Legal Question in Criminal Law in California

Self Defense or Assault

My wife & I were seperated for a period of time and during this time she had taken all the tv's computers and any other form of entertainment from the house. In an atempt to get some of the things back I went to where she was staying and took her truck (comunity property). Well this jerk who thought he was going to play hero ran out of his house and jumped into the back of the truck and when I told him to get out he would'nt so I drove off with him in the back and went to my house and parked in the garage. I got out and atempted to go into my house to call police when he attacked me in an atempt to take the keys and reclaim the truck. We fought in the garage and into the grive way and he at one point had a small garden hoe and tried to hit me with it but I took it away from him and hit him with it,cut his head open and I was arested for assualt/w a deadly weapon. I was defending my property on my property and I'm arrested. Should this not be self defense? He brought this missfortune to himself. I made every attempt to retreat and end the situation. He would not quit and just kept coming at me like a mad man. Can this charge stick? The plea is to drop to misdameanor simple assualt 242 or go to trial on felony assualt with a strike.


Asked on 7/09/04, 4:11 am

1 Answer from Attorneys
Elena Condes LAW OFFFICE OF ELENA CONDES

Re: Self Defense or Assault

Hi. There are many considerations to take into account in deciding whether or not to accept the offer by the District Attorney. Consider the cost of going to trial if you have a private attorney as well as the risk of going to trial and losing. If you went to trial and lost, you would have the consequences of having a felony strike conviction. Some of those being, the potential of going to prison, not being able to vote or own a firearm, if you job requires that you be licensed or bonded you may not be able to retain your employment.

Secondly, you want to consider the risks of taking the plea bargain. A misdemeanor conviction of a 242 means you cannot own a firearm for 10 years. You may have a stay away order from a particular area, but if you violate your probation, the most amount of time the court can send you to jail (not prison) is one year. Unlike a felony where a probation violation can send you to prison (not jail) for several years.

There is always a risk when going to trial because the ultimate decision is by 12 people you have never met before. But, for some people the risk is worth it to clear their name.

Whether or not the charges stick is up to the jury. Make sure you weigh all the risks and benefits and decide what decision is right for you.

Good luck,

Elena Condes

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Answered on 7/09/04, 3:45 pm


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