Law Offices of Kenneth T Holder
CRIMINAL LAW
Assault & Battery
Assault and battery are related but distinct crimes that involve the threat or use of physical force against another person.
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Do You Need a Lawyer?
It’s unfortunate, but too many attorneys treat their practice as a business and less like the profession our law office believes it should be. To make matters worse, there are many occasions where paying an attorney thousands of dollars is unnecessary, but because of the sales and fear tactics employed by an attorney consultation; many clients retain an attorney needlessly and become locked into a non-refundable retainer where very little representation (if any) by the attorney is rendered. Our office is committed to not engage in this type of practice. When we offer you a free consultation, you are guaranteed to become a well-informed client, confident that you are making the right decision as to whether you need to hire an attorney and making sure that you are hiring the right attorney who will give you the type of representation you were told you would receive.
You have a constitutionally guaranteed right not to incriminate yourself.
Make sure that you do not!
In general, if you are facing a criminal charge or even an initial criminal investigation, the best legal advice you can get from a criminal defense attorney is to exercise your 5th Amendment right not to provide any information that may incriminate you. Under no circumstance should you speak to an investigating law enforcement officer regardless whether you feel it is in your best interests. There are countless stories of well-intentioned defendants who thought being cooperative and explaining a situation ended up with criminal charges being filed against them. REMEMBER: In most cases, the primary motivation behind a law enforcement investigation is not to exonerate someone, but to find someone who can be arrested and prosecuted. All too frequently, their investigations result in reports that misquote, misrepresent, and give little, if any, credibility to what you have to say once they feel that there is a chance of making an arrest.
If you provide any information to a peace officer other than your contact information and the name and phone number of your attorney, you are probably making a huge mistake that will make the consequences very difficult to overcome later. Therefore, once you believe there is even the most remote possibility that you are being investigated for a crime, your first step should be to contact an attorney who can guide you through a very harsh and biased legal system. Our office can perform this duty for you by offering a free consultation to discuss your situation and help you make a smarter decision in your best interests.
Analyzing and understanding your case.
Although it may take some time and patience on your part, you can review the Penal Code yourself on-line and learn the requirements that must be met in order to prosecute and the penalties that could result if a prosecution against you is successful.
NOTE: Need to insert a link to the Penal Code at www.leginfo.ca.gov
Once you have studied the elements of your case, you still should follow through with an attorney consultation. The reason is that despite the penalties and punishments you discover in your research, there are many alternatives, which the California Penal Code does not discuss and that you may not be aware of. Even more important, one of our attorneys can make the legal language in the Penal Code easier for you to understand. Our office is committed to constantly explore all of the alternatives and options for our clients. If you have a case that is likely to turn against you, then it is our commitment to ensure that you do not suffer needless penalties or time in custody by what has increasingly become an uncaring and overreaching judicial process that often overlooks factors that can minimize a punishment against you. Not all cases go to trial and most probably should not. With you as an active participant in your own defense, we can ensure that your facts are reviewed in detail, brought to light in the courtroom, and given proper weight in our pretrial conversations with the prosecutors
Selecting your Attorney.
Your objective in hiring an attorney to get the best possible outcome for your legal matter. It is a well-known adage that “you get what you pay for”. In other words, if you have a “free” attorney representing you, then be prepared to get a result that is indicative of very little, if any, effort on your behalf. Similarly, if you hire a tax attorney or a worker’s compensation attorney to represent you in your criminal case, be prepared to get a result from an attorney who has no experience in dealing with the criminal courts system. If it helps to clear up the dilemma, you can imagine the outcome of a foot specialist doctor performing open-heart surgery on a patient. The outcome is highly unlikely to end very well for the patient. When you are discussing your case over the phone with an attorney, look for the following warning signs:
The initial phone call:
- Is the attorney going through the facts of your case so that he clearly understands them; or is he simply glossing over the facts, trying to end the call quickly, and pressing you to come into the office? This is indicative of an attorney who is focused more on treating his practice as a “business” and less likely as a “profession”.
- Is the attorney willing to discuss fees with you frankly; or is he vague as to how much your case is going to cost you? Since criminal cases are typically based upon a flat-fee structure, an experienced criminal attorney should be able to provide you a fairly close idea of the legal costs you are likely to incur.
Getting the “biggest bang for your buck”.
- The experience level of your attorney can often be a “double-edged sword”. On one hand, an experienced attorney has a lengthy association with the law and is probably familiar with the court personnel, the courts themselves, and often has a good grasp of the likely outcome, even before your first court date.
- However, this experience and familiarity with the likelihood of the outcome can limit an experienced attorney’s devotion to your case to where he may simply pursue the same outcome as he did with all similar clients that came before you. This can often prevent the attorney from looking into the details of your case that might make a result more favorable in our matter.
The fact is: Very quickly, even new criminal attorneys can be brought up to the familiarity levels required in criminal courts. One reason is because BY LAW, they are obligated to do so. Oftentimes, however, less experienced attorneys are not so jaded by the system and are willing to look beyond the closed box in which more experienced attorneys operate. This can be an important factor in deciding to hire the commitment level of a lesser inexperienced attorney who will go “all out” to avoid his client doing jail time vs. hiring a more experienced attorney who simply conducts business as usual.
About: Assault
In order to convict someone of an assault, the prosecuting attorney must prove:
- An accused person willfully and unlawfully committed an act, which would probably and directly result in a physical force/contact with a victim,
- The accused was aware or should have been aware that as a result of his/her actions, physical force/contact would occur to the victim,
- The accused had the means to apply the physical force/contact and utilized those means.
An assault does not require a physical contact with the victim or that an actual injury be committed. It requires only that the accused committed an act resulting in the possibility. This is the difference between the crime of assault and the separate offense of battery. It is an error when the two are referred to synonymously, although they generally tend to be charged at the same time. In many cases, an assault is charged as a misdemeanor, which can carry a term of up to 1 year in county jail. However, this can quickly change to a felony when a weapon is involved and when there is the potential of a life-threatening injury to the victim. A felony assault carries a term of up to 4 years and a problem arises when the prosecuting attorney attempts to use virtually any object (i.e. a pen, pencil, your car, or even a small tree branch) and claim that such an instrument is a “deadly weapon” for the purpose of filing a felony charge.
About: Battery
In order to convict someone of a battery, the prosecuting attorney must prove:
- An accused used force or violence upon the victim, and
- The use of the force was willful and unlawful.
Like the crime of assault, a battery can be charged as a misdemeanor, which can carry a term of up to 1 year in county jail and can quickly change to a felony when a weapon is involved and when there has been a significant injury to the victim. A felony assault carries a term of up to 3 years in prison. Here again, a problem can arise when the prosecuting attorney attempts to use the incident as a premise to charge the accused with attempted murder, which can result in a higher sentence (i.e. a life term) if the accused is convicted.