My friend punched another person & the other person grabbed my friends hand & bit off her finger tip-- (she bit thru skin, nail and bone). She had to have surgery, followed by 6 months of finger therapy & is permanently disfigured. The Sheriffs arrested her for Mayhem but the DA didn't file because he said it was "Mutual Combat". The sheriff even went in on his day off, to personally recommend that they file charges. I looked up "Mutual Combat" and it stated that you can only cause damage, equal to the amount of danger you feel that you are in. In my opinion this is far beyond "mutual combat". This is a pretty disturbed individual
The DA has complete discretion to prosecute or NOT prosecute. Nobody can force them to file charges. Perhaps your friend should consult with a personal injury attorney and sue the finger biter.
SAN DIEGO CRIMINAL DEFENSE ATTORNEY--20 years experience
Prosecutors have a great deal of discretion in deciding what to charge. They don't "have" to file anything in any way. What you say about mutual combat is correct. A person cannot use unreasonable force and claim mutual combat. The problem the prosecutor sees, however, is that furry the hurly burly of a fight one person's hands often get into another's mouth and biting happens. Proving Intent To Injure in such cases is difficult.
I know of what I speak, I successfully defended a mayhem charge on identical facts.
Multiple postings? Proportional response is a very, very fine line.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
The DA has complete discretion. In fact if they feel that no crime has been committed, they are ethically obligated to not file charges. Whether or not something is mutual combat really depends on the circumstances. Is your friend bigger than the other person? Why was your friend attacking the other person? What injury did the other sustain? too many variables. But your friend always has the ability to sue the other person civilly.
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