Gang Enhancement

A gang enhancement is not technically a separate crime but rather an extra charge that increases the penalties available for conviction of a number of underlying offenses. You might be charged with a gang enhancement if the prosecution thinks that you committed a crime for the benefit of a gang. Specifically, a gang enhancement adds an extra layer of punishment on top of the punishment you might face for the underlying crime.

In other words, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found beyond a reasonable doubt that the defendant has committed criminal acts for the benefit of his gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a gang, a gang enhancement requires that a felony charge, other than a gang charge, be lodged against the defendant.

A successful conviction under the gang enhancement statutes could add anywhere from 5 to 25 years to your sentence. But being charged with a gang enhancement is not the same as being convicted.

There are defense strategies available like:

Challenge the underlying felony

If there is no underlying felony, there can be no gang enhancement. Specific defenses apply to different sets of crimes, and it always dependent on your particular case. Common defenses used include, but are not limited to: self defense, defense of others, and coercion.

Prove that you are not an “active participant” in a gang

Gang enhancements cannot be added to a sentence unless the defendant's active participation in a criminal street gang is proven beyond a reasonable doubt.

Prove that you were not acting “for the benefit” of a gang

Similarly, a defendant cannot be given a gang enhancement if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal reasons. One example of a case that I worked on was an attempted murder case, in which the defendant shot his brother-in-law for hitting his sister. The prosecution tried to prove that he committed the criminal act for the purposes of benefiting the gang.

If you are facing criminal charges you should seek legal help immediately.

Assault & Battery

Assault

Though often used interchangeably, assault and battery are two different crimes with different possible punishments. Roughly speaking, an assault is an attempt to hit someone while a battery is a successful attempt to hit someone.

Under California Penal Code §240, an assault is an intentional attempt to apply of force another person coupled with the present ability to carry out that intent. The prosecution must prove all of the following elements to convict a defendant of assault.

• Willfully 
• Taking an action likely to cause an application of force to another person
• With the present ability to cause an application of such force 

Battery

A battery is defined in CPC §243 and includes all the elements of an assault coupled with an injury. Specifically a battery conviction requires the prosecution to prove that the defendant:

• Willfully 
• Used force or violence 
• Upon another person 

Both charges have several possible defenses depending on the circumstances including self-defense and you should seek immediate legal assistance if you have been charged with an assault.

Murder

In general terms, murder means taking the life of another person. However, the specific crime with which a defendant can be charged varies significantly because under California law there are a number of degrees of murder ranging from attempted murder to first degree murder. California law actually has three broad categories of murder, each with multiple sub-categories.

• First Degree Murder
• Second-Degree Murder
• The Felony Murder Rule

First-Degree Murder

Murder in the first degree involves the premeditated killing of another person. Under certain circumstances, the prosecution may seek the death penalty for a first-degree murder. You can be convicted of first-degree murder if:

You committed a murder:
using a destructive weapon or explosive, a weapon of mass destruction, ammunition primarily designed to penetrate metal or armor, or poison; or
by lying in wait for someone or inflicting torture
by a killing that was willful, deliberate, and premeditated; or
if someone dies while you are committing certain felonies (described under the Felony Murder Rule).
<;br />A capital murder is one in which the prosecution may seek either the death penalty or life in prison without the possibility of parole and can be charged whenever there is a murder with special circumstances such as:

• a murder involving more than one victim
• murdering someone for financial gain
• murdering a police officer, firefighter, prosecutor, judge, juror, or elected official
• murdering a person because of their race, color, religion, nationality, or country of origin
• murdering someone while discharging a firearm from a motor vehicle
• murdering someone for the benefit of a gang
• murdering a witness to prevent them from testifying
• certain felony murder situation

Second-Degree Murder

Generally, a second-degree murder is a murder in which the killing was willful but not deliberate and premeditated. This could include actions such as shooting a gun into a crown or driving while under the influence and causing a death.

Felony Murder Rule

Under California law the felony murder rule can apply to both first and second degree murders. Essentially, the crime sets up liability for deaths which happen during the commission of a dangerous felony. The murder need not be intentional, even a negligent or unforeseeable death may qualify.

The first-degree felony murder rule only attaches to specific underlying felonies which are:

• Arson
• Robbery
• Burglary
• Carjacking
• Train Wrecking
• Kidnapping
• Mayhem
• Torture
• Sex Crimes such as rape, forced oral copulation, forced penetration, and lewd acts with a minor

The second-degree felony murder rule can attach to any underlying felony which is both inherently dangerous and not specifically listed under the first-degree rules (see above).

The general elements of any murder are:

1. Committing an act that results in the death of another person or a fetus
2. Committing that act with malice aforethought, and
3. That the killing was without lawful excuse or justification.

Getting Legal Advice

As you can see from the above material, a murder charge under California law can involve a lot of complex factors and the penalties differ substantially. If you have been charged with any type of murder you are strongly advised to seek legal counsel immediately to protect your rights.

Domestic Violence

Due to the stigma and severe penalties associated with domestic violence, it is not uncommon for individuals to falsely accuse another of domestic violence. The motivation could be as simple as revenge for cheating or an attempt to gain an advantage in a dissolution proceeding. It is important that you seek an attorney so that the whole truth may be disclosed. Far too often, the accused faces allegations that do not resemble reality. We will aggressively investigate the facts particular to your case and represent you passionately.

Corporal Injury on Spouse/ Cohabitant

California Penal Code § 273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Domestic Battery

California Penal Code § 243 (e) (1). When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

Corporal Injury on a Child

California Penal Code § 273d. Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.

The above cited statutes are all domestic violence crimes, in which the victims are specially classified due to their vulnerability. Domestic violence is a serious allegation and comes with harsh punishments for those accused and convicted. The prosecution also has substantial discretion in pursuing a domestic violence charge, even if the victim desires to drop it.

A slight injury that causes a bruise or swelling is sufficient to be charged under the corporal injury statute. Under the battery statute, there does not need to be a visible injury.