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Long Beach 245(a)(1) Charge, Resolved for 417(a)(1)

Our client, age 52, lived in an apartment on 226th Street in an area known as the Harbor Gateway area (east of Western Avenue).  Our client was a gardener.  He was not a U.S. citizen and had never had even a work permit.  However, he had lived in the United States for over 30 years and raised six kids here, who were all U.S. citizens by virtue of being born here.  He was married, but separated.

One night, his friend, age 65, came by his apartment and told him, “Hey, there is a fight going on down the street.  Let’s go and watch.”  Our client agreed and the two walked down the street.  It was about 11:00 p.m.  Our client was still wearing his work clothes, including a long knife that he used in gardening.  The knife was in a sheath attached to his belt.  It was perhaps a foot long and very sharp.

The two then walked down the street and entered the apartment complex through a gate.  Our client was immediately told to leave and not involve himself in the fracas.  He then recognized a friend involved in the dispute and insisted upon helping her.  He therefore refused to leave and before he could help his friend, he was surrounded and punched several times.

In self-defense, our client (who weighed perhaps 130 pounds and stood just five feet, six inches tall) pulled out his gardening knife, brandishing it for those attacking him to see.  This tactic worked for a few seconds and the group backed off. 

However, as soon as they backed off, they then resumed their punching and someone tried to grab the knife away from him.  That person cut his hand.  A second person tried the same thing and also cut his hand.

Our client then pulled free of the group and left the apartment complex just as police arrived.  Bystanders pointed out our client as having used a long knife to cut several people.  Our client explained to the police that he only took out his knife to defend himself, but police did not believe him and quickly arrested him.

The client was then taken to the Harbor Station of the Los Angeles Police Department and then moved to the 77th Street station in South Los Angeles.  Bail was set at $30,000.

The client’s daughter called our office and explained to Greg the arrest of her dad, who she had visited at the 77th Street Precinct station and who had described to him what happened.

The client’s daughter explained that her dad was not a U.S. citizen and Greg explained that a conviction for the arrest reason (a violation of Penal Code § 245(a)(1)) would be regarded an presumptively deportable, as 245(a)(1) is an aggravated felony, not only because it is a crime of violence, but also because it is punishable by more than a year in state prison.

Greg then explained that he had handled similar cases for noncitizens and that based on the facts that the client’s daughter told Greg, it seemed like the case was more fittingly described as illegal brandishing a weapon, perhaps even defensible as self-defense. 

The client did not post bail and was arraigned on a single charge of violating Penal Code § 245(a)(1) (assault upon another person with a weapon or instrument other than a firearm), a strike under California’s Three Strikes Law. 
This took place before the client’s daughter could contact Greg.  She had been at the arraignment and explained that the public defender did not even talk to the family about her father’s case.  She felt that the public defender did not care at all.

The next appearance in the Long Beach Superior Court would be in just two days and Greg explained to the client’s daughter that he would request that bail be lowered to zero to allow the client’s release.

So, Greg e-mailed the two regularly appeared prosecutors in Department 1 of the Long Beach Courthouse as a courtesy notice that he would be requesting a bail hearing based on a change in circumstances (the client was moving in with his daughter in San Pedro, about ten miles away from the area where the fight took place).

Greg then appeared in the Long Beach Superior Court and reviewed the police report, which was surprisingly consistent with exactly what the client’s daughter had described.  In other words, this really was not a case about assault with a deadly weapon other than a firearm.  It was about a person, our client, brandishing a knife to keep others from beating him up.  Perhaps it was not even a crime.  If anything, our client’s real crime was trespassing in not leaving a place when told to do so.

However, in discussing this with the prosecutor, Greg agreed that the client would accept a plea bargain to a violation of Penal Code § 417(a)(1), brandishing a weapon, as a compromise between 245(a)(1) and trespassing (Penal Code § 602).  Brandishing a weapon was immigration-neutral if your client was found to brandish the weapon in an angry way (not a threatening way) and when the victim was not a family member. 

The minimum terms for such a violation was 30 days in county jail, which our client had already served by the third time Greg appeared (15 days actual, plus 15 days good time-work time).  The DA also required our client to attend 26 anger management classes and perform 15 days of community service during one year of informal probation.

The client was happy to be released from jail without posting bail and without a conviction that had immigration consequences to him.

For more information about assault with a deadly weapon and brandishing a firearm or weapon, please click on the following articles:
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