Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?
In this state, if you are an elected or other public official, and most commonly if you’re a law enforcement officer, and you unlawfully attack or try to attack someone by using the authority of your position, then you’ll be charged with a criminal offense under Assault Under Color of Authority (California Penal Code section 149).
By “unlawfully”, you didn’t have legal justification to commit the assault. For example, if George Floyd had been attacked by police in California and survived, then in addition to a host of other felonies, they most certainly would have been prosecuted under this criminal statute.
Typically, this crime is charged as a misdemeanor, but sometimes, in particularly egregious cases (see below), you can be charged with a felony. As a result, this type of crime is known as a “Wobbler” (California Penal Code section 17(b)). The discretion as to which type of charge applies is left entirely up to the prosecutor.
Under California’s draconian and antiquated “Three Strikes Law”, which is predominantly used against indigent people and persons of color, if you Assault Someone Under Color of Authority (California Penal Code section 149), and are charged with a felony thereunder, then you could be charged with a Strike Offense (California Penal Code section 667(a)&(b)).
Specifically, you can be charged with a “Violent-Felony Strike” under California Penal Code section 667.5(c).
if you inflicted “great bodily injury” on the victim/accuser, or if you “use[d] a firearm”. See Penal Code section 667.5(c)(8).
Or, you can be charged with a “Serious-Felony Strike” under California Penal Code section 1192.7(c)).
if the weapon in the assault was “a firearm was personally used by” you (Pen. Code section 1192.7(c)(2)) or if you “personally inflict[ed] great bodily injury” on the victim/accuser (Pen. Code section 1192.7(c)(8)).
Finally, you can be charged with a Serious-Felony Strike if you “personally used a dangerous or deadly weapon” (i.e., not a gun) during the attack (or attempted attack). (Pen. Code section 1192.7(c)(23)).
If this is your first Strike conviction, then you won’t get any additional prison time – assuming the judge sends you to prison (see below). However, you will have to serve at least 4/5’s of your sentence even if you are a model prisoner.
If this is your Second Strike, then your prison term will be doubled by the judge. And if this is your Third Strike (Pen. Code section 667(e)(2)), then you’ll automatically get 25-to-life, albeit with the possibility of parole after 20 years (80% of the minimum sentence).
Assault Under Color of Authority is, again, codified at Penal Code section 149. As discussed above, this particular statute punishes any “public officer” (such as a police officer, sheriff’s deputy, probation or parole officer, detention officer, etc.) who, under the guise or claim of his/her official position as such, attacks or tries to attack someone without legal justification.
Once again, a charge of Assault Under Color of Authority can be tried either as a misdemeanor or a felony, depending on the circumstances of each case, which is why this offense falls under the classification of a “Wobbler” (Penal Code section 17(b)).
Therefore, if you’re convicted of a misdemeanor, at most you’ll receive a 365-day county jail sentence (which is the case with most misdemeanor offenses). Keep in mind, however, that the judge may not actually require you to serve a jail term. But if he/she does, the maximum to which you can be sentenced under California law therein is one year.
Alternatively, if you’re convicted of a felony hereunder, and the judge orders a prison term, then you’ll get a low, mid, or high term – again, depending on the circumstances, including your prior criminal convictions, if any – of 16 months, or two or three years. See Felony Prison Term Not Specified (California Penal Code section 1170(h)(1)).
In addition to possibly being charged as a Strike Offense (Penal Code section 667(a)&(b)), you could also be charged with the following prison-sentence enhancements (which, by definition, means that the District Attorney’s Office is prosecuting you for felony Assault Under Color of Authority (Penal Code section 149).
If you fired a gun at the victim, regardless of whether or not you actually hit him/her, or you attacked or tried to attack him/her with a dangerous object/instrument/weapon, then you could receive a five or ten-year enhancement for:
In addition, or in the alternative, you could receive a similar enhancement if you actually caused severe physical harm under the victim pursuant to the following Special Allegations:
Next, if you are a member of a “street gang” (which would include the numerous violent gangs within the LAPD and particularly in the Los Angeles County Sheriff’s Department), and you committed the assault for the benefit of your gang (e.g., you were a deputy on duty at the Men’s Central Jail and you attacked an inmate to “earn your bones” in your deputy gang), then you would face a Gang Enhancement (California Penal Code section 186.22).
Again, in addition or in the alternative, if your attack was racially motivated, then the Special Allegation would fall under the category of a Hate Crime (California Penal Code section 422.55).
Finally, if your attack resulted in any degree of physical harm to someone at least 65 years of age, then you will also be charged with the Special Allegation of Injuring an Elderly Person (California Penal Code section 368(b)(2)).
Defenses to a charge of Assault Under Color of Authority by definition include all of the defenses to all other types of assault-related and battery-related crimes, which can be found in other articles on this website – specifically, those concerning the following offenses:
In addition, for assaulting someone under color of authority, you could argue that although you were in fact a law enforcement officer, for example, at the time of the incident, you were not acting under “color of authority” – i.e., you weren’t acting in your official capacity.
For example, you may have simply gotten into a bar brawl when you were off duty and out of uniform, and you never identified yourself as a police officer to the purported victim. In other words, even if you weren’t acting in self-defense or in reasonable defense of another against the supposed victim, and assuming you didn’t seriously injure him/her, then you would likely only be charged with misdemeanor assault or misdemeanor battery.
Another viable defense would be where you did assault someone under color of authority, but you were legally justified because you were trying to prevent a robbery or felonious property damage, such as with the recent rash of “flash mob” robberies (as of December 2021).
In late July 2015, former Los Angeles Police Department officer Mary O’Callaghan (age fifty) was sentenced by an L.A. Superior Court judge to three years in state prison for killing a thirty-five-year-old woman during an arrest three years earlier. However, the judge suspended twenty of those months, meaning that if O’Callaghan stayed out of trouble during her prison and likely post-prison parole terms, she would not have to serve those additional months behind bars.
In other words, O’Callaghan would only have to serve 16 months in a state penitentiary, but with good-time credits added to her time served while awaiting sentencing, she could be out in as early as less than half a year. This sentence was particularly lenient in light of the circumstances – and no doubt would have been increased by a factor of two or even three in our current post-George-Floyd-murder era.
Specifically, after O’Callaghan arrested and handcuffed the woman, then placed her in the back of her patrol car, the woman told her she was unable to breathe. Tragically, O’Callaghan – who would subsequently be fired and stripped of all her benefits and accrued pension by the LAPD – ignored her desperate pleas for medical attention.
The entire incident was filmed by O’Callaghan’s own patrol vehicle dashboard camera, as well as her own body-worn video camera (commonly known as “BWV” camera). These two cameras filmed O’Callaghan repeatedly striking the decedent, Alesia Thomas, as well as booting her in the pubic area during the arrest. Moments later, Thomas slipped into unconsciousness while O’Callaghan stood calmly nearby, sucking on a Marlboro cancer stick.
O’Callaghan – a former United States Marine Corps soldier – had been with the police department for almost two decades. Her case attracted national media attention and shined what is clearly a never-ending spotlight on the LAPD’s well-deserved reputation for excessive violence against arrestees.
Interestingly, three months before O’Callaghan’s sentence, the LAPD finally required that its officers activate their BWV cameras before arresting a suspect or otherwise engaging in any sort of investigative or confrontational encounter with members of the public.
In O’Callaghan’s case, jurors who were polled after their unanimous guilty verdict against her confirmed that it was the video footage that sealed the disgraced ex-cop’s fate. Particularly egregious was footage of O’Callaghan slamming her fist into Thomas’ throat and screaming profanities at her while Thomas was trapped in the patrol vehicle’s back seat. Even worse was the obvious terror in Thomas’ eyes as she struggled for breath. Equally atrocious was O’Callaghan’s cavalier reaction to Thomas passing out, never to awaken – the equivalent of “Oops, that’s not good”, as she expressed to a fellow officer.
Thereafter, O’Callaghan waited more than half an hour before bothering to call an ambulance. EMTs pronounced Thomas dead only minutes after they arrived and failed to resuscitate her.
The jury didn’t buy O’Callaghan’s defense counsel’s argument that Thomas had died as a result of a cocaine overdose – a claim which was initially supported by the coroner’s toxicology report.
Particularly disconcerting, however, is the fact that even the DA’s Office recommended only a paltry six-month jail sentence and formal probation of three years to the judge,
In Oct. 2014, LAPD officer Richard Garcia (age unknown) beat up an arrestee, Clinton Alford Junior (twenty-four, Black), by striking and booting him during an incident in South LA. In what was certainly an uncommon occurrence prior to the Black Lives Matter movement, the police brass fired Garcia. (It remains unclear whether Garcia – a decade-long veteran on the force — had any prior disciplinary history.)
Even more unusual, the L.A. County DA’s Office actually filed criminal charges again Garcia for felony Assault Under Color of Authority (Penal Code section 149). A conviction following trial could have resulted in a max of thirty-six months in prison (the mid-term sentence) – never an appealing option for an ex-cop.
Not surprising at all, however, was the fact that then-District Attorney Jackie Lacey – as pro-police and anti-reform as any D.A. for LA County has ever been – allowed Garcia to take a no-jail plea deal in June 2016, which a superior court judge approved only days before.
Specifically, Garcia pled nolo contendere to that felony with a suspended jail (not prison) sentence contingent upon him doing three hundreds hours of volunteer work and paying a measly fine. Upon successful completion of 24 months of probation (presumably informal/summary probation), the felony would be reduced to a misdemeanor, and the misdemeanor then permanently expunged from his record. See:
Through an intermediary, Lacey justified the sweetheart deal by implying that Alford, the arrestee, was an unreliable witness, not least of all because he was being prosecuted for the following felonies (the subject of his arrest by Garcia):
Notwithstanding, according to Alford, he had been bicycling along a major street in South Los Angeles when an unknown male screamed at him and took hold of the rear of his bicycle. After the assailant forced him to stop, Alford claimed he hopped off and took off running for his life. (At the time, LAPD admitted that it had been searching for a robbery suspect who matched Alford’s description.)
All parties agree that several uniformed LAPD officers followed Alford on foot then tackled him. According to video footage, Alford – without being asked – immediately placed his hands behind his back to be handcuffed. That’s when Garcia arrived in his squad car, jumped out, then charged Alford. At that point, Garcia attacked him with kicks, elbow strikes, punches, and slaps. Throughout the entire assault, according to witnesses, Alford never attempted to resist.
It took 180 days for the DA’s Office to file charges against Garcia.