Long Beach, Use of Tear Gas, Battery, Judicial Diversion

Our client, age 32, worked as a private security guard for various shopping malls and stores.  He had worked in this capacity for over two years.  He was a DACA candidate, so any conviction was problematic not just for immigration consequences, but also for his DACA eligibility.

One day, he was called to a Starbucks near the intersection of Ximeno Avenue and Los Coyotes in east Long Beach.  He was asked to assist a homeless person in removing his personal items from inside the store.  The homeless man had significant mental health issues and was well known by our client, as he would often threaten security officers and police officers.  He also had significant body odor.

When our client reported to the location, the homeless man immediately became confrontational and warned our client, “I better not see you later!”  Our client regarded this statement as a threat that he may commit violence on our client if he saw him outside his work capacity.

The homeless person persisted in antagonizing our client, making abrasive comments and moving as slowly as possible, it seemed to our client.

At some point, our client sprayed the homeless man with his employer-issued pepper spray.

Two witnesses to the spraying, as well as the homeless man, told police that the homeless man was not acting in a dangerous way or violent way to our client, suggesting our client did not spray the homeless man in self-defense.  To the police, our client did so in a gratuitous way, perhaps in frustration over just having to tolerate the homeless man and his mental illness that created the situation.

The client was then arrested and released later the same day after posting $20,000 in bail.

About a week before the arraignment, the client called Greg Hill & Associates and spoke with Greg Hill.  The client explained that he was told that he was cited for unauthorized possession of tear gas, which the client regarded as improper because his employer issued him the tear gas.  Moreover, our client had successfully completed a class on the proper use of tear gas, so he was confused about how such a charge could be alleged.

Greg explained that the police and the Long Beach City Prosecutor’s Office may simply charge him with battery, Penal Code § 242, instead.  Greg explained that battery was “simpler” insofar as it only depended upon whether the client’s use of the tear gas was reasonable self-defense. 

Greg also explained how the case would most likely be resolved – with judicial diversion, which was fortunate for our client because he was a DACA candidate and he could not afford a plea of no contest or guilty, even if he was never convicted.  In judicial diversion, the proceedings would be diverted without the client being required to enter a plea (it is pre-plea diversion). 

Greg then explained what the terms of judicial diversion could be for this case.  Greg anticipated that the judge might order the client to attend anger management classes and perform some community service, perhaps 40 hours.

The client then hired Greg Hill & Associates and Greg went to the arraignment a few days later.  As Greg expected, the charge filed against our client was simple battery, Penal Code § 242.

The police report was also provided.  In it, our client said nothing about using pepper spray in self-defense.  In fact, the police officer asked our client several times if our client felt endangered by the homeless person or if the homeless person was acting violent toward him.  Our client told the police officer no to both questions.

The Long Beach City Prosecutor told Greg the plea bargain that his office was willing to agree to in order to resolve the case: a no contest plea to a violation of § 242, ten days in Los Angeles County Jail, 80 hours of community service, 52 anger management classes, a class on proper use of pepper spray and a class on proper security guard procedures. 

 

Acceptance of such a plea would mean our client would lose his DACA status and it could mean losing his job.  Moreover, our client was very averse to serving any time in jail.

Greg then asked the judge to suspend proceedings and place our client on judicial diversion.  The judge was opposed to this, commenting from the outset that he did not think judicial diversion was appropriate in cases involving violence.  Greg responded that no physical contact was involved and that our client had used the pepper spray on a homeless person who was later committed on a Welfare & Institutions Code § 5150 hold for mental health issues.

The judge then seemed to change his opinion of the case and asked the People what their offer was to resolve the case.

The judge then granted judicial diversion for six months with an obligation for our client to perform 56 hours (7 days) of community service and attend 18 anger management classes.  Our client also had to attend a security guard course with instruction on pepper spray use.

Our client was greatly relieved to hear the news that he would not be convicted, would have no jail and would preserve his DACA status.

For more information about battery, possession or use of tear gas and judicial diversion, please click on the following articles: