There are various degrees of assault depending on the circumstances of the offense. If you are charged with aggravated assault, certain factors have escalated the offense from simple assault to a more serious offense. Los Angeles Criminal Lawyer will walk you through some of the factors that make an assault aggravated and what to do when you or a loved one is facing charges for aggravated assault.
The Legal Definition of Assault
Assault, under PC 240, is the unlawful attempt to commit great bodily injury on another person when you have the present ability to cause injury to the victim. The elements of simple assault include:
- You acted in a way that would naturally result in the use of force on another person
- You acted willfully
- You knew the act would lead a reasonable person to believe you would use force on that person.
- You had the present ability to apply force to another person at the time of the act.
Under assault laws, the application of force includes direct or indirect harmful and offensive touching. You don't have to be successful to be guilty of assault. You must also have been aware of the potential of your actions resulting in the application of force.
What is an Aggravated Assault?
An aggravated assault in California refers to any assault that is more severe than a simple assault. It defines several assault offenses committed by using a deadly weapon against a vulnerable person or causing serious injury to the victim.
Unlike simple assault, California does not have a specific offense called "aggravated assault." The term covers several offenses that are serious either because of how they are committed, the victim, or the result of the assault. Actions that cause a simple assault to become an aggravated assault include:
- Using caustic chemicals to assault the victim
- Using a deadly weapon or a firearm in the commission of an assault
- Assaulting a police officer or a protected professional who is actively engaged in their lawful duties
- Causing great bodily injury to the victim. Great bodily injury refers to any significant injury such as concussions, second-degree burns, serious disfigurement, broken bones, and extensive wounds.
- Assaulting a school employee with a deadly weapon
Assault is often described as an incomplete battery, meaning that you do not have to make contact with the victim. The same applies to aggravated assault, where the court focuses on demonstrating your intention to use force on another person and your present ability to inflict that force or great bodily injury.
The present ability to apply force or cause harm to another person implies the ability of a person to act out their threat – spoken or implied. For example, if you are threatening someone with a loaded gun, then you have the present ability to apply force and cause great bodily injury to that person. Therefore, you can be charged with aggravated assault even if you never fired the gun.
Some crimes that are considered forms of aggravated assault include:
1. Assault with Caustic Chemicals
California PC 244 makes it a crime to assault a person using a flammable or caustic substance to injure or disfigure the victim. The crime involves willfully and maliciously placing or throwing a caustic chemical, vitriol, corrosive substance, or a flammable substance onto another person to injure their flesh or disfigure their body.
Under this statute, a caustic chemical is any substance that can corrode or burn living tissue. It includes vitriol and other substances with a flashpoint of 150°F or lower such as gasoline.
Assault with a caustic chemical is a felony with a state prison sentence of two to four years and a fine of up to $10,000.
Note: for you to be charged with assault with a caustic chemical, the said chemical should touch the victim’s skin. If not, the prosecution could charge you with assault with a deadly weapon, especially if the chemical is likely to cause great bodily injury.
2. Assault with a Deadly Weapon
It is a crime in California to attack or attempt to attack another person using a deadly weapon. The law defines a deadly weapon as any weapon or object that could produce great bodily injury or death when used on a person. Deadly weapons include guns, knives, and other objects that could be deadly if used to kill or cause substantial harm to another person.
Objects that could become deadly weapons based on their use include:
- A vehicle, when intentionally used to run over another person
- A dog capable of attacking a person on command
- A baseball bat, if used on someone
When charged with assault with a deadly weapon, the prosecution must prove these elements:
- You committed an act that would reasonably result in the direct application of force on another person
- You committed that act using a deadly weapon or with force likely to produce great bodily injury
- You acted willfully
- You were aware that the action could lead a reasonable person to believe that you would apply force to that person
- You had the present ability to apply force with the lethal weapon at the time of the act
Injuries that are rated as great bodily injury include:
- Broken bones,
- Gunshot wounds
- Lacerations
Suppose you did not use a firearm (or used an ordinary firearm) to commit the assault. In that case, the offense is a wobbler that carries a one-year sentence in county jail (minimum six months if you used an ordinary firearm) for the misdemeanor and up to four years in state prison for a felony conviction.
If you used a semi automatic firearm, a .50 BMG rifle, an assault weapon, or a machine gun, the offense is a felony with a sentence of up to 12 years in state prison.
If the victim was a peace officer or another protected professional, the crime is a felony with a prison sentence of up to five years. If you assaulted a peace officer with a firearm, you face up to 12 years in prison.
Felony assault with a deadly weapon is also an aggravated felony in California, which earns you a strike on your record. If you are an immigrant, you could be deported if convicted.
3. Assault with a Firearm
When you use a firearm to assault another person, you could be charged under assault with a deadly weapon law or assault with a firearm law. Assault with a firearm is defined based on these elements:
- You committed an act using a firearm which would probably result in the direct application of force on another person
- You acted willfully
- When you acted, you knew that a reasonable person would believe you would use force on that person.
- You had the present ability to apply force using the firearm at the time you acted.
California defines a firearm as any device designed as a weapon from which a projectile can be discharged or expelled through the force of an explosion or another form of combustion. Any weapon that includes a pistol, rifle, semi-automatic firearm, machine gun, .50 BMG rifles, and assault weapons are all firearms that could result in charges for assault with a firearm.
Assault with a firearm is a wobbler. When convicted of misdemeanor assault with a firearm, you face 6 to 12 months in jail. When convicted of a felony, you face two to four years in state prison and fines. In addition, you face additional sentencing enhancements for the personal use of a firearm. Under these sentence enhancements, you face an additional:
- Three, four, or ten years for assault with an ordinary firearm
- Five, six, or ten years for assault using a machine gun or an assault weapon
4. Assault likely to cause Great Bodily injury
PC 245 (a) (4) makes it a crime to assault another person through a means likely to cause great bodily injury. This crime carries a maximum sentence of one year in jail or four years in state prison.
When prosecuting you for assault by a means likely to cause great bodily injury, all the prosecution needs to prove is:
- You committed assault
- You could have caused great bodily injury to the victim.
One distinguishing factor about the offense is that you do not have to cause injury to the victim to be convicted – all the prosecution needs to prove is that you could have caused great bodily injury had you succeeded. For example, if you swing a baseball bat at someone intending to hit them, but they duck, the absence of a successful hit will not absolve you of criminal culpability.
5. Assault with a deadly weapon on a School Employee
245.5PC makes it a crime for anyone to assault a school employee using a Taser, firearm, or another deadly weapon. California defines a school employee as anyone who is employed on a part-time or full-time basis by a school district. School employees include the teaching staff at a school, administrators, and anyone working in the school system.
Assaulting a school employee with a deadly weapon is a wobbler offense. The penalties for the offense vary based on the weapon you used to assault the school employee.
For assault committed using any deadly weapon except a firearm, the penalties include three to five years in state prison or a maximum jail sentence of one year for a misdemeanor offense.
If you used a firearm to assault a school employee, you face between 6-12 months in jail for a misdemeanor conviction and four to eight years in prison for a felony conviction.
If you committed the assault using a Taser or a stun gun, you face up to one year in jail for a misdemeanor conviction and up to four years in prison for a felony conviction.
6. Assault on a Peace officer or a Protected person
Assaulting a peace officer or another protected person becomes an aggravated offense because the victim is a protected professional. Some of the protected professionals include:
- Police officers
- Highway Patrol Officers
- EMTs and Paramedics
- Lifeguards
- Firefighters
- Process servers
- Traffic officers
- Doctors or nurses providing emergency medical care
Assaulting a peace officer or another protected person is a misdemeanor that could result in a one-year sentence.
Fighting Aggravated Assault Charges
Aggravated assault defines any assault offense that is likely to produce great bodily injury or is committed against a protected person. The offenses that constitute aggravated assault typically carry serious penalties, including imprisonment, loss of firearm rights, and deportation if you are a legal alien.
Therefore, fighting these charges should be your priority when facing charges of aggravated assault. Some of the common defenses to aggravated assault include:
1. No Assault
Whether simple or aggravated assault, the underlying charge is an assault. Therefore, if you did not attempt to touch another person directly or indirectly, you cannot be guilty of assault.
The prosecution usually has the burden to prove that you committed an aggravated offense. Your defense attorney will challenge the elements of the offense, and the prosecution has to prove them to be true beyond a reasonable doubt.
Without meeting this standard, you can argue that no assault occurred. This defense also applies where you did not commit the offense at all.
2. No Intent
Your actions must have been intentional for you to be charged with an aggravated assault. Assault arises from the willful and intentional act of touching another person rudely or offensively. For instance, if Brett intentionally hits Lenny with his baseball bat, he is guilty of aggravated assault. However, suppose Lenny was standing behind Brett, who had the bat on his shoulder. As he turns, he accidentally hits Lenny. In this case, Brett can argue that his actions were not intentional, thus making him not guilty of an assault.
3. False Accusations
Assault involves offensively touching another person. It does not necessarily involve proof that the person suffered an injury, making it easy for someone to falsely accuse you of assaulting them.
If you are falsely accused of assault, you should take the necessary steps to protect yourself. These steps include:
- Contacting an experienced assault defense attorney. While the temptation to defend yourself might be there, you are better off working with a criminal defense expert, especially when you are innocent.
- Take time to learn more about the charges you are facing and what to expect from the criminal justice process. You should ask your attorney questions and spend time researching your charges to learn more about what you are facing.
- Know your rights, especially when dealing with the police. It’s easy to fall into the temptation of believing that the police will defend your innocence – that is the job of your defense attorney. Therefore, exercise your right to remain silent and request the presence of an attorney when being questioned.
- Present evidence and witnesses who can provide your side of the story and clear up any issues that could have led to the false accusations.
False accusations of assault can be damaging. If you are accused of assault, remember to remain calm and leave the defense process to your attorney. This way, you do not end up worsening the situation.
4. Mistaken Identity
Both victims and witnesses are not immune to making mistakes when identifying a perpetrator. Mistaken identity can arise where the victim did not have the best look at the offender, or you may have similar features to the offender that make it easy for them to identify you mistakenly.
Mistaken identity, in most cases, is often a result of factors such as:
- Poor lighting when the victim or witnesses saw you
- Poor police protocols – for instance, when doing suspects lineup
- Poor recall of details, particularly when weapons or violence is involved
- Too much time passes between an incident and identifying the potential perpetrator
If you are working with an attorney, they should be able to challenge the validity of eyewitness identification and provide alibis and expert witnesses on your behalf.
5. Self-Defense
Self-defense is an applicable defense to aggravated assault. The law allows you to use reasonable force to ward off any immediate threat of harm to yourself or another person. For instance, if the victim was the initial aggressor and you responded to protect yourself or another person, you are not guilty of aggravated assault. The court considers who started or escalated the aggression in cases involving aggression.
The self-defense defense has several elements that you must prove in court:
- You were reasonably afraid that another person would use force or harm against you
- There was a legitimate threat of the other person causing harm to you
- You did not provoke the person
- You used reasonable force to stop the aggression
California is a stand-your-ground state. Therefore, you are not legally required to try and avoid a person who poses a risk of harm to you. It is allowed to defend yourself from that threat immediately.
Find an Assault Defense Lawyer Near Me
What makes an assault aggravated is how you committed the offense, who the victim was, and the injuries the victim sustained. Depending on the offense, you could face a felony or misdemeanor charge, which can significantly affect your life, especially your career prospects. When you are charged with aggravated assault, contact a criminal defense attorney to discuss the specifics of your case, including the most likely charges you will face and the possible defenses. Contact Los Angeles Criminal Lawyer at 310-502-1314 for a consultation to get started.
