The following violent crimes involve legal issues when it comes to sentencing that can affect the current or future sentences of the charged defendant. For further detail on the sentencing implications, refer to the THREE STRIKES CASES page.
Penal Code section 451
Arson is the intentional causing the burning of property. Generally, to be charged with arson, one must burn the property of another. However, one can be charged with arson if they burn their own property with the intent to commit fraud. The penalties for the crime of arson are dependent on the circumstances of the act including where it occurred and what resulted. Various factors that may determine the degree of severity for arson include the following:
- Arson that causes “great bodily injury” is punishable by five, seven, or nine years in state prison.
- Arson that burns an inhabited structure or property is punishable by three, five, or eight years in state prison.
- Arson of any structure or forest land is punishable by two, four, or six years in state prison.
- Committing arson of any property including one’s own property with the intent of committing insurance fraud is a felony punishable by 16 months, two or three years in state prison.
- Attempted arson is punishable by 16 months, two or three years in state prison.
Any conviction for Arson requires lifetime registration as an arsonist pursuant to Penal Code section 457.1.
ASSAULT & BATTERY
Penal Code sections 240 & 242
Taking a swing at someone during a heated argument (but missing) is a simple Assault. Threatening to hit someone or to strike another with an object also is an Assault. The identity of the person is an important factor in determining the severity of the offense and the possible punishment.
Battery is a harmful or offensive touching. A Battery can involve slapping, punching, pushing, kicking or causing an object to contact another. Battery against many public workers and healthcare providers during the performance of their duties, including police officers, fire fighters, lifeguards, public transit workers, animal control officers, and probation department employees, carries more severe penalties than simple battery against other victims, if the person committing the offense knew or should have known that the victim was such a public worker engaged in performing his duties.
ASSAULT BY MEANS LIKELY TO PRODUCE GREAT BODILY INJURY
Penal Code section 245(a)(4)
An Assault by Means Likely to Produce Great Bodily Injury (GBI) occurs when an attacker threatens to hit someone or strikes someone in a manner that could lead to a great bodily injury. “Great Bodily Injury” means a significant or substantial physical injury. For example, if someone attacks another person and starts to kick that person in the head while they are on the ground could be an Assault by Means Likely to Produce Great Bodily Injury.
Assault by Means Likely to Produce Great Bodily Injury is a “wobbler” felony that is punishable as a misdemeanor or two, three, or four years in state prison.
ASSAULT WITH A DEADLY WEAPON
Penal Code sections 245(a)(1), 245(a)(2), 245(b)
An Assault with a Deadly Weapon occurs when an attacker accompanies a physical attack with a physical object capable of inflicting serious bodily injury or death, by virtue of its design or construction.
“Deadly weapon” generally refers to a wide range of objects that can inflict mortal or great bodily harm by design – for example, knives, firearms, or a car. Some objects, such as pocketknives, shoes, canes, walking sticks, golf clubs, and stones, while not deadly by design, can become “deadly weapons” depending on how the defendant has used them.
Even parts of the human body can be deadly weapons, such as feet, knees, arms, and teeth (people that are aware of their HIV+ status, who use their teeth to bite someone
else or have unprotected sex with another person, may be charged with ADW or aggravated sexual assault).
Assault with a Deadly Weapon is a “wobbler” but also a serious felony that is generally punishable as a misdemeanor or two, three, or four years in state prison.
Penal Code section 664/187
Attempted Murder is the failed or aborted attempt to murder another person. Just like other crimes, attempted murder consists of both an action and an intention. In Attempted Murder, a person must take a direct step towards the killing and must have the specific intent to kill that person.
In order to be convicted of attempted murder, the government must show that the accused took a “direct step” towards killing the targeted victim. A direct step requires that a person must go beyond merely preparing to commit the crime, and instead cross over into actually perpetrating it. Preparation is thinking about committing the crime, talking about it, or otherwise planning to do it; while perpetration is taking an action that puts the plan in motion and that would result in the intended killing.
You cannot accidentally commit attempted murder. To be convicted of attempted murder, the government must show that the accused specifically intended to commit the crime. For example, if you hit someone in the head with a lead pipe, that alone may be enough to show that you intended to kill the person. On the other hand, hitting someone in the legs is less lethal, and may not amount to attempted murder.
Attempted Murder is a violent felony that is punished depending on various factors:
- Attempted Murder with premeditation is punishable by Life in state prison with being eligible for parole after seven years.
- Attempted Murder of a Police Officer with premeditation is punishable by Life in state prison with being eligible for parole after fifteen years.
- Attempted Murder of a Police Officer without premeditation is punishable by Life in state prison with being eligible for parole after seven years.
- Attempted Murder without premeditation is punishable by five, seven, or nine years in state prison
Penal Code section 422
A Criminal Threat involves one person threatening someone else with physical harm. The threat must be communicated in some way, though it doesn’t necessarily have to be verbal. A person can make a threat through email, text message, or even through non-verbal body language such as gestures or movements.
You cannot commit a Criminal Threat if the threat is vague or unreasonable. The threat must be capable of making the people who hear it feel as if they might be hurt, and conclude that the threat is credible, real, and imminent. If, for example, you threaten to blow up the world unless your bartender doesn’t bring your drink to you in time, no reasonable person hearing it would believe the threat was real. On the other hand, if you walk into a store with a gun and threaten to shoot the clerk unless she gives you a refund, such a threat is credible and specific.
Criminal Threats is a “wobbler” but also a serious felony that is punishable as a misdemeanor or 16 months, two or three years in state prison.
KIDNAPPING & FALSE IMPRISONMENT
Penal Code sections 207(a) & 236
Kidnapping occurs when someone forcibly takes, holds or confines another person against his or her will and moves that person a substantial distance without their consent. “Substantial distance” means more than a slight or trivial movement. For example, moving a victim from one house to another house across the street or from a car into a nearby structure is enough, though movement from one room of a house to another may not be. The movement is a “substantial distance” if the movement:
- increases the risk of physical or psychological hard;
- increases the danger of a foreseeable escape attempt;
- increases the attacker’s opportunity to commit additional crimes; or
- decreases the likelihood of detection.
False Imprisonment occurs when someone intentionally limits or restricts someone else’s personal freedom against the victim’s consent. The imprisonment can occur whenever the victim is either physically restrained, but physical restraint is not always necessary. You can, for example, commit False Imprisonment if you threaten the victim with violence if he or she tries to leave. You can also commit False Imprisonment if you restrain someone else by using coercion or deception. False Imprisonment do not involve movement of the victim.
Kidnapping is a violent felony punishable by three, five, or eight years in state prison.
False Imprisonment by Violence is a felony punishable by 16 months, two, or three years in county prison.
False Imprisonment without Violent is a misdemeanor punishable by one in year in county jail.
Penal Code section 261
Rape is sexual intercourse that is forced on another without the person’s consent or against the person’s will. Heavy petting or other unwanted sexual touching that does not involve penetration usually does not constitute rape or criminal sexual penetration. It is still is a crime but considered less serious than one involving penetration. This lesser crime often is referred to as criminal sexual contact, molestation or sexual battery.
Lack of consent is the crucial component of sex crimes. Sexual conduct becomes criminal when sexual touch is not consented to, either because the offender forces another person to be sexual against his or her will, or because the other person is considered incapable of consent or to have a diminished mental capacity to give consent. For example, having sexual intercourse with a person who is drunk and passed out can constitute rape.
Rape is punished based on varying factors:
- Rape by force or fear, of a mentally or physically disabled person, of victim intoxicated by force or fraud, of an unconscious victim, of victim who believes the actor is their spouse, or by threat of retaliation or arrest is a violent felony punishable by three, six, or eight years in state prison.
- Rape of a victim between the age of 14 through 17 is a violent felony punishable by seven, nine, or eleven years in state prison.
- Rape of a victim under the age of 14 is a violent felony punishable by nine, eleven, or thirteen years in state prison.
Any conviction for Rape requires lifetime registration as a sex offender pursuant to Penal Code section 290.
SHOOTING AT AN INHABITED HOUSE OR OCCUPIED VEHICLE
Penal Code section 246
Shooting at an Inhabited House occurs when someone shoots a firearm at a building or vessel currently being used for residential purposes, whether occupied or not. An inhabited building or vehicle does not need to be a person’s primary or regular residence. Vacation homes, apartments, houseboats, and RVs are all considered “inhabited” buildings or vehicles.
Shooting at an Occupied Vehicle occurs when someone shoots a firearm at a vehicle while it is occupied by a person.
Shooting at an Inhabited House or Occupied Vehicle is a “wobbler” but also a serious felony that is punishable by three, five, or seven years in state prison.
Penal Code section 206
Torture occurs when someone inflicts Great Bodily Injury (GBI) on a person with the intent to cause cruel or extreme pain for the purpose of revenge, extortion, persuasion, or any sadistic purpose. An example of Torture are the “Saw” movies – causing extreme pain to someone because they hurt your child or because you want to learn the combination to their safe.
Torture is a felony that is punishable by Life in state prison with being eligible for parole after seven years.