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AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Assault On a Public Official Attorney

The California Penal Code, under the section 217.1 establishes a specific assault committed on a public official.1 The difference between the simple assault and an assault on a public official is the type of punishment, for a regular assault, the statute treats as a misdemeanor, however, if the victim is a government official, the conviction of this crime is going to be under the felony penalties. The punishment for a felony is more serious than a misdemeanor in California.

To constitute an assault on a public official the following elements must be satisfied: (1) the defendant committed an assault; (2) the victim of the crime was a "public official"or a member of a public official's family; (3) the intention of the crime was to retaliation for, or to prevent performance of, the public official's duties.2

Assault

Under California Penal Code 240, an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. 3Assault requires unlawful attempt to use physical force with present ability to do so. Furthermore, the person committing an assault must have a prior intent to commit a violent injury of another person.

However, an assault does not require a specific intent to cause injury or actual awareness of the risk that injury might occur to another person.4

In order for a defendant to be charged as an assault, the following elements must be satisfied:

  1. A person willfully and unlawfully committed an act, which by its nature would result in the application of physical force on another person;
  2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable results of this act that physical force would be applied to another person; and
  3. At the time of the crime, the person committing the crime has present ability to use physical force to the other person.

Let's explain in details those elements of assault for better comprehension. These conditions are essential for someone being convicted of assault, if the prosecution does not prove these elements, a person should not be convicted of assault. San Diego Criminal Attorney will work to prove the innocence of its clients.

The use of physical force.

As explained above, one of the evidence necessary to determinate an assault is whether the defendant wilfully or purposefully attempted a wrongful act committed by means of physical force against the person of another.5
The physical force of another person means by physical contact in an offensive or harmful touch. However, it is important to determine, a present ability to cause a physical contact is crucial to establish an assault. Even a superficial touching could be.

Enough to qualify as an assault, so long the victim consider the contact an offensive touching. Also, the contact could be made in an indirect form, the offensive touching of another person can be applied with the extension of the person, meaning that, anything connected to the victim's person is part of the person, for instance, the victim clothing, purse or any object that represent an extension of another person.

There is no need to succeeded in applying force to another person, what is required is that the defendant took action that could result in a force being applied.

Willful Action

The second element that prosecution needs to prove to initiate the assault charge is the willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is no intent to hurt someone, gain advantage or break the law.6

The evidence necessary to proof an assault is that the person, the defendant, willfully committed a conduct that by its nature will probably and directly result in injury to another person. The prosecution, in a assault case, does not need to prove a specific intent to inflict a specific harm. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences.

Since assault is a general intent crime, it requires an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another.7
Additionally, the term of act wilfully is when the defendant does the touching willingly or purposely, however it does not mean that the individual intent to act an unlawful conduct or hurt someone else.

Awareness

The Supreme Court of California established that the crime of assault does not require a subjective awareness of the risk that an injury might occur. However, for a person being charged as an assault, he/she must be aware of the facts that would lead a reasonable person to realize that an assault would directly, naturally and probably result from his conduct, and may not be convicted based on facts he did not know but should have known. Moreover, a defendant could just be convicted with assault if the facts that he/she actually know is sufficient to understand that the act will probably result in physical force applied to another.8     

In other words, "It bears re-emphasizing that you don't need to have actually intended to use force against the “victim” for California assault laws to apply. You only need to have been aware that, under the circumstances, there was a good chance your actions would lead to force being applied."9

Present ability

Under the California Penal Code § 6, an assault may be committed only if there is a present ability to commit the assault, the present ability requirement must be satisfied to charge a person of assault. Further, apparent ability conduct is not sufficient to satisfy an assault. For instance, the present ability is met when during the commission of an assault, the defendant points a gun to the victim without threat, however, if the gun is unloaded, there is no assault, because the present ability is not met, even if apparent ability could be shown, California does not recognize the apparent ability for crimes as assault.10

Public official

People v. Williams (2001) 26 Cal.4th 779, 790.
CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.”)
United States v Garcia (1977, CA9 Cal) 555 F2d 68.

To constitute an assault on a public official, the victim must have a special relationship with the government, as an employee or representing the government. However, the statute also protects the family of the public official, for this crime the family is treated as if they were a public official. The “Immediate family” means spouse, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father, or stepfather."11

Further, the California Penal Code defines who are the public officials protected under the statute, on 217.1(a) PC. "The designed officers are:

  1. The President or Vice President of the United States;
  2. The Governor of any U.S. state or territory;
  3. A federal, state or local justice, present or former judge or juror;
  4. A commissioner, referee or other subordinate judicial officer;
  5. The secretary or director of any executive agency (federal or state);
  6. A federal or state elected official;
  7. A mayor, city council member, county supervisor, sheriff, peace officer or municipal chief of police;
  8. A current or former prosecutor; or
  9. A current or former public defender."12

Example: Jessica, the governor of a state approved a law that is substantial controversial.  Joseph is a residence of the state and is mad with the governor because the statute. Joseph approaches Jessica at a public meeting with a bottle of pepper spray and tried to spray at his face, but fortunately he missed it.  Joseph could face a conviction of assault on a public official for attempt to injure Jessica.

Intention of the crime.

Under the Penal Code, this specific assault is just applied when the intention on the defendant's conduct is to retaliate for, or to prevent the performance of the official duties. So, the conduct of the defendant must be during the official duties or to prevent the public official to act on his/her duty. If the defendant committed an assault but the intention and the motive of the crime has nothing relate with the official duties, the defendant should not be convicted as an assault on public official, however, the defendant could be charged under California simple assault, depending on the case.

Example: Onenight, in a nightclub, Felipe got into a fight with Brandon. Felipe grabbed a bottle of wine and tried to throw at Brandon, but since Felipe was drunk, he missed it.  It turns out that Brandon is a cop trying to have fun at a nightclub.  In this case, Felipe could not be charged of assault on a public official, since Felipe did not know that Brandon was a police officer and also Brandon was not on duty.

Penalties

The offense of assault on public official can be charged as either misdemeanor or a felony, depending on the facts of each case. That is called wobbler in California, the prosecution has a option to charge the defendant with both crimes.

The California Penal Code defines that "an assault on specified governmental officers, in retaliation for or to prevent the performance of victim's official duties, must be punished by imprisonment in a county jail for not more than 1 year or by imprisonment. " 13Thus, misdemeanor assault on a public official is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in county jail not exceeding one (1) year, or both the fine and imprisonment.

However, if someone was charged as a felony, the penalties could be aggravate depending on the facts of the case, a felony assault on a public official is punishable by a fine not exceeding 10 thousand dollars ($10,000) or by imprisonment in county jail not from sixteen (16) months to three (3) years, or  both the fine and imprisonment.

However, if someone was charged as a felony, the penalties could be aggravate depending on the facts of the case, a felony assault on a public official is punishable by a fine not exceeding 10 thousand dollars ($10,000) or by imprisonment in county jail not from sixteen (16) months to three (3) years, or both the fine and imprisonment.

Legal Defense

An assault on a public official as mentioned already is a wobbler in California, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there a felony or misdemeanor registered, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with assault on public official, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.
To contest the charges of assault, San Diego Criminal Attorney would be able to use the following legal defenses:

  • No present ability to inflict an injury.

Under California Law, for a person be convicted as assault on public official, the person must be fulfill all the requirements of simple assault, by that, the most important element is that the defendant must had had a present ability to commit the crime, for instance. Sometimes the person that is being charged of assault on a public official, did not have the ability to inflict a violent injury against the government officers.

Example:
If Joe points a gun to a police officer during a commission of his public duties and the gun is unloaded, there is no assault, because the present ability is not satisfied. California does not recognize the apparent ability.

  • No intention to retaliate or prevent performance of public duties.

As explained above, a person only is guilty under California Penal Code § 217.1 (a) if the motive of the conduct is to retaliate for or prevent the officers performances. If you commit a conduct on a public official with no motive and no intention to prevent the public duty, San Diego Criminal Attorney can build a legal defense that could avoid your conviction. However, you still can be charged with other type of crimes.

  • Self-defense or third parties defense.

The self-defense theory could be applied in assault charges if the client reasonably believe that there was an imminent danger of suffering body injury or being touched unlawfully, there is a reasonable believe that an immediate use of force was necessary to avoid the dangers, and the uses of force was reasonable necessary to defend against the danger. 14The attorneys could use self-defense doctrine to avoid the conviction.

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