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If a 5 year gun enhancements from 1985 precludes me from…

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If a 5 year gun...
If a 5 year gun enhancements from 1985 precludes me from getting probation on my current charges of assault?
Submitted: 8 months ago.Category: Legal
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Answered in 1 hour by:
8/5/2017
Lawyer: RobertJDFL, Attorney replied 8 months ago
RobertJDFL
RobertJDFL, Attorney
Category: Legal
Satisfied Customers: 14,649
Experience: Experienced in multiple areas of the law.
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

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Lawyer: RobertJDFL, Attorney replied 8 months ago

Good afternoon,

A gun enhancement only affected your charge at the time. While the court will have your criminal history, having a prior gun enhancement does not automatically prohibit a court from giving you probation if you are found guilty. There are a number of of factors that go into the court considering whether to grant probation, not just your prior record though. Among them are:

(a) Facts relating to the crime, including: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime. (2) Whether the defendant was armed with or used a weapon. (3) The vulnerability of the victim. (4) Whether the defendant inflicted physical or emotional injury. (5) The degree of monetary loss to the victim. (6) Whether the defendant was an active or passive participant. (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur. (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.

(b) Facts relating to the defendant, including: (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct. (2) Prior performance on probation or parole and present probation or parole status. (3) Willingness to comply with the terms of probation. (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family 1 background and ties, employment and military service history, and other relevant factors. (5) The likely effect of imprisonment on the defendant and his or her dependents. (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction. (7) Whether the defendant is remorseful. (8) The likelihood that if not imprisoned the defendant will be a danger to others.

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Lawyer: RobertJDFL, Attorney replied 8 months ago

Was there anything I could clarify or additional information you needed? If so, please reply without rating, and I'll be happy to assist you further. Otherwise, please leave a positive rating for me by clicking on the stars at the top of the page as that is the only way experts are credited by the site for our assistance. Thank you.

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Customer reply replied 8 months ago
Good morning...the reply was excellent! But within the same subject. If in 1985, if a robbery with a firearm could have been charged with a PC 212.5 or a PC 211? My husband's public defender told me its the same thing! Its confusing to him, after all these years, he's never been charged with a 211 before! He hasn't slept in weeks...please let us know! Thank you for your time!
Lawyer: RobertJDFL, Attorney replied 8 months ago

PC 211 is robbery, which can be charged as either first degree or second degree, depending on the circumstances. PC 212 is an element of robbery (the definition of fear). What distinguishes robbery from other theft crimes is the use of force or fear.

Force, for purposes of robbery law, means physical force. And fear means fear of injury, to either

  • the victim him/herself,
  • a family member of the victim,
  • the victim's property, OR
  • someone else present during the incident
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Customer reply replied 8 months ago
But the question is: can they change the penal codes on him??? At the time: it was PC 212.5 in 1985. And now the District Attorney says its a PC 211? Is that legal? We need this distinguished between the two. It was never an issue until now in 2017.
Customer reply replied 8 months ago
Can codes be changed after the fact???
Lawyer: RobertJDFL, Attorney replied 8 months ago

Ah, I understand now what you're saying I unfortunately don't have access to the 1985 statutes. Since I have to be offline for a bit and cannot look up those statutes, I'm going to opt out and open the question back up to other experts -there may be a California attorney expert available who can better assist you. Please do not rate me, but save your rating for when they assist you.

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