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Asault with a Deadly Weapon

Assault is a serious matter and being charged with assault of any kind can carry serious ramifications to you, both at present and in the future. Assault can be broken into more specific types of assault, and assault with a deadly weapon is included in this. Importantly, deadly weapons do not refer only to a variety of firearms and shooting weapons but can include other objects as well as your body.

Though often coupled with battery, such as ‘assault and battery’, assault is a standalone, separate action. In an assault, one person attempts to commit violent bodily injury to a person. Battery, on the other hand, is the actual use of force or violence against a person. Put simply, assault is the attempt, whereas battery is the actual commitment of violence to a person’s body

At Los Angeles Criminal Lawyer, we can help defend you against accusations of assault with a deadly weapon. Get in touch with us today, whether online or by phone, to learn about us: we have worked with clients across the Los Angeles region, successfully defending many assault cases, including assaults with a deadly weapon.

The intent of this article is to provide you an overview of assault with a deadly weapon in the State of California, including definitions, laws, and examples, while also helping you understand that being charged with (formally accused of) such an assault does not mean you will be convicted, or deemed guilty, of it. We provide this general overview on assault with a deadly weapon as informational in nature, meaning this should not be understood as legal counsel. Only a lawyer with a full, accurate, and specific understanding of your situation can provide such advice. 

What is assault? 

The State of California defines assault as an unlawful attempt partnered with the ability by one party to commit a violent, physical injury to the body another party. California’s Penal Code Chapter 9 deals with the definition and legal consequences of assault, in sections 240-248. 

Importantly, assault is a general term involving illegal violence towards another person. The crime has further subsets, which indicated aggravated assault, of which assault with a deadly weapon is one. (Other subsets of aggravated assault include assault on a public official and assault with caustic chemicals or flammable substances.) Simple assault can be prohibited by both criminal law and civil law. 

While a person can be charged with simple assault, this article focuses primarily on charges of assault with a deadly weapon, which can be punished as a lesser misdemeanor or a more severe felony. 

Understanding assault with a deadly weapon 

Assault with a deadly weapon is specifically prohibited by California Penal Code Chapter 9, Section 245. Its definition is an attempt to cause violent injury to another person, by use of a deadly weapon. This means that neither actual physical contact or action harm or necessary are required for an assault charge to be possible. 

Deadly weapons can include a range of guns or other injurious objects, but weapons can also include using your body in such a physical way that intends great bodily injury. 

Assault does not require that the victim actually was injured, just that the assailant’s act could, both by intent and capability, result in great bodily harm to the victim. For instance, if one person held a loaded gun at a person, that person can assume the assailant intends to and likely could shoot the gun, resulting in a severe, significant bodily injury, even if the assailant ultimately did not shoot the gun. 

What is great bodily injury? 

Great bodily injury, sometimes shortened to GBI, refers to a significant or substantial physical injury. Such an injury goes beyond minor or even moderate harm. 

Examples of this include, but certainly are not limited to: 

- Broken bones

- Cuts or lacerations that require medical stitches

- Broken, crushed, torn or otherwise destroyed teeth

- Medical situations that require immediate surgery

What is a deadly weapon?

The law further breaks the crime of assault with a deadly weapon into four sub-categories, based on the type of item(s) used to assault the other party: 

- A deadly weapon or an instrument other than a firearm, which can include:

  • A sharp object, like a glass bottle, a pen or pencil, a knife,
  • Household objects like vases or furniture
  • Automobile
  • Dog or another animal

- Firearms

- Machine guns, assault weapon, or a .50 BMG rifle, defined as followed:

  • Machine guns are any weapon that shoots or can be set up to shoot more than a single shot automatically by a single trigger function (as opposed to a gun that requires manual reloading)
  • Assault weapon, which can include any of the following:
    • A semiautomatic rifle that has no fixed magazine
    • A semiautomatic rifle with a fixed magazine and capacity to hold more than 10 rounds or that is shorter than 30 inches
    • A semiautomatic pistol, with exception to certain makes that do meet legal public purpose
    • A semiautomatic shotgun
  • A .50 BMG rifle is any center fire rifle that can shoot a .50 BMG cartridge, which does not have to fall under the definitions for assault weapon or machine gun

- Assault without a weapon but using any kind of bodily force likely to produce great bodily injury. This includes but isn’t limited to:

  • Hitting or punching
  • Pushing
  • Kicking
  • Scratching or biting
  • Choking 

State or federal crime: assault with a deadly weapon 

Depending on your situation, assault with a deadly weapon can be fall under state or federal criminal law. In most situations, it is the state that prosecutes such allegations. 

Only should such an alleged assault take place on U.S. property is the crime a federal crime. U.S. property can include federal or military property, like Army bases or federal prisons, national parks, and onboard U.S. ships at sea. If your charge took place in one of these locations, it is likely to be handled as a federal crime case, and, if convicted, you will be guilty of a felony crime. 

In most other instances, assault with a deadly weapon is a crime within the state’s jurisdiction. In California, you can be charged with either a misdemeanor (less severe) crime or a felony (more severe crime). Punishment varies depending on these definitions, as well as who was involved and how severe the intended deadly weapon is. 

Punishment for assault with a deadly weapon 

Punishment for assault with a deadly weapon in California ranges widely depending on the severity of assault, the weapon that was used, as well as the victim of the assault. 

- If you are convicted of an assault with a deadly weapon or some other tool or instrument other than a firearm, you can receive a sentence of two, three, or four years in a state prison or one year in a county jail, or a fine up to $10,000, or some combination of a prison sentence and a fine.

- If you are found guilty of an assault with a firearm, the punishment is two, three, or four years in a state prison or between six months and one year in a county jail, a fine up to $10,000, or some combination of a fine and jail or prison sentence.

- If you are convicted of an assault with a machinegun, assault weapon, or a .50 BMG rifle, your punishment will be four, eight, or 12 years imprisoned in a state prison.

- If you are convicted of an assault by any other means of force that was determined to result in great bodily injury, your punishment can be a prison sentence in a state prison for two, three, or four years, or time in a county jail for up to one year, a fine up to $10,000, or a combination of a fine and jail or prison time. 

Additional, more severe punishments are incurred based on the victim: 

- Someone who commits an assault with a deadly weapon, tool, or instrument that is not a firearm and/or by any means necessary with the goal to inflict great bodily injury upon the victim who is a peace officer or firefighter on duty – and the assailant would reasonably know this fact, perhaps by way of verbal communication or official uniform – will have a state imprisonment of three, four, or five years.

- Someone who commits an assault with a firearm on a peace officer or firefighter – with reason to know who the victim is – is subject to a punishment of four, six, or eight years in state prison.

- Someone who uses a semiautomatic firearm in an assault on a peace officer or firefighter – and the assailant reasonably understands this – is punished with imprisonment in state prison for five, seven, or nine years.

- Some who commits an assault on a firefighter or peace officer with a machinegun, assault weapon, or .50 BMG rifle, and it is reasonably clear that the victim is acting in an official capacity, is subject to a punishment of six, nine, or 12 years in a state prison. 

Victims who are acting in official capacities are defined as: 

- A peace officer is any person designated as a peace officer under California Penal Code, which can include a sheriff, undersheriff or deputy sheriff, chief of police, police officer, etc.

- A firefighter refers to any person who is a member, officer, or employee of a fire department or firefighting or fire protection agency of the U.S. federal government, the State of California, or any city, county, district, or municipality within the State of California. This includes both paid and volunteer persons. 

Someone charged me with assault – what can I do to fight it? 

As soon as you are charged with assault with a deadly weapon, or believe you may be charged with it, you can begin to mount your defense. 

First, write down details of the instance in question. This record is solely for you, but it can help provide specifics that you may otherwise forget. Include location, time of day, persons nearby (even potential witnesses), exchanged words, actions that lead up to the event, even the weather. The more details you can provide, the more knowledgeable your lawyer can be, helping defend you as best as possible. If you know the person, you may want to include your relationship with them, whether there is a motive for you or for the other person to develop such an allegation, and previous contact with the person, both leading up to and after the event in question. 

Next, consult with professional lawyers who are experienced in this type of criminal defense. You should speak with more than one lawyer in order to determine who can provide the most specific guidance for your situation. Hire the one that offers you the most personalized, hands-on experience. 

Understand your legal rights. Your lawyer can help you explore your rights after an official charge against you is filed. This could mean choosing to settle out of court, perhaps in exchange for money, pursuing a plea bargain, wherein you plead guilty in exchange for a lower sentence, or taking the case to court to allow a judge to make a decision. 

Prepare for court. Should your case go to court, work with your lawyer as well as professional consultants to conduct yourself in the positive light in court. Court days can be daunting and intimidating, especially in a case like this. Dress professionally, speak clearly and respectfully, and pay attention when others are speaking. 

Assault with a deadly weapon: Common defense strategies 

If legal charges are filed against you, it is the responsibility of the prosecutor (the alleged victim’s lawyer) to prove two things about you (the defendant): 

· That you willfully meant to connect with or touch another person using a deadly weapon, as defined above; and,

· That you had the ability to induce great bodily injury.

Inherent in this is that the prosecutor must prove that you acted in a way that the alleged victim could reasonably assume that your act would directly and likely result in bodily force against them. Both of these conditions can be hard for a prosecutor to prove in court, especially with the guidance of your professional lawyer. 

Here are common defenses if you are charged with assault with a deadly weapon that a lawyer it likely to explore:

- Self-defense or the defense of others. If you had fair reason to believe the other person was going to inflict great bodily injury upon you, the law justifies self-defense, which allows you to use as much force as reasonable and necessary to prevent or repel the person acting upon you. This tenet of self-defense can be used in the defense of other, third parties.

  • For example, perhaps you thought the other party intended great bodily harm with a weapon or other deadly force, so you acted in order to defend yourself.

- Lack of intent. This assault charge requires that you intended to commit serious violence that results in great bodily injury on your victim. But if you happened to assault someone without intending to, this can be a good defense.

  • For example, you may be swinging an axe to chop wood, and if a person is injured because he or she stood behind you, this is not assault with a deadly weapon because you had no intention of injuring the person.

- Inability to carry out such a threat. This assault charge requires not only your intent to commit violence, but your ability and capacity to do so. Therefore, you may be able to prove that you were incapable at the moment of acting in any way that would inflict great bodily injury.

  • For example, the alleged victim may assume you had a gun in your possession, and the victim therefore had a reasonable thought you may use it in a violent manner. However, you were not carrying a gun, so you were not capable at that time to inflict such violence.

- Victim motivation. This defense angle can explore whether you and the alleged victim had a previous relationship of any kind that may explain why the other party sought revenge or other retaliation against you by making such an assault charge.

  • For example, perhaps you and your accuser had a prior domestic relationship and the accuser wants to get back at you by insinuating specific charges that can punish you severely. This can become a he-said-she-said situation, but remember, the prosecuting lawyer holds the onus of proof for determining that you did it – that means proof is stronger than circumstance.

If there are accusations of assault against you, begin searching for a lawyer who can defend against such criminal charges. Once you choose a lawyer – based on credentials, experience, and relationship with you – you should share all details of your case in a manner that is completely open and honest. Only once your lawyer has a full understanding of the many factors at play can he or she develop the best defense strategy for you and provide all your options, guiding you towards your best-case scenario.

Learn how we can help you fight your allegations of assault with a deadly weapon. Contact Los Angeles Criminal Lawyer today at 310-502-1314 – we are ready and able to help you.

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