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A review of 300 attempted strangulation cases part i: criminal legal issues

      Abstract

      Three hundred strangulation cases, submitted for misdemeanor prosecution to the San Diego City Attorney’s Office, were evaluated to determine the signs and symptoms of attempted strangulation that could be used to corroborate the victim’s allegation of being “choked” for purposes of prosecution. The study reveals that a lack of training may have caused police and prosecutors to overlook symptoms of strangulation or to rely too heavily on the visible signs of strangulation. Because most victims of strangulation had no visible injuries or their injuries were too minor to photograph, opportunities for higher level criminal prosecution were missed.

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      References

      1. California Penal Code section 273.5(a) states “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”

      2. California Penal Code section 243(e)(1) states “When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as defined in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.”

      3. California Penal Code section 245(a)(1) states “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000) or by both the fine and imprisonment.” (Emphasis added).

      4. California Penal Code section 187(a) states “Murder is the unlawful killing of a human being or a fetus, with malice aforethought.” Section 664 states “Every person who attempts to commit any crime, but fails shall be punished where no provision is made by law for the punishment of those attempts … ”.

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