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San Diego Criminal Law Center was created to provide useful information for anyone charged with a crime in San Diego and throughout the state of California. Author and attorney Vikas Bajaj has over 16 years of criminal defense experience. If you have been charged with a crime or under investigation, read our articles for useful info that may help you during this difficult time.


A San Diego man was recently taken into police custody after he was accused of threatening another man with a machete. When police arrived on the scene in at approximately 4 AM, they witnessed the man walking between El Cajon Blvd and Meade Ave in North Park. The man refused to drop the large knife when confronted by police, and was subdued with bean-bag pellets and a police dog.

What kind of criminal charges can be filed against a man who threatens another person with a machete? San Diego prosecutors may pursue charges for brandishing a deadly weapon and/or assault with a deadly weapon. The specific charges will depend on the seriousness of the man’s conduct.

Brandishing a Deadly Weapon

In California, it is illegal to draw, exhibit, or use a deadly weapon in a threatening manner. Brandishing a deadly weapon, as defined in Penal Code 417 PC, occurs when a person:

  1. Draws or exhibits any deadly weapon in a rude, angry, or threatening manner, or
  2. Unlawfully uses a deadly weapon in a fight or quarrel.

Let’s break down the required elements of the crime:

Deadly Weapon

What is a deadly weapon? For the purposes of California law, a deadly weapon is defined to mean “any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

The definition is fairly broad and can be interpreted to include a variety of different items. Some items that have innocuous and innocent purposes – such as a pillow or high heel shoe – can be considered a deadly weapon when used for malicious purposes.

A machete, which is essentially a very long, sharp knife or sword, could very easily be considered a deadly weapon.

Rude, Angry, or Threatening Manner

In order to be charged with brandishing a deadly weapon a person must do more than simply display an item to another person. The weapon must be displayed in a “rude, angry, or threatening manner.” A jury will consider all relevant circumstances to determine if the method in which a weapon was displayed should be considered rude, angry, or threatening.

Assault With a Deadly Weapon

California law also prohibits assault with a deadly weapon. Assault, as defined in Penal Code 245(a)(1) PC, occurs when you engage in conduct that “by its very nature, would probably result directly in the application of force to someone else.”

There are few specific details about the behavior in which the San Diego man engaged. Reports indicate that the “threatened” another person. If this threat included behavior that would likely cause him to make contact with or harm that person, he could face charges for assault. For example, if he actively swung the machete at another person or charged at them while holding it in their direction, he may face charges for assault. If he simply displayed the weapon, but did not engage in conduct which would put the other person in harm’s way, he may only face charges for brandishing the weapon.

Penalties for Crimes Involving a Deadly Weapon

Displaying or using a deadly weapon to intimidate or harm another person are serious crimes in California. The penalties the San Diego man faces will depend on his specific behaviors and his criminal past.

Consequences for Brandishing a Deadly Weapon Other than a Firearm

Brandishing a deadly weapon can be charged as a misdemeanor or a felony. Felony charges generally only apply when the deadly weapon used is a firearm. Brandishing a deadly weapon, other than a firearm, is generally a misdemeanor, punishable by no less than 30 days in jail.

Consequences for Assault With a Deadly Weapon

Assault with a deadly weapon can also be charged as a misdemeanor or a felony in California. The specific charge will depend on the:

  • Type of weapon involved,
  • Seriousness of the offense,
  • Degree of harm to any victims, and
  • Defendant’s criminal record.

Misdemeanor: Misdemeanor assault with a deadly weapon is punishable by one year in a San Diego County jail.

Felony: Felony assault with a deadly weapon is punishable by 2-4 years in prison. The sentence can be extended if a victim suffers serious bodily injury.

Fighting Deadly Weapon Charges in San Diego

Displaying or using a deadly weapon in San Diego can have serious criminal consequences. If you have been arrested for a crime involving a deadly weapon, do not hesitate to contact the San Diego Criminal Law Center for help. Our attorneys will help you fight any criminal charges you may face. A strong defense can help you minimize the consequences of your arrest and avoid serious penalties. Call today to request a free consultation and learn more.

La Jolla Student Arrested for School Shooting Threat

Any threats about school shootings will be taken very seriously. La Jolla police demonstrated this when they arrested a 15-year-old student for making two distinct threats to shoot up his high school earlier this month. The student reportedly made one threat verbally and posted the other threat on social media for public consumption. When police arrested the boy they did not discover any firearms in his home. School shooting threat-related arrests have been on the rise in San Diego. The La Jolla boy is the sixth to be arrested for making threats in past few weeks.

Making Criminal Threats

While we have the freedom to say the things that are on our minds, this right does not necessarily protect our harmful, hateful, or inciteful speech. California law explicitly criminalizes speech threatening great bodily harm that puts others in a state of imminent fear. Under California Penal Code 422 PC, it is a crime to make specific threats to kill or physically harm another person. You can face criminal charges if those threats put victims in reasonable fear for their safety.

What is a Criminal Threat?

A statement will only be considered to be a threat if it is clear, immediate, unconditional, and specific. Simply making general statements about your desire to harm another person will generally not be sufficient to classify it as a criminal threat. However, if you provided some clarity or detail about your plan to harm a person, that statement may be considered threatening. The words that are chosen, the manner in which they are conveyed, and any relevant circumstances can be considered when determining if a statement should be classified as a criminal threat.

When is a Threat Immediate?

Is threatening to shoot up your school in a week an immediate threat? How about threatening to bring a gun to school in the morning? When will a threat be considered “immediate” for the purposes of Penal Code 422? Contrary to what you may think, you do not have to have the immediate capability to carry out a threat. Instead, the context of your threat will be used to determine if the threat was genuine and would likely be carried out at some point in the near future. Whether or not a threat is immediate will be a question of fact.

How Can Criminal Threats Be Made?

California law has a fairly broad definition of what can be considered a threat. Any threatening statements made verbally, in writing, or electronically can be classified as a criminal threat. The boy arrested in La Jolla made criminal threats in two ways: verbally and electronically. Both are against the law.

Threats Must Be Intended

California law requires that the person making the threat (a) intend for it to be taken as a threat and (b) put victims in reasonable apprehension of fear.

Intent to Make a Threat: You cannot be convicted for making criminal threats if you didn’t intend for your statement to be taken seriously.

Reasonable Apprehension of Fear: In order to be convicted for making criminal threats, your statement must make the victim fearful for his or her safety, or the safety of an immediate family member.

Penalties for Making Criminal Threats

Making criminal threats can be a misdemeanor or a felony in California. The charge will depend on:

  • Whether you intended to carry out the threat
  • The degree of harm suffered by your victim(s), and
  • Your criminal record.

Penalties for making criminal threats include:

  • Misdemeanor Criminal Threats: Maximum of 1 year in jail and $1,000 in fines.

 

  • Felony Criminal Threats: Maximum of 3 years in prison and $10,000 in fines.

 

Fighting Charges for Making Criminal Threats in San Diego

It is important to fight back whenever you are accused of breaking the law. If you have been arrested and/or charged with making criminal threats do not hesitate to contact the San Diego Criminal Law Center for immediate assistance. Our attorneys can help you fight to minimize the consequences of your arrest and protect your future. Call us today to set up a free consultation.

A former pitcher for the Los Angeles Dodgers has been arrested following the discovery of more than 44 pounds of cocaine in his San Diego home. According to reports, Esteban Loaiza was being investigated by police after he was seen driving a vehicle that was believed to be involved in a drug trafficking operation. During a traffic stop, police discovered a compartment in the vehicle that is traditionally used to smuggle narcotics. They requested and received a search warrant for the former pitcher’s home. During the search, they discovered 44 pounds (20 kilograms) of cocaine worth more than $500,000. He was immediately arrested and booked on suspicion of possession, possession for sale, and transporting cocaine.

Drug Charges in San Diego

San Diego is a hotbed for drug activity in California. Investigators aggressively track and pursue individuals who they believe to be involved in drug trafficking programs. While some drugs are becoming more acceptable – and even legal – in the state, hard drugs like cocaine are still investigated and prosecuted aggressively.

Possession of Cocaine With Intent to Sell

It is illegal to possess any amount of cocaine in California. The seriousness of the crime is directly linked to the amount of the drug found in the defendant’s possession. Possession of a small amount of the drug is generally considered possession for personal use, as defined in Health and Safety Code 11350 HS. Thanks to Proposition 47, possession of for personal use was recently downgraded from a felony to a misdemeanor. Loaiza was found with 44 pounds of cocaine in his possession. This will likely qualify as possession for sale as defined in Health and Safety Code 11351 HS. Possession for sale is a felony, carrying a maximum penalty of 2-4 years in prison and up to $20,000 in fines.

Transporting Cocaine

In California, it is a serious crime to sell or transport cocaine. Health and Safety Code 11352 HS makes it a crime to engage in (or offer to do) any of the following activities:

  • Sell cocaine (and other controlled substances),
  • Transport cocaine with the intent to sell, and
  • Give or administer cocaine to another person.

Transporting cocaine for sale is punishable by a three, six, or nine years in prison. The length of the penalty will depend on the defendant’s prior criminal record, the amount of the drug in his/her possession, and the distance traveled with the drugs. Crossing multiple borders will result in a harsher criminal sentence.

Actual vs. Constructive Possession

How can Loaiza be charged with the possession of cocaine if the drugs were not found directly on him? Possession of drugs can be either actual or constructive. Actual possession means that you physically have something on your person. Actual possession can include things in your pant pockets, in a jacket or coat, or in a backpack or purse you are holding.

Constructive possession means that you have possession of something that is not directly on your person. Instead, you have the authority and ability to exercise control over property that is located somewhere else. This property could be in your car, in your home, stashed away in an alley for safekeeping, or even temporarily in someone else’s care. Just because another person also has possession of an item does not necessarily mean that you cannot also possess it. All that matters is that you have the authority and ability to exercise control over that property.

Since the cocaine was found in Loaiza’s personal home – a place that he has authority to control – the drugs were considered to be in his constructive possession.

Fighting Drug Charges in San Diego

Some of California’s drug laws are becoming more lenient. However, most of the changes to the laws are in regard to possession of drugs for personal use. The state still aggressively prosecutes individuals who are believed to be involved in the sale, distribution, and trafficking of controlled substances. If you are facing criminal drug charges in San Diego it is important to speak with an experienced criminal defense attorney. When you hire an attorney to handle your defense you have a better chance of securing a favorable plea or getting the charges dismissed.

Call the experienced attorneys at the San Diego Criminal Law Center to schedule a free consultation and learn more. We will review the criminal charges against you, determine if your rights have been violated, and answer the questions you have.