Non LEO has question about charges

[sauldgold]

Hi all,

So here's a quick rundown. Last night there's a party on my block, and an argument breaks out between several idiots over who knows what.

Idiot number one pulls out a gun and shoots two people. Both survived and are now in the hospital. Idiot number one and his accomplice are quickly caught and are now in custody.

I assumed that counts as attempted murder, but one of the deputies in the neighborhood told me that it would probably just wind up as an assault with a deadly weapon.

This seems insane to me. Could anyone please explain this ?

[tgriffin]

Deputy is probably right. Common deal for prosecution to plead down to. A lot will depend on who the men are, the motivation for the shooting, prior criminal history, and how good the defense or public defender is.

[explosivewhale]

Lemme start by saying, we are in CA. Thats your first problem. ..im no lawyer, but private counsel or the public defender will argue that the elements for a/murder were not met. Attempt unlawful killing of a person of another WITH malice aforethought are the elements needed to be met. Public defender will push that it was heat of the moment argument which led to the shooting and will get shooter's charges plead down to a ADW

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[71MUSTY]

Probably depends on the race of the shooters. Old white guys will get the book thrown at them unless they are wealthy Democrat Doners.

[sauldgold]

Wow. I knew the system was ****ed in this state, but obviously, I had no clue just how bad it actually is. So many things suddenly make sense now.

[CBR_rider]

[sauldgold]

The more I've thought about this, the more it pisses me off. I've done some google homework, but I'm sure there's a big gap between the law as written and as practiced.

So one more question, two parts:

What is a realistic sentence, and how much of it would the guy even serve before being released if :

1. He has a relatively clean record ?

2. He has some priors less serious than this ?

Oh and fwiw I'm in LA, which I assume will effect the answer.

[RickD427]

Lemme start by saying, we are in CA. Thats your first problem. ..im no lawyer, but private counsel or the public defender will argue that the elements for a/murder were not met. Attempt unlawful killing of a person of another WITH malice aforethought are the elements needed to be met. Public defender will push that it was heat of the moment argument which led to the shooting and will get shooter's charges plead down to a ADW

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Actually, this is a pretty good analysis. To win an attempted murder conviction, the prosecution would have to prove the intent to kill.

But the "Assault with a Deadly Weapon" charge is also equally inappropriate. PC 245 (ADW) is often used as a "Catch All" by LEOs and Prosecutors. The key point being that ADW is a crime of "Assault." The Penal Code defines an "Assault" as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." By definition an "Assault" is an attempt. If a person was actually shot (and presumably injured) then there is more than an "Assault." There is a completed battery. Simple assault and simple battery are misdemeanors, but assaults where a deadly weapon is used (or force likely to produce great bodily injury) and batteries resulting in serious injury are felonies. If the victim suffered wounds typical to gunshots, and the elements of attempted murder could not be proved, then the appropriate charge would be Felony Battery (243(d) PC).

[oddjob]

1. He has a relatively clean record ?

Probation and/or work project

2. He has some priors less serious than this ?

Priors as in "Crimes against Persons"?....6 months tops....

[dno]

I read an article that told of a guy from CA with an extensive criminal record...he went back east, to South Carolina or Virginia, and committed a couple of armed robberies. He got caught and sentenced to 48 years. He was complaining that if he had stayed in CA and done those robberies he would have gotten 7 or 8 years, max.

[P5Ret]

I read an article that told of a guy from CA with an extensive criminal record...he went back east, to South Carolina or Virginia, and committed a couple of armed robberies. He got caught and sentenced to 48 years. He was complaining that if he had stayed in CA and done those robberies he would have gotten 7 or 8 years, max.

Hell you don't even have to go that far. There was a story of a prolific car burglar working SF, he had numerous arrests and conviction's, but always got probation or time served. Until he got popped doing a burg on the wrong side of the county line. Ended up doing 3 years state prison. He was shocked that San Mateo's DA took it much more seriously than SF's DA, and the judge wouldn't cut him a break on sentencing.

OP welcome to the criminal justice system. I used to work with a guy who got PO'd every time one of his arrests ended in a conviction with nothing more than a slap on the wrist. We would constantly tell him you did your part, everything else is beyond your control, and it isn't worth the ulcer's or blood pressure spike's worrying about what the DA or court did.

[BadKitty]

The more I've thought about this, the more it pisses me off. I've done some google homework, but I'm sure there's a big gap between the law as written and as practiced.

So one more question, two parts:

What is a realistic sentence, and how much of it would the guy even serve before being released if :

1. He has a relatively clean record ?

2. He has some priors less serious than this ?

Oh and fwiw I'm in LA, which I assume will effect the answer.

In the scenario you first presented, the suspect is said to be getting charged with Assault with a Deadly Weapon. I am going to assume that the weapon was a semiautomatic firearm.

PC 245(b) reads: "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."


As P5Ret pointed out, the county DA decides how tough on crime she or he wants to be and which charges to actually file (or take a plea deal or whatever). A probation officer will issue a report to describe the facts surrounding the crime, the victim statements, etc. The report will discuss the mitigating factors as well as the factors in aggravation which will help determine if the defendant should get the 3, 6 or 9 years (low, middle and high terms). Aggravating factors would be things like if the defendant has priors for other violent crimes, his crimes are increasing in sophistication, he was taking advantage of a vulnerable person, prior history on probation was poor, and things like that. Mitigating factors would be if the defendant has little to no prior criminal history, previous positive performance on probation, etc.

In your hypothetical, his history of having a clean record and/or less serious priors might result in the low term of 3 years. Let's just say, for the sake of argument, the defendant is found guilty and gets the middle term of 6 years in state prison. The defendant will get credit for time served at county jail (during his trial and before getting shipped to state prison). Let's say that takes 1-year off of the 6-year sentence. Out of the 5-years remaining, he will probably only serve 50-66% of that sentence, or 2.5 to 3.5 years or so.

[marksman1122]

In the scenario you first presented, the suspect is said to be getting charged with Assault with a Deadly Weapon. I am going to assume that the weapon was a semiautomatic firearm.

PC 245(b) reads: "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."


As P5Ret pointed out, the county DA decides how tough on crime she or he wants to be and which charges to actually file (or take a plea deal or whatever). A probation officer will issue a report to describe the facts surrounding the crime, the victim statements, etc. The report will discuss the mitigating factors as well as the factors in aggravation which will help determine if the defendant should get the 3, 6 or 9 years (low, middle and high terms). Aggravating factors would be things like if the defendant has priors for other violent crimes, his crimes are increasing in sophistication, he was taking advantage of a vulnerable person, prior history on probation was poor, and things like that. Mitigating factors would be if the defendant has little to no prior criminal history, previous positive performance on probation, etc.

In your hypothetical, his history of having a clean record and/or less serious priors might result in the low term of 3 years. Let's just say, for the sake of argument, the defendant is found guilty and gets the middle term of 6 years in state prison. The defendant will get credit for time served at county jail (during his trial and before getting shipped to state prison). Let's say that takes 1-year off of the 6-year sentence. Out of the 5-years remaining, he will probably only serve 50-66% of that sentence, or 2.5 to 3.5 years or so.

I came here to say almost exactly this. I'll add a little more since I used to be assigned as a bailiff and saw this pan out all the time. Forgive me, it's been a while and I may be a little rusty.

Sentencing is entirely up to the judge, but generally standard sentencing is the mid term, and depending on the crime they have to do at least 50% of the mid term. If the judge is super lenient, they could do 3 years, served concurrently, so the defendant would end up serving 1.5ish years (which includes credit for any time served before sentencing in county jail). This would likely be served now in "County Prison" which under AB109 allows for sentences under 3 years (I think) to be served out in county jail instead of state prison. Worst case the judge could give the defendant 9 years per county served consecutively, which would result in an 18 year sentence, half-time would bring it down to 9ish years. If you've got a super lenient DA, they could plead it down to a lesser crime and walk with time served and court probation. Welcome to the Justice System.

[starlight]

- I'm not a lawyer but I grew up in a household with one
- Everything is a charade
- Cops are given the power to overcharge, lawyers are given the power to reduce or expand those charges, and judges are given the power to reduce or increase sentencing

- everyone gets a turn
- the idea is that GENERALLY the law will be 'correct and fair' under most circumstances

- in your case ADW or battery will be the case unless it can be proven that there was malicous intent and premeditation, etc

- if it was just a 'heated fight' that got out of hand, then ADW is how the law is written


- everything is not 'murder'
- most of the public doesn't understand this..

- like mentioned above people don't even realize that assault doesn't involve any contact or physical harm

- this is why lawyers exist.. what most 'think is the law' differs from the ACTUAL LAW


- a great example of public ignorance of the law is when a cop shoots a criminal and there is public outcry to prosecute him. The DA will charge the cop with murder. Or attempted murder. ANYONE who knows law KNOWS that there is ZERO CHANCE of a conviction simply based on the legal impossibility (virtually) of a cop premeditating a killing in the course of his duty...

acquitted.

- the clueless public is temporarily satisfied... yelling 'they're charging him with murder!'

- they don't realize that's the DA's way of guaranteeing an acquittal ( ie 'overcharging' because the public doesn't understand the law)


- so again, this is why lawyers exist



- to put this into simple language: A suspect MUST be charged APPROPRIATLEY or a conviction won't happen
- IF your neighbor went to trial on 'attempted murder' he would be ACQUITTED! (because he only meets the standards for assault and battery)









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