elements” of the sentencing enhancement, a PC 186.22(b) conviction could mean anywhere from 2 to 15 years, or even 25 years-to-life, in prison.

 Legal Defenses (PC 186.22):

Potential legal defenses that can be used against a Penal Code 186.22 PC charge include (but are not limited to): arguing that you did not commit the underlying felony, that you are not an “active participant” in a criminal street gang, that you were not acting for the benefit of the crew, and/or arguing that the gang sentencing enhancement would go against “the interests of justice.”

Resisting Arrest

resisting arrest

Resisting Arrest (PC 148(a)(1)):

California Penal Code 148(a)(1) describes the crime most commonly referred to as “resisting arrest.” In California, “resisting arrest” law prohibits you from willfully obstructing, delaying or resisting a law enforcement officer or emergency medical technician (EMT) while he/she is performing his/her duties.

Penalties (PC 148):

Resisting arrest in California is a misdemeanor. You can receive up to 1 year in county jail and/or a maximum $1,000 fine.

Legal Defenses (PC 148):

Having a Penal Code 148 PC conviction on your record could turn any future encounter with a police officer into a negative one. Potential legal defenses to resisting arrest charges include (but are not limited to): you were acting in self-defense, you were falsely accused and/or your arrest was wrongful and/or the police were engaged in police misconduct.

142. (a) Any peace officer who has the authority to receive or
arrest a person charged with a criminal offense and willfully refuses
to receive or arrest that person shall be punished by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in a
county jail not exceeding one year, or pursuant to subdivision (h) of
Section 1170, or by both that fine and imprisonment.
(b) Notwithstanding subdivision (a), the sheriff may determine
whether any jail, institution, or facility under his or her direction
shall be designated as a reception, holding, or confinement
facility, or shall be used for several of those purposes, and may
designate the class of prisoners for which any facility shall be
used.
(c) This section shall not apply to arrests made pursuant to
Section 837.

145. Every public officer or other person, having arrested any
person upon a criminal charge, who willfully delays to take such
person before a magistrate having jurisdiction, to take his
examination, is guilty of a misdemeanor.

145.5. (a) (1) Subject to paragraph (2), notwithstanding any law to
the contrary, no agency of the State of California, no political
subdivision of this state, no employee of an agency, or a political
subdivision, of this state acting in his or her official capacity,
and no member of the California National Guard on official state duty
shall knowingly aid an agency of the armed forces of the United
States in any investigation, prosecution, or detention of a person
within California pursuant to (A) Sections 1021 and 1022 of the
National Defense Authorization Act for Fiscal Year 2012 (NDAA), (B)
the federal law known as the Authorization for Use of Military Force
(Public Law 107-40), enacted in 2001, or (C) any other federal law,
if the state agency, political subdivision, employee, or member of
the California National Guard would violate the United States
Constitution, the California Constitution, or any law of this state
by providing that aid.
(2) Paragraph (1) does not apply to participation by state or
local law enforcement or the California National Guard in a joint
task force, partnership, or other similar cooperative agreement with
federal law enforcement if that joint task force, partnership, or
similar cooperative agreement is not for the purpose of
investigating, prosecuting, or detaining any person pursuant to (A)
Sections 1021 and 1022 of the NDAA, (B) the federal law known as the
Authorization for Use of Military Force (Public Law 107-40), enacted
in 2001, or (C) any other federal law, if the state agency, political
subdivision, employee, or member of the California National Guard
would violate the United States Constitution, the California
Constitution, or any law of this state by providing that aid.
(b) It is the policy of this state to refuse to provide material
support for or to participate in any way with the implementation
within this state of any federal law that purports to authorize
indefinite detention of a person within California. Notwithstanding
any other law, no local law enforcement agency or local or municipal
government, or the employee of that agency or government acting in
his or her official capacity, shall knowingly use state funds or
funds allocated by the state to local entities on or after January 1,
2013, in whole or in part, to engage in any activity that aids an
agency of the armed forces of the United States in the detention of
any person within California for purposes of implementing Sections
1021 and 1022 of the NDAA or the federal law known as the
Authorization for Use of Military Force (Public Law 107-40), enacted
in 2001, if that activity would violate the United States
Constitution, the California Constitution, or any law of this state.

Death Penalty

death penalty

Charges in California that carry the death penalty are: first-degree murder with special circumstances (capital murder); sabotage; train wrecking causing death; treason; perjury causing execution of an innocent person; fatal assault by a prisoner serving a life sentence. A qualified attorney can help your friend or loved one avoid the death penalty, or life in prison. It is very important that you consult with an attorney as soon as possible when facing any of the above mentioned crimes.

Capital punishment in California

From Wikipedia, the free encyclopedia

Executions in California were carried out in the gas chamberat San Quentin State Prison. It was modified for the use oflethal injection, but has been returned to its original state, with the creation of a new chamber specifically for lethal injection.

Capital punishment is a form of punishment in the U.S. state of California. It was declared unconstitutional by a federal judge in California (Jones v. Chappell) on July 16, 2014.[1] The state of California is believed likely to appeal the decision to the Ninth Circuit Court of Appeals.[2]

The first recorded death sentence in the area that is now California took place in 1778 when four Native Americans were sentenced to be shot in the Presidio of San Diego forconspiracy to commit murder.[3][4] Since this time, 709 executions took place before the California Supreme Court decision in People v. Anderson finding the death penalty to violate the state constitution, and the later Furman v. Georgia decision of the United States Supreme Court finding executions in general as practiced to violate the United States Constitution, both issued in 1972. California reinstated the death penalty in 1978. In 2006, U.S. District Judge Jeremy Fogel halted executions in California after finding flaws in the state’s execution process.[5] The current hold is pending judicial review of a new execution chamber and new methodologies for executing prisoners. However, themoratorium is expected to expand in 2013 because of the current court battle between inmate attorneys and the State’s Attorney General. Though prison officials have revised their procedures since 2006, death row inmates allege the procedures are still flawed and expose them to cruel and unusual punishment.

As of 2013, there are 741 offenders (20 of which are women) on California’s death row.[6][7] Of those, 126 involved torture before murder, 173 killed children, and 44 murdered police officers.[8]

Because California’s death penalty was enacted through the voter-initiative process, the only way to replace it is through a voter-approved ballot measure. In 2012, Proposition 34, which would have replaced the death penalty with life imprisonment, was defeated with 52% of the vote against and 48% for.

History

San Quentin State Prison, the location of the death row for the execution of male inmates.

Central California Women’s Facility, the location of the death row for female inmates.

The first known death sentence in California was recorded in 1778. On April 6, 1778 four Kumeyaay chiefs from a Mission San Diego area ranchería, were convicted of conspiring to kill Christians and were sentenced to death by José Francisco Ortega, Commandant of the Presidio of San Diego; the four were to be shot on April 11.[3] However, there is some doubt as to whether or not the executions actually took place.[4]

Four methods have been used historically for executions. Until slightly before California was admitted into the Union, executions were carried out by firing squad. Upon admission, the state adopted hanging as the method of choice.

The penal code was modified on February 14, 1872, to state that hangings were to take place inside the confines of the county jail or other private places. The only people allowed to be present were the county sheriff, a physician, and the county District Attorney, who would in addition select at least 12 “reputable citizens”. No more than two “ministers of the gospel” and no more than five people selected by the condemned could also be present.

Executions were moved to the state level in 1889 when the law was updated so that hangings would occur in one of the State Prisons—San Quentin State Prison andFolsom State Prison. According to the California Department of Corrections, although the law did not require the trial judge to choose a specific prison, it was customary for recidivists to be sent to Folsom. Under these new laws, the first execution at San Quentin was Jose Gabriel on March 3, 1893, for murder. The first hanging at Folsom was Chin Hane, also for murder, on December 13, 1895. A total of 215 inmates were hanged at San Quentin and a total of 93 were hanged at Folsom.

In previous eras the California Institution for Women housed the death row for women.[9]

1972 suspension of capital punishment

On April 24, 1972, the Supreme Court of California ruled in People v. Anderson that the current death penalty laws were unconstitutional and oversaw the commuting of 107 death sentences in the state in 1972, which in turn affected high-profile cases such as Sirhan Sirhan and Charles Manson, relieving them from execution. Following the ruling, the California Constitution was immediately modified to reinstate capital punishment, under an initiative called Proposition 17. The statute was also updated to make the death penalty mandatory for a number of crimes including first degree murder in specific instances, kidnapping where a person dies, train wrecking where a person dies, treason against the state, and assault by a life prisoner if the victim dies within a year.

The debate over capital punishment was played out in a somewhat similar fashion on the national level. On June 29, 1972, the U.S. Supreme Court issued its decision inFurman v. Georgia, holding all capital punishment statutes then in effect in the United States to be unconstitutional. On July 2, 1976, the Supreme Court, in Gregg v. Georgia, reviewing capital punishment laws enacted in response to its Furman decision, found constitutional those statutes that allowed a jury to impose the death penalty after consideration of both aggravating and mitigating circumstances. On the same date, the Court held that statutes imposing a mandatory death penalty were unconstitutional.

In a later decision in 1976, the Supreme Court of California again held the state’s death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. A further 70 prisoners had their sentences commuted following this. The next year, the statute was updated to deal with these issues. Life imprisonment without possibility of parole was also added as a punishment for capital offenses. A later change to the statute was in 1978 after Proposition 7 passed. This gave an automatic appeal to the Supreme Court of California, which would directly affirm or reverse the sentence and conviction without going through an intermediate appeal to the California Courts of Appeal.

In 1983, The State Bar of California created The California Appellate Project as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution.[10] At around the time of its founding, Michael Millman became the director of CAP. Millman served as director of CAP for 30 years.[11] CAP oversees the efforts to assist private lawyers representing the more than 700 people on California’s death row.[11]

The Supreme Court proposed in 2007 that the state adopt a constitutional amendment allowing the assignment of capital appeals to the Courts of Appeal to alleviate the backlog of such cases.[12]

Introduction of lethal injection

The latest change of method was introduced in January 1993, when lethal injection was offered as a choice for people sentenced to death. David Mason however chose to die from lethal gas in August 1993, just seven months after lethal injection was introduced. This was replaced with lethal injection as the standard method in 1994. William Bonin was the first person to be executed by these new laws on February 23, 1996. Thirteen people have been executed in California since the death penalty was reinstated in 1977, though 56 other people have died on death row from other causes (14 of them from suicide) as of October 25, 2007.[13]

2006 Federal court ordered moratorium on executions and non-partisan studies

Fogel’s ruling halted executions in California for nearly 5 years.

In February 2006, U.S. District Court Judge Jeremy D. Fogel blocked the execution of convicted murderer Michael Morales because of complaints about the administration of lethal injection in the gas chamber.[14] It was argued that if the three-drug lethal injection procedure were administered incorrectly, it could lead to suffering for the condemned, potentially constituting cruel and unusual punishment. The issue arose from an injunction made by the U.S. 9th Circuit Court of Appeals which held that an execution could only be carried out by a medical technician legally authorized to administer intravenous medications. The case led to a de facto moratorium of capital punishment in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution.[15]

Several other victims’ families testified to the California Commission on the Fair Administration of Justice in opposition to capital punishment, explaining that whilst they had suffered great losses, they did not view retribution as morally acceptable, and that the high cost of capital punishment was preventing the solving of cold cases.[16]

But others who contest this argument says the greater cost of trials where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.[17]

The California Commission on the Fair Administration of Justice concluded after an extensive review that under the current death penalty system, death sentences are unlikely ever to be carried out (with extremely rare exceptions) because of a process “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court’s review of death judgments. According to CCFAJ’s report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state.

An exhaustive study released in 2011, found that since 1978 capital punishment has cost California about $4 billion. A 2011 article by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, and law professor Paula Mitchell, concluded that “since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions.”[18]

Moratorium continues

Old execution room
New execution room
The old execution room at San Quentin State Prison (top), though still functional as a gas chamber, has been supplanted by new facilities designed specifically for lethal injection(bottom).

In addition to the federal case challenging the lethal injection protocol, state proceedings have provided an additional basis for halting executions. In the state case, the issue is whether the execution process complies with the Administrative Procedures Act. In December 2011, Judge Faye D’Opal of Marin County Superior Court ruled that the state had failed to justify the decision to put in place a three-drug lethal injection method, which some experts had said carries a risk of “excruciating pain,” instead of a one-drug method, which one of the Department of Corrections and Rehabilitation’s own experts had recommended.

As of May 2012 under the current 1978 law:

  • 57 inmates have died from natural causes
  • 6 inmates have died from other causes
  • 20 inmates have committed suicide[19]
  • 13 have been executed in California
  • 1 inmate (Kelvin Shelby Malone) was executed in Missouri

July 2014 decision

On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California’s death penalty system is unconstitutional because it is arbitrary and plagued with delay. The state has not executed a prisoner since 2006. The judge stated that the current system violates the Eighth Amendment‘s ban on cruel and unusual punishment by imposing a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” The state of California is believed to be likely to appeal the decision to the Ninth Circuit Court.[2]

Current legislation

Method

Prisoners sentenced to death are allowed to select lethal injection or exposure to lethal gas.

Under the California Penal Code § 3604 (a):

The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.

Pursuant to subsection (b) of that Code section, if the prisoner does not make a decision on the method within 10 days after the warden’s service upon the inmate of an execution warrant, then lethal injection is automatically chosen.

In October 1994, a United States federal judge ruled that the gas chamber was an unconstitutionally cruel and unusual punishment in Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994), and this was upheld by the U.S. 9th Circuit Court of Appeals in February 1996, Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996). The Supreme Court of the United States never ruled on the case, however, as California amended its statute to include lethal injection as the default method while the case was still pending on appeal. The Supreme Court of the United States, however, did subsequently hold in Stewart v. LaGrand, 526 U.S. 115 (1999) that by selecting a specific method of execution an inmate waives his right to challenge that method’s constitutionality. This means that lethal gas still theoretically remains optional in California if an inmate should opt for it.

As in any other state, people who are under 18 at the time of commission of the capital crime[20] or mentally retarded[21] are constitutionally excluded from being executed.

Capital offenses

The penal code provides for possible capital punishment in:

Public opinion

The Field Research Corporation found in February 2004 that when asked how they personally felt about capital punishment, 68% supported it and 31% opposed it (6% offered no opinion). This was a decrease from 72% support two years previous, and an increase from 63% in 2000. This poll was asked about the time that Kevin Cooper had his execution stayed hours before his scheduled death after 20 years on Death Row. When asked if they thought the death penalty was generally fair and free of error in California, 58% agreed and 32% disagreed (11% offered no opinion). When the results were broken down along ethnicity, of the people who identified themselves as African American, 57% disagreed that the death penalty was fair and free of error.

A poll in March 2012 found that “61% of registered voters from the state of California say they would vote to keep the death penalty, should a death penalty initiative appear on the November 2012 ballot”[26]An August 2012 poll found that “support for Prop 34, which would repeal California’s death penalty, fell from 45.5% to 35.9%.”[27]

A PPIC poll from September 2012 showed that 55% of all adults and 50% of likely voters prefer life in prison without the possibility of parole over the death penalty when given the choice.[28]

A Field Poll in September 2014 showed that 56% support the death penalty, down from 69% three years ago. Support for the death penalty in California had not been at this low a level since the mid-1960s.[29]

Proposition 34, the SAFE California Act

A coalition of death penalty opponents including law enforcement officials, murder victims’ family members, and wrongly convicted people launched an initiative campaign for the “Savings, Accountability, and Full Enforcement for California Act,” or SAFE California, in the 2011-2012 election cycle.[30] The measure, which became Proposition 34, would replace the death penalty with life imprisonment without the possibility of parole, require people sentenced to life in prison without the possibility of parole to work in order to pay restitution to victims’ families, and allocate approximately $30 million per year for three years to police departments for the purpose of solving open murder and rape cases.[31] Supporters of the measure raised $6.5 million, dwarfing the $1 million raised by opponents of Proposition 34.[32]

The proposition was defeated with 52% against, 48% in favor.[33]

Comments by Chief Justices of the California Supreme Court

The current Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, a Republican appointee and former prosecutor, when questioned about the death penalty during an interview, stated: “I don’t think it is working…. It’s not effective. We know that.”[34] Her predecessor, former Chief Justice Ronald George, also a Republican appointee, characterized the system of death penalty appeals in California as “dysfunctional.”[35]

Executions after 1976

The following 13 people convicted of murder have been executed in California following the 1976 U.S. Supreme Court decision of Gregg v. Georgia. The first two executions were by gas chamber; all subsequent executions were by lethal injection.

Executed person Race Date of execution Victim(s) Governor
1 Robert Alton Harris White April 21, 1992 John Mayeski and Michael Baker Wilson
2 David Edwin Mason White August 24, 1993 Joan Picard, Arthur Jennings, Boyd Johnson, Antionette Brown, and Dorothy Land
3 William George Bonin White February 23, 1996 Marcus Grabs, Donald Hyden, David Murillo, Dennis Frank Fox, Charles Miranda, James McCabe, Ronald Gatlin, Harry Todd Turner, Russell Rugh, Glenn Barker, Steven Wood, Darin Lee Kendrick, Lawrence Sharp, and Steven Jay Wells
4 Keith Daniel Williams White May 31, 1996 Lourdes Meza, Miguel Vargas and Salvador Vargas
5 Thomas Martin Thompson White July 14, 1998 Ginger Fleischli
6 Jaturun Siripongs Asian February 9, 1999 Packovan Wattanporn and Quach Nguyen Davis
7 Manuel Pina Babbitt Black[36] May 4, 1999 Leah Schendel
8 Darrell Keith Rich White March 15, 2000 Annette Fay Edwards, Patricia Ann Moore, Linda Diane Slavik, and Annette Lynn Selix
9 Robert Lee Massie[37][38] White March 27, 2001 Boris G. Naumoff
10 Stephen Wayne Anderson White January 29, 2002 Elizabeth Lyman
11 Donald Jay Beardslee White January 19, 2005 Stacey Benjamin and Patty Geddling Schwarzenegger
12 Stanley Tookie Williams Black December 13, 2005 Albert Owens, Yen-Yi Yang, Tsai-Shai Lin, and Yee-Chen Lin
13 Clarence Ray Allen Native American January 17, 2006 Bryon Schletewitz, Josephine Rocha, and Douglas White

See also

References

  1. Jump up^ http://www.nationaljournal.com/domesticpolicy/federal-judge-rules-death-penalty-unconstitutional-in-california-20140716
  2. ^ Jump up to:a b Eckholm, Erik; Schwartz, John (July 16, 2014). “California Death Penalty System Unconstitutional, Federal Judge Rules”. New York Times. Retrieved 17 July 2014.
  3. ^ Jump up to:a b Ruscin, p. 196; Bancroft, vol. i., p. 316
  4. ^ Jump up to:a b Engelhardt 1920, pp. 96–97: Reference is made to three letters written by Father Serra to Father Lasuén dated April 22 and June 10, 1778 and September 28, 1779 wherein Father Serra expresses his satisfaction over Governor Felipe de Neve’s apparent grants of clemency in this regard. Based on these writings, Engelhardt concludes “It would seem that the sentence of death was commuted. At any rate, there are no particulars as to an execution.”
  5. Jump up^ Williams, Carol J. (July 2, 2011). “Judge who halted California executions gets post in Washington”. Los Angeles Times.
  6. Jump up^ California Death Penalty Moratorium Likely To Extend Into 2013 « CBS San Francisco
  7. Jump up^ The Buzz: Supporters of repealing California’s death penalty net $1.2 million in contributions – Sacramento Politics – California Politics | Sacramento Bee
  8. Jump up^ Ballot to abolish California’s death penalty opposed by RivCo officials
  9. Jump up^ Court Ruling Won’t Mean Bloodbath On Death Row.”Associated Press at the Tuscaloosa News. Tuesday February 15, 1972. p. 10. Retrieved on Google News (6/15) on March 27, 2013. “There are five women under a sentence of death. Three of Manson’s convicted accomplices, Susan Atkins, Leslie Houten, and Patricia Krenwinkel, are in a special women’s section of the row built at the California Institute for Women at Frontera.”
  10. Jump up^ “About CAPSF”. capsf.org. Retrieved 25 January 2015.
  11. ^ Jump up to:a b “Supreme Court Marks Passing of Michael Millman”.courts.ca.gov. California Supreme Court. Retrieved 7 February 2015.
  12. Jump up^ Weinstein, Henry (November 20, 2007). “Court urges amendment to speed death penalty reviews”. Los Angeles Times. Retrieved July 1, 2012.
  13. Jump up^ Condemned Inmates Who Have Died Since 1977
  14. Jump up^ Williams, Carol J. (September 22, 2010). “Clock is ticking on first execution at San Quentin’s revamped death chamber”. Los Angeles Times. Retrieved September 26, 2010.
  15. Jump up^ Death Penalty Moratorium in California
  16. Jump up^ Herron, Aundré M. (April 20, 2008). “Aundré M. Herron: The death penalty is not civilized” (PDF). Sacramento Bee. Retrieved March 31, 2010.
  17. Jump up^ STUDY: COST SAVINGS FROM REPEAL OF DEATH PENALTY MAY BE ELUSIVE
  18. Jump up^ “Alarcon law review” (PDF).
  19. Jump up^ California death row inmate found dead hanging in his cell, CNN, Darrell Calhoun and Michael Martinez, May 30, 2012
  20. Jump up^ Roper v. Simmons, 543 U.S. 551 (2005)
  21. Jump up^ Atkins v. Virginia, 536 U.S. 304 (2002)
  22. Jump up^ California Penal Code § 37
  23. Jump up^ California Penal Code § 128
  24. Jump up^ California Penal Code § 190 and 190.1
  25. Jump up^ California Penal Code § 219
  26. Jump up^ SurveyUSA News Poll #19044, http://www.surveyusa.com/client/PollReportEmail.aspx?g=c0076b43-5a67-415f-9b9f-6da015bf123a
  27. Jump up^ California Business Roundtable and Pepperdine University School of Public Policy,http://publicpolicy.pepperdine.edu/news-events/news/2012/08/02-cbrt-spp-release-statewide-initiative-survey-results.htm.
  28. Jump up^ http://www.ppic.org/content/pubs/survey/S_912MBS.pdf
  29. Jump up^ Chokshi, Niraj. “Support for the death penalty in California hits a five-decade low”. Washington Times. Retrieved 13 September 2014.
  30. Jump up^ http://www.safecalifornia.org/home
  31. Jump up^ http://www.safecalifornia.org/facts/about
  32. Jump up^ Elias, Paul. Calif. voters retain death penalty despite costs, November 7, 2012. Associated Press.
  33. Jump up^ “Smartvoter.org”.
  34. Jump up^ “L.A. Times interview”.
  35. Jump up^ “L.A. Times Interview”.
  36. Jump up^ Davis, Angela Y. (2013-09-18). The Meaning of Freedom: And Other Difficult Dialogues. City Lights Books. pp. 58–.ISBN 9780872865860. Retrieved 24 July 2014.
  37. Jump up^ “Massie Executed For 1979 S.F. Murder / Witnesses see procedure from beginning to end”. Sfgate.com. March 27, 2001. Retrieved September 12, 2010.
  38. Jump up^ “Massie on Death Row—On Again, Off Again”. Sfgate.com. March 14, 2001. Retrieved September 12, 2010.

External links

Second Degree Murder

2nd degree murder

The second degree murder rule attaches to felonies that are both inherently dangerous, and not specifically included under the first-degree felony-murder rule. “Inherently dangerous” felonies are those that cannot be committed without creating a substantial risk that someone will be killed. For example, setting a car on fire that is found in close proximity to people, is inherently dangerous to human life and triggers the second-degree felony-murder rule.

Overview of California Second Degree Murder Laws

A prosecutor may charge homicide, the unlawful killing of a human being, as murder or manslaughter. Murder requires proof of “malice aforethought,” which refers to the defendant’s intent or state of mind. In a murder case, California state laws require the prosecutor to prove that the defendant exhibited express or implied malice. Express malice means that the defendant deliberately chose to commit murder. Alternatively, the prosecutor may show implied malice in the defendant’s conduct that reflects an “abandoned and malignant heart.” Implied malice may arise if the defendant meant to create the circumstances that resulted in the killing of another person. When a criminal case lacks malice, the prosecutor will likely need to pursue manslaughter charges instead of murder charges.

Murder in California may be prosecuted in the first degree or second degree. First degree murder is the more serious of the two charges. The legal definition of first degree murder affects the definition of second degree murder — state law defines second degree murder as all murders that do not qualify as first degree murder.

California state laws list a number of special circumstances that qualify a homicide as first degree murder. The circumstances of first degree murder include a killing committed during the commission of one of the felonies specified by state law or the use of a designated means of killing such as a weapon of mass destruction or an explosive device. All homicides that do not meet the definition of first degree murder will be charged as second degree murder unless the prosecutor chooses to pursue a charge of manslaughter.

If the victim does not die within three years and one year after the date when the cause of death allegedly occurred, California state laws include a presumption that the homicide was not a criminal act of murder or manslaughter. The prosecutor must rebut the presumption in order to pursue a second degree murder charge.

First Degree Murder

first-degree-murder

The unlawful killing of another human being- homicide- may either be charged as murder or manslaughter. Murder requires “malice aforethought,” which means the defendant had expressed or implied malice and that there was a deliberate intent to commit murder. Under California law, there are three ways in which a person may be convicted of first-degree murder: by committing murder, killing in a way that is willful, deliberate, and premeditated, OR by way of the felony-murder rule. The felony-murder rule is defined as committing a specifically enumerated felony that automatically turns any logically related death into first-degree murder.

Overview of California First Degree Murder Laws

The unlawful killing of a human being — homicide — may be charged as murder or manslaughter. Murder requires a showing of “malice aforethought,” which refers to the defendant’s intent or state of mind. To prove a murder, the prosecutor must show that the defendant had express or implied malice. Express malice means that the defendant deliberately intended to commit murder. Alternatively, a prosecutor may show implied malice in the defendant’s conduct that reflects an “abandoned and malignant heart.” Implied malice may arise if the defendant acted without care for another person’s safety or behaved with extreme recklessness.

California recognizes two types of murder: first degree murder and second degree murder. First degree murder is reserved for especially heinous crimes involving premeditation, deliberation or deliberate planning, and intent to kill. State laws list the special circumstances that a prosecutor must use to charge a defendant with first degree murder. If none of the special circumstances apply, the prosecutor may pursue a charge of second degree murder.

Under California’s first degree murder law, the prosecutor must show a premeditated, deliberate killing involving one of the special circumstances listed by the state laws of California. The means of killing that qualify a homicide as first degree murder include weapons of mass destruction, bombs or explosive devices, armor-piercing ammunition, poison, and firearms shot from a motor vehicle. State law also requires a charge of first degree murder when the killing occurred after the defendant’s lying in wait or torture of the victim. First degree murder also includes killings committed while carrying out or attempting another felony such as burglary, robbery, rape, kidnapping, and other specified crimes.

If the victim for survives three years and one year after the date when the cause of death allegedly occurred, California state laws include a presumption that the killing was not a criminal act of murder or manslaughter. The prosecutor must rebut the presumption in order to pursue a first degree murder charge.

Defenses to First Degree Murder Charges

See First Degree Murder Defenses for more details.

Penalties and Sentences

In California, a conviction for first degree murder can result in one of three sentences:

  • Imprisonment in state prison for a term of 25 years to life;
  • Life imprisonment in state prison without the possibility of parole; or
  • Death.

State laws require a sentence of life imprisonment without parole or death for homicides involving special circumstances set by the California Penal Code. For example, the court must consider whether the defendant committed first degree murder while engaging in a felony or avoiding a lawful arrest, using a bomb or explosive device, or intending to kill another person for financial gain. The court must also confer a sentence of life imprisonment without parole or death if the defendant committed first degree murder of a peace officer, federal law enforcement officer, firefighter, prosecutor, or judge. State laws also allow for the most stringent forms of punishment when the murder was “especially heinous, atrocious, or cruel, manifesting exceptional depravity.” source

Manslaughter

manslaughter

Voluntary Manslaughter:

When you kill another person during a sudden quarrel or in the heat of passion, you may be charged under Penal Code 192(a), California’s voluntary manslaughter law. The difference between voluntary manslaughter and first-degree murder is the absence of malice, since the killing is done spontaneously in a voluntary case. If convicted, you may face 3 to 11 years in the California State Prison.

Overview of California Voluntary Manslaughter Laws

Homicide, the unlawful killing of a human being, may result in a criminal charge of murder or manslaughter. In a murder case, the prosecutor must establish the defendant’s “malice aforethought,” which refers to the defendant’s intentions, decisions, and planning related to the homicide. Malice may be shown through deliberate planning or participation in reckless, dangerous activity. When an individual commits a homicide without malice, the state might charge the defendant with manslaughter instead of murder. The difference between murder and voluntary manslaughter often focuses on the defendant’s state of mind at the time of homicide.

California state laws define three types of manslaughter: voluntary, involuntary, and vehicular. For a voluntary manslaughter charge, the prosecutor must show that the defendant committed homicide during a sudden quarrel or while in the heat of passion. The events and circumstances surrounding the homicide — the quarrel or provocation –establish a lack of malice that would otherwise result in a murder charge. The prosecutor must still show that the defendant had the intent to inflict severe bodily injury or death on the victim in order to prove voluntary manslaughter.

Acts that qualify as provocation depend on the circumstances surrounding the homicide. Some common acts of provocation include mutual combat in which both the defendant and victim equally participated, murder of a family member, or adultery committed by the defendant’s spouse.

If a period of time has passed between the act of provocation and the homicide, California laws provide the prosecutor with the basis for a murder charge rather than a manslaughter charge. State laws require a murder charge if the defendant had a sufficient “cooling period.” If the defendant committed the homicide after the cooling period, the prosecutor may be able to show that the defendant had enough time to premeditate or plan the killing.

Involuntary Manslaughter:

You can be charged under Penal Code 192(b) PC California’s involuntary manslaughter law when you kill another person without malice or intent to kill, but with conscious disregard for human life. If convicted under PC 192(b), you may face two to four years in the California State Prison.

Overview of California Involuntary Manslaughter Laws

Homicide, the unlawful killing of a human being, may result in a criminal charge of murder or manslaughter. California state laws include separate definitions for voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter. Involuntary manslaughter most commonly refers to unintentional homicides that occur during the commission of non-felony crimes or reckless conduct during lawful activities. In California, vehicular homicide and involuntary manslaughter are separate crimes with distinct definitions and punishments.

Homicide during the commission of a felony often results in a murder charge rather than a manslaughter charge. When a killing occurred during the commission of a crime that is not a felony, the prosecutor must prove that the defendant had a criminal intent to commit the underlying unlawful act. If the defendant did not intend to engage in the crime that resulted in homicide, the state may be unable to prove involuntary manslaughter. The defendant may be able to establish a lack of intent by showing a reasonable mistake or lack of knowledge.

An involuntary manslaughter can also happen during lawful activities that occur recklessly, carelessly, or unreasonably. A prosecutor might prosecute a defendant for a homicide that occurred due to the defendant’s careless behavior related to what would otherwise be a lawful activity.