Santa Clara County’s Collateral Consequences Policy and Avoiding Dual Prosecution (CA Penal Code 242)

Last month’s issue of The National Review featured an article by Pete Hutchison, lambasting Santa Clara County District Attorney Jeffrey Rosen’s “Collateral Consequences” memo and practice[1]. Hutchison seems to attribute all of the woes of most victims to Rosen’s directive to his office to consider the collateral immigration consequences for cases prosecuted by his office involving non-citizen defendants. Hutchinson’s diatribe is misinformed, misdirected and startlingly off-target. Which shouldn’t surprise most readers who have any idea of the roots of The National Review or its general opinion on all issues political, social or judicial.

The National Review is a conservative, quasi-monthly magazine founded by William F. Buckley, Jr. in 1955. Unsurprisingly, the missive aims to present politically conservative ideals in a palatable manner to the general public. Lest we have forgotten, Buckley is also the political commentator and author who deemed the HIV/AIDS epidemic “the special curse of the homosexual” and argued that all AIDS patients be “tattooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.[2]” Needless to say, any opinions printed in or by The National Review should, at the very least, be taken for what they are: skewed vehicles aimed at promoting a widely unpopular viewpoint which has not matured or changed in any significant way since the magazine was founded more than six decades ago.

The article begins by painting a pretty picture of a loving wife, mother and professional who, by the unlucky alignment of the stars, managed to marry “a reprehensible bully and abuser” who subjected her to “the worst kind of mental and physical abuse.” The tone of the article then moves on to righteous indignation at District Attorney Rosen’s “dumbfounding” decision to charge the defendant in that case with what the author calls “offensive touching.” The article then glosses over the criminal court process as a whole, and goes on to lament the fact that the District Attorney assigned to the case seems to have followed his or her job description to the letter: to charge the case appropriately and prosecute it effectively. A decision which ultimately resulted in a conviction.

Clearly, Hutchison does not have an educational or professional background in law, as evidenced by his absence from the ranks of the licensed attorneys in the state of California (or any other state for that matter) as well as his cannon of written works (which are limited to a series of published travel guides.) What Hutchison does not seem to understand, is that “offensive touching” is included in the language of California Penal Code Section 242, and is not in and of itself the title of a criminal act. More specifically, CA PC § 242 is the codification of the crime of battery, and although the title could be misleading, even a cursory examination of the statute reveals that battery does not actually require injury to another person. In fact, even “the slightest touching can be enough to commit battery if it is done in a rude or angry way.” See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 960.  The defendant described in Hutchison’s article was charged with battery, which may very well have been the appropriate charge under the circumstances. Although Hutchison describes the defendant’s actions as “savagely” beating his wife, the only evidence he points to is an article in The Daily Beast, a “news and opinion” website of questionable motives with only a peripheral relationship to the truth. The link to the purported article included in Hutchison’s piece is no longer valid. In reality, there is no evidence presented in Hutchison’s article detailing the severity of the beating, or verifying that there was a beating at all. And without full access to the record of proceedings, Hutchison’s allegations against the defendant in this particular case are reckless and defamatory.

Hutchison goes on to state that “In practice, Rosen’s policy appears to be that possible deportation is worse than the domestic terrorism and savage beatings that women like Ms. Rastogi endure.” However, these statements are unfounded and inflammatory. Again, there is no evidence that Ms. Rastogi endured an act of “domestic terrorism” or a “savage beating.” In addition, Hutchison seems to be suggesting that the District Attorney’s policy is to weigh the rights of the victim against the rights of the defendant and then make a determination as to which is more important. The threat of possible deportation is, in and of itself, terrifying, demoralizing and damaging[3]. To the defendant him- or herself, as well as to his or her spouse, children, parents, co-workers and community.

Hutchison glosses over the effect the threat of deportation might have on a defendant and focuses solely on the rights of the victim, when in reality one might very well be worse than the other – just not the one that Hutchison is suggesting. Hutchison does manage to note that Ms. Rastogi did, at one point, ask the District Attorney’s office not to prosecute her husband. This may seem trivial or even ridiculous to many readers, but it is not an inconsequential act. In the case that Hutchison uses as the focal point for his article, the victim is described as “high-tech star working at the world’s premier technology company.” Clearly, she is not a shrinking violet and she is not an uneducated submissive. She is a professional woman with a burgeoning career. And, therefore, her decision to support her husband despite the marital problems they encountered should be respected and honored. Yes, Ms. Rastogi has rights as a victim of violence, and yes, she should be provided appropriate support and representation. But none of these rights are precluded by the District Attorney’s policy on collateral consequences.

Hutchison also calls District Attorney Rosen’s collateral consequences policy “probably unconstitutional,” but fails to provide any evidence whatsoever to bolster his opinion. As a means of educating Mr. Hutchison, as well as the National Review’s readership as a whole, constitutionality is one of the foundation blocks of our judicial system. There is no evidence (or supporting documentation cited in the article) to support this contention. In fact, declining to consider the collateral consequences – most especially immigration consequences – of a criminal prosecution actually is unconstitutional. Padilla v. Kentucky, 559 U.S. 356. And while Hutchison alleges that District Attorney Rosen’s policy stems from a “misreading” of the decision in Padilla, that is a misinterpretation of the facts as well. No, Padilla does not require criminal defense attorneys to “have knowledge of a highly specialized area of the law.” It merely requires criminal defense attorneys to advise their clients of a potential risk of deportation associated with the charges they are faced with or the plea agreements they are considering. District Attorney Rosen is simply taking this directive one step further, by taking some responsibility for appropriately, fairly and intelligently prosecuting the cases assigned to this office.

Finally, Hutchison throws the race card red herring into the mix by arguing that an African-American, Native American or United States citizen Hispanic defendant in District Attorney Rosen’s county is not afforded the same privileges as a non-citizen defendant. The most obvious error in this argument is that none of the other classes of defendants listed in the article would or could face the same collateral consequences as immigrant defendants, which renders the argument moot. But Hutchison invokes the often misquoted Equal Protection Clause as the basis for his allegation of unconstitutionality. He states that “Equal protection means that there is no justice if two people are charged with a crime and one gets a break because he or she is a non-citizen, while the citizen must face the charge’s full punishment.” Unfortunately and unsurprisingly, Hutchison misunderstands the Equal Protection Clause under the 14th Amendment to the Constitution. In reality, the Equal Protection Clause directs that no state shall deny to any person within its jurisdiction the equal protections of the law. Protection from deportation is one of the most important of these protections and therefore should be afforded at all costs to immigrant defendants.

Hutchison can twist the meaning of the law as much as he wants to. But he can’t change what the statutes or the Constitution actually say, and he can’t attribute false intentions or racial bias to a county policy about which he clearly understands very little.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended assault and battery charges in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.


[1] The National Review, “Dangerous Collateral Consequences in Santa Clara County, California,” May 17, 2017,

[2] The New York Times, “Crucial Steps in Combating the Aids Epidemic; Identify All the Carriers,” March 18, 1986.

[3] Center for American Progress (CAP), “How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities: A View from the Ground.”

California Laws 2016 – Custodial battery (Penal Code 243.15)

The California state legislature enacted 807 new laws during the 2015 legislative session

CA Penal Code 243.15 was added providing that:

“Every person confined in, sentenced to, or serving a sentence in, a city or county jail, industrial farm, or industrial road camp in this state, who commits a battery upon the person of any individual who is not himself or herself a person confined or sentenced therein, is guilty of a public offense and is subject to punishment by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail for not more than one year.”

Not that such a battery ever was a good idea, now the consequences of committing one are potentially even more severe.

Suspect in Oakland Sideshow Faces Felony Battery on Peace Officer (CA Penal Code 243(b) and 243(c))

In the summer months, Oakland usually experiences, not only a rise in the temperature, but also a rise in the number of illegal car rallies held on its streets.  These events, most commonly known as ‘sideshows,’ involve dozens of vehicles, participating in various car stunts.  One in particular, held last Saturday in the vicinity of MacArthur Boulevard and 100th Avenue, included vehicles spinning in circles, fireworks, and firearms.  An officer with the Oakland police was hit in the face by a bottle, which caused him to experience several severe facial lacerations requiring immediate surgery.  Although approximately 22 citations were handed out and 4 cars were towed, none of the spectators were able to identify the individual who threw the bottle at the policeman.

If the individual who threw the bottle is ever identified and apprehended, they will face quite serious consequences.  California law dictates that any person who purposefully harms a peace officer (or other protected person, like a firefighter or EMT) is guilty of a violation of CA Penal Code 243(b) and 243(c), “Battery on a Peace/Police Officer.”  In cases such as this, in order to get a conviction, prosecutors must prove that you a) intended to do harm to the alleged victim and b) that you knew that he or she was a police or peace officer involved in the course of their duties as such.  Penalties for violating CA PC 243(b) and 243(c) are severe.  Although this crime is usually treated as a misdemeanor, a conviction on such a charge could land you in county jail for 1 year and subject you to a $2,000 fine.  However, misdemeanor charges only apply if the alleged victim has not been seriously injured.  In the above case, the officer was hurt badly and required emergency treatment.  Thus, it will likely be treated as felony battery on a peace officer.  This means that the guilty party could face up to 3 years in county jail and a fine of $10,000.


Suspect to Face Battery Charges in Salinas (CA Penal Code 242)

The Little Caesar’s pizza joint at 506 East Laurel Drive in Salinas was lately the scene of a bit of a commotion.  Witnesses claim that a man and his mother were standing in line to order their pizza this past Sunday when a stranger made an offhand comment about the mother’s weight.  Specifically, he told the woman that she should not eat pizza because she was too overweight.  Flying into a rage, sources say that the woman ran out to her car in order to get a weapon, a crowbar.  However, upon her return, she found that her son had already attacked the stranger, punching him a number of times in the head.  No arrests were made in the incident, as the woman and her son remain anonymous.

If the son in the aforementioned case were to be identified, he would be arrested for battery charges.  California law defines ‘battery’ in a very specific manner, mainly ‘battery’ is the act of touching another person in a way that they find offensive (CA Penal Code 242).  So, even if the other person is not physically injured, you could be considered guilty of this violation of the law.  However, when physical injury does, in fact, occur, penalties become harsher.

Simple battery is considered a misdemeanor in California.  Punching someone several times after they have insulted your mother likely falls into this category, especially as the man was not seriously injured.  Normally, penalties for simple battery do not rise above a $2,000 fine and a maximum of 6 months in county jail.


Group Accused of Battery on Homeless Man in San Francisco (CA Penal Code 240, 242, 243(d))

A homeless San Francisco man (57) was fast asleep when his attackers began beating him with an aluminum baseball bat.  Normally, this kind of occurrence would fall under the section of the California Penal Code that deals with assault.  However, the victim claims that the man (a white male) who hurt him was yelling anti-Hispanic slurs.

Technically, the crime committed against this transient man was not ‘assault,’ it was ‘battery.’  California law makes a distinction between the 2 crimes:  assault is the attempt to harm someone purposefully and with the use of violence or force while battery consists of actually accomplishing that harm (CA Penal Code 240 & 242).  If serious injury is caused during a particular incident (CA Penal Code 243(d) – “Battery Causing Serious Injury”) then prosecutors must determine, according to the facts of the case, whether to treat the crime as a misdemeanor or as a felony.  If it considered a misdemeanor, then the maximum penalty is 1 year in county jail.  However, if it is considered a felony, then penalties can rise to up to 4 years in state prison.

More importantly, CA PC 422.5-422.75 add sentencing enhancements when discrimination has been a factor in the crime.  For example, if the crime was motivated by ‘hate’ (meaning that the crime was motivated by discriminatory attitudes toward persons with disabilities, of a particular nationality, sexual orientation, or ‘race’ or ethnicity), then penalties skyrocket.  Hate crimes are considered to ‘stand alone’ because of civil rights considerations (like the right to live one’s live without the threat of violence).  CA PC 422.7 adds 1 year and a $10,000 fine to crimes motivated by hate, and makes what would be a misdemeanor a felony in some cases.  If the crime committed is a felony (CA PC 422.75) provides for an extra year in state prison.  In other terms, hate crime sentencing enhancements are meant to provide relief for the victims of bias-motivated crimes against protected classes of persons.

San Jose Man Arrested for Threatening IRS Officials (18 U.S. Code 871)

Most everyone who has had to deal with the Internal Revenue Service, especially during tax season, knows that IRS agents can be overworked and, sometimes, may act a bit harassed.  Considering the number of people seeking information about their tax refunds every April, it may be natural that, every once in a while, one individual’s actions become confused.  Apparently, one such San Jose man was so eager to get his tax refund from the years 2007 and 2008 that he has been accused of threatening an IRS official over the phone on several occasions, over the course of which he allegedly used profanity.  Additionally, this same official claims that he used her voicemail service at lease 23 times within less than the span of an hour to leave threatening messages.  Lastly, he stands accused of causing trouble when he visited a San Jose IRS office in person.  In sum, the agency maintains that he tried to hit a guard with his head and spit on another security official.  He has been officially charged with threatening to kill representatives of the IRS because, after he was asked never to return, he warned that he would leave and then return with a gun.

On the face of it, this story seems to be yet another, perhaps understandable, tale of a disgruntled taxpayer fighting for his rights.  However, federal officials and agencies do not take threats lightly and this man may end up incarcerated for an extended period of time.  18 U.S. Code 871 makes it a serious crime to threaten anyone who could be considered a government official and this includes IRS agents across the nation.  In fact, the government classifies different violations of federal law using an offense class system that spans from “Class A” to “Class E” felonies (it is the same for misdemeanors).  Threatening a government official is listed as a “Class D” felony and the penalties are 5 to 10 years in federal prison and a $250,000 fine.


2 Homeless Men Beaten and Charged with Battery in Berkeley (CA Penal Code 242)

Many of us have already seen the alarming video surveillance footage (complete with audio) of 2 Berkeley ‘Ambassadors’ as they attack 2 homeless men behind a CVS on Shattuck Avenue and Bancroft Way.  Footage depicts the 2 members of the DBA (Downtown Berkeley Association) in their easily identifiable lime green shirts as they approach 2 younger homeless men behind the local drugstore.  One ‘Ambassador’ can be seen ‘sucker-punching’ one of the men, while another, female, ‘Ambassador’ attempts to keep the second homeless man from helping his friend while several more punches were thrown.  Though one of the ‘Ambassadors’ is clearly the first to become physically violent, in the end, it was the 2 homeless men who were charged with various crimes, including charges of misdemeanor battery (CA Penal Code 242).  One of the ‘Ambassadors’ was suspended, while the other was fired.  This attack seems to be further evidence of the shocking lengths private organizations will go to in order to criminalize homelessness.

You might be wondering what the DBA is, exactly, and why they are patrolling the streets as if they are law enforcement agents.  Interestingly, the DBA is a private, and privately funded, independent association that now controls the PBID (Property-Based Business Improvement District) in Berkeley, which extends from Delaware Street to Oxford and Fulton Streets to Dwight Way, to MLK Jr. Way.  Within this area, the DBA has been charged, much like its associated group “Block by Block,” with acting as a “proactive safety and security strategy to challenge unwanted activities” (“Block by Block” website).  What they really accomplish is questionable, are they interested in privatizing public spaces, in public safety, or in pretending to be members of the police force?

Lest we over-criticize the PBID in Berkeley, however, it is important to note that, since 1990, many cities in California have made various attempts to solve the ‘homeless problem’ by creating new laws that criminalize homelessness, instead of providing better and more readily available services to this population.  In the last few decades, at least 58 California cities have passed ordinances and legislation alike to prevent homeless persons from remaining.  The city of Manteca, for example, passed 2 ordinances against homeless persons last year, one of which allows the police to throw away or destroy the private property of persons who seem to be without a home without their permission or even their knowledge.  San Francisco has at least 23 similarly geared restrictions.

          While many folks argue that the homeless population in California, and in the Bay area, is a problem that is nearly unique to the state because such a large percentage of the nation’s homeless have taken up residence in these sunny climes, this would not seem to give private companies the right to attack the homeless population.  Certainly, citizens like those employed by the DBA were well out of bounds by greeting the 2 homeless men behind the CVS with physical violence, which a representative of the DBA called a “beating.”

          Measures to pass legislation that might protect homeless populations, like the Homeless Rights and Fairness Act (Assembly Bill 5) fail to pass.  In Berkeley itself, there was a huge debate just about a week ago in the City Council about this very topic, and though both sides were heavily represented (those arguing for more services versus those arguing for criminalization), the Council voted on the side of more strict legislation.

          After the recent assault in Berkeley, for which the homeless men involved might face up to 6 months in county jail and a $2,000 fine (CA Penal Code 242), residents of the Bay area are left with a lot of questions.  The first, and perhaps most important of these is:  why were the ‘Ambassadors’ not arrested on charges of battery while the homeless gentlemen were?

Misdemeanor Battery Charges for Man Who Throws Coffee at 7 Eleven Clerk in San Leandro (CA Penal Code 242)

A 37-year-old man was recently arrested on charges of misdemeanor battery after having thrown a cup of hot coffee at some clerks at a San Leandro 7-Eleven store.  The two clerks accosted the unnamed man as he stood outside of the convenience store allegedly panhandling.  When he was asked to stop, the man threw his cup of hot coffee in the face of one of the clerks and supposedly punched the other clerk in the chest.  Interestingly, police originally wished to charge the man with felony assault with a deadly weapon, the coffee.  Evidently, however, coffee even when hot cannot be considered a deadly weapon.

The crime of ‘battery’ is defined in a very specific way by California law (CA Penal Code 242).  Any time that one individual intentionally uses force or violence against another person, this is considered ‘battery.’  Touching another person in an invasive way, even if there is no physical harm done, may still constitute battery.  When someone speaks of ‘simple’ battery, they are referring to misdemeanor battery charges, not to assault.  Normally, penalties for simple battery include a 6-month stint in county jail and a $2,000 fine.  Had the local law enforcement agents involved in the 7-Eleven coffee throwing case decided that coffee is a deadly weapon, then the man would have been subject to much higher fines and incarceration terms.  Assault with a deadly weapon is a ‘wobbler’ in California (prosecutors determine whether they will treat a particular case as a misdemeanor or as a felony).


Shopper Charged with Felony Battery in Colma (CA Penal Code 243(d))

Many of us have been in the same situation as two women were recently at the Colma Nordstrom Rack.  One woman was standing at the checkout line in front of a 27-year-old mother.  The mother’s child, a preschooler, was making too much noise for woman in line, so she asked the mother to quiet the child down.  The two women entered into a brief verbal argument and that could have been the end, as they say, of that.  However, the woman alleges that the mother followed her out to the parking lot and proceeded to punch her at least twice in the face.  The mother (whose shall remain anonymous in order to protect her identity) was charged with felony battery (CA Penal Code 243(d)) ‘Battery Causing Serious Bodily Injury’ or ‘Aggravated Battery.’  What should be noted in this case is that it is being treated as a felony and that woman’s injuries are considered to be ‘serious’ enough to warrant such a move by prosecutors in the case.

In California, ‘battery’ is defined as the use of violence or force against another person, not just the use of threats (that would be considered ‘assault). Normally, simple battery is treated as a misdemeanor and a conviction under CA Penal Code 242 would mean a $2,000 fine and a maximum sentence of 6 months in county.  The crime of battery only becomes ‘aggravated battery’ when there is ‘serious bodily injury.’  However, serious bodily injury (though sounding quite ominous indeed) could mean something as simple as a broken bone.  This particular crime is a ‘wobbler,’ meaning that it could be treated either as a misdemeanor or as a felony, at the discretion of the prosecutor.  If convicted, this mom could face anywhere from 2-4 years in state prison, away from her child.


Retired Walnut Creek Officer Sentenced for Battery of Woman in Richmond (CA Penal Code 242)

Gregory Thompson (54), a former Walnut Creek police officer, was sentenced recently to 1 year in county jail and 3 years of felony probation for his part in attacking a woman while using a baseball bat.  By all accounts, Thompson was a model officer while on the force and his friends, while supportive of the court’s decision, believe that he made a simple, but silly, mistake.  It seems that Thompson could not get out of the habit of thinking like a cop.  He and his family own a home near Clinton Avenue and San Pablo Avenue.  About 2 a.m. this past August, Thompson noticed a woman near the home, which he was in the middle of trying to sell, and thought that she was attempting to break into it.  The woman, as it turns out, was doing nothing of the sort; she was simply out of gas and trying to find a gas station.  Thompson donned a mask, gloves, 2 handguns, and plastic handcuff ties, grabbed a nearby baseball bat, and attacked both the woman and her car.  Well-intentioned as his behavior may have been, many say that Thompson should not have attempted to take the law into his own hands, no matter what his former training and experience may have caused him to believe.

In the state of California, the Thompson incident was identified as a case of ‘battery’ (CA Penal Code 242) as opposed to assault (CA Penal Code 240).  According to the law, an assault occurs when one person tries to use violence to harm another person.  On the other hand, the term ‘battery’ applies when force or violence is actually used against another person.  Violations of California battery law are considered ‘wobblers,’ meaning that they may be prosecuted either as a misdemeanor or as a felony.  Depending on the circumstances of the particular case, a felony battery charge like Thompson’s could end in up to 3 years in county jail or state prison, 3 years of felony probation, and a maximum $2,000 fine.