What is Assault with a Deadly Weapon?
As mentioned in the Assault page, there are many “enhancements” that go along with an Assault charge, provided the Prosecution can prove all the elements of a “simple assault”, plus additional facts relating to where, or how the “Simple Assault” was committed as well as who the assault was committed on. Assault with a Deadly Weapon is its own distinct crime due to a determination by the legislature that the act of committing an assault by utilizing a “deadly weapon” should be penalized more harshly than other types of assault. As you have seen throughout this website, there are three forms of assault that are treated more severely than “simple assault”: (1) Assault on a Public Official, (2) Assault with Caustic Chemicals or Flammable Substances, and (3) Assault with a Deadly Weapon.
California Penal Code §245 provides the statutory language making it a crime to commit an assault while using a deadly weapon; this section also provides the penalties associated with the use of different types of deadly weapons, as well as punishments depending on who the assault with a deadly weapon was committed upon. Initially, it should be noted that the statute itself creates 4 sub-categories of items used to commit the assault: (1) Deadly weapons other than firearms, (2) Firearms, (3) Semi-automatic weapons; and (4) Machine guns. The statute further distinguishes the use of these weapons on victims who are peace officers/firefighters performing their duties, and victims who are not. Since the underlying offense of Assault with a Deadly Weapon is Assault, it is important to understand the crime of assault before delving into the additional facts necessary for the charge of Assault with a Deadly Weapon. There are several working definitions of “simple assaulti.” For this article, we will utilize CALCRIM 875, which are jury instructions for Assault with a Deadly Weapon; these instructions were drafted and approved by the Judicial Counsel of California Advisory Committee on Criminal Jury Instructions. To be convicted of Assault with a Deadly Weapon, the Prosecutor must prove the following to the juryii:
- The Defendant engaged in conduct utilizing a deadly weapon other than a firearm, a firearm, a semiautomatic weapon, a machine gun, assault weapon, or a BMG rifle, that would naturally, directly, and probably result in physical force being applied to the person of another; OR
- The Defendant engaged in conduct that, by its nature, result in the application of force to another person; AND
- The force used would probably result in Great Bodily Injury (“GBI”)
- The Defendant engaged in that conduct “Willfully”;
- When the Defendant engaged in that conduct, they were aware of sufficient facts that would lead a reasonable person to realize the inherent risks of their conduct; AND
- When the Defendant engaged in that conduct, they had the “present ability” to apply the force that would result in GBI.
Like every other criminal charge, a Defendant cannot be convicted of Assault with a Deadly Weapon unless the Prosecution has proven every element beyond a reasonable doubt. Naturally, the strongest defenses your attorney can raise are defenses which disprove an element of the crime their client is charged of. The attorneys at Los Angeles Criminal Lawyer (“LACL”) have decades of combined experience representing clients accused of criminal conduct, and have effectively raised defenses negating the Prosecution’s case against their clients hundreds of times. There are other defenses your LACL can raise, but those will be addressed later. Since negating the Prosecution’s case against you is the most effective method of obtaining a favorable result in your criminal trial, it is important to understand what each element means. This article will: (1) detail the elements of the “simple assault”, (2) discuss how weapons are classified, (3) define “Great Bodily Injury”, (4) identify the various penalties associated with different violations of this statute; and (5) explain how your LACL attorney can assist you in a successful defense against these charges.
What Does “The Defendant engaged in conduct that, by its nature, result in the application of force to another person” Mean?
The first element that the Prosecution must prove is that the Defendant engaged in culpable conduct, that is, the Defendant must have done something wrong. For assault, the underlying act is engage in conduct that by its very nature would resultiii in direct physical force being applied to another person. Further, the conduct has to be of the type where it would likely produce the application of physical force to another. Thus, the Prosecutor must prove both aspects of this element in order to satisfy it.
Billy sees a group of girls sitting on the benches at school, and decides to try and scare them by kicking a soccer ball in their direction. The ball does not hit any of the girls, but Billy will have satisfied this element of assault nonetheless. Kicking a ball in the direction of a group of people will naturally result in the application of physical force to another person, since nothing else needs to happen in between the kicking of the ball, and the application of physical force to those people. Further, it is probable that physical force will be applied to another person since there was a group of people in the vicinity where Billy was kicking the soccer ball.
Billy sees a group of girls sitting on the benches at school, and decides to kick the ball at the wall 20 yards away. As Billy kicks the ball, David runs in front of Billy and blocks the kick. The soccer ball flies off David’s foot and crashes onto the bench where the girls are sitting. Billy would not have satisfied the first element of assaultiv. It is true that the natural result of kicking a ball would be to cause physical force being applied against whatever it connected with, but it was not the probable outcome of Billy kicking the ball away from people. The only reason the result occurred, was because David intervenedv.
As mentioned above, this element goes to the “culpable conduct” of the Defendant. It is inaccurate to say that the intent of the Defendant is determinative here, though it can shape the way the act is perceived. Most conduct will satisfy the “natural result” prong of this element, but the “probable outcome” aspect is a grey area. Having skilled counsel representing you will allow them to stress the vagueness of this requirement, and ultimate convince the jury that you have not satisfied the first element of the crime of assault. As a result, the Defendant would not be convicted of assault.
What Does “the force used would probably result in Great Bodily Injury (“GBI”)” Mean?
In order to be convicted of violating California Penal Code §245, the Prosecution must also show that your conduct was likely to result in “Great Bodily Injury.” For purposes of the statute, “Great Bodily Injury” means any substantial or significant injury. In laymen’s terms, “Great Bodily Injury” is an injury that is more than a moderate or minor injury. It should be noted, that if the Prosecution proves the use of one of the enumerated weapons, this element does not need to be proven. The reason for this is that the law assumes that the use of a deadly weapon clearly involves the risk of “Great Bodily Injury.” The next element the Prosecution must prove, willfulness, is generally easy for them to prove unless there are extenuating circumstances to your conduct.
What Does it Mean to Act “Willfully”?
There are two types of “intent” that a crime will require in order to maintain a conviction for the commission of that crime: general intent, and specific intent. The intents can be defined in general terms as such “general intent” means the actor intended to engage in the conduct they engaged in, while “specific intent” means the actor intended the outcome of their conduct. Assault is a general intent crime, and the requirement that the Defendant acted “willfully” indicates as much. It has been suggested that the correct definition of willfully would state that a person acts “willfully” when they do the act on purpose, they know what they are doing, and they intend to do that actvi. As mentioned above, this is generally easy for the Prosecutor to prove without extenuating circumstances surrounding your conduct. For example, if your conduct was not intended, or you did not know the nature of what you were doing, you would not be deemed to have acted willfully.
What Does the “Knowledge of Sufficient Fact” Element of Assault Mean?
Generally, the Defendant’s attorney brings in evidence that the Defendant was not unaware of critical facts, which if known, would have informed his decision to engage in the conduct. It is important to remember however, that the Prosecution must prove the guilt of the accused; this is a fundamental concept in our criminal justice systemvii. To put it plainly, if the Defendant was not aware of facts that would allow them to come to the conclusion that their conduct would naturally and probably result in physical force being applied to another person, they cannot be found guilty of assault if they engaged in conduct without any punishable intent. A common scenario where this element becomes relevant is where the Defendant did not know there were people around when they engaged in the underlying conduct.
Billy was throwing rocks into the lake to see how far he could throw. Unbeknownst to Billy, Vince was practicing scuba diving in the lake. As Vince surfaced, a rock flew by his head. If the Prosecutor brought Assault with a Deadly Weapon charges against Billy, he would have to prove that Billy knew, or should have known, that there might be someone in the lake. Billy’s attorney would then submit evidence that Billy did not know Vince was there, and thus could not be found guilty.
The final element of a simple assault is that the Defendant had the present ability to carry out the assault.
What Does it Mean to Have the “Present Ability” to Apply Force to Another Person?
There are three elements, which must be shown for a Defendant to be deemed to have present ability. First, the defendant must equip himself with the means to carry out a battery. Second, he must position himself in a location such that he can utilize those means. Third, he must be able to inflict injury on that occasionviii. The third element of “present ability” requires that the Defendant be capable of inflicting injury on a given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury. This element is vigorously argued in trials, and having competent counsel representing your interests will provide you with the best opportunity to negate the element itself, resulting in a verdict acquitting of the crime. The next portion of this article will identify the various ways a “simple assault” can become an “assault with a deadly weapon.” Naturally, the object you are accused of using to commit this crime becomes relevant. While it is beyond the scope of this article to identify each and every item that can enhance the crime of assault, a brief definition is necessary for the reader to understand this crime.
What is a Deadly Weapon Other than a Firearm?
The Prosecution can argue that virtually any object, utilized in the proper manner, can be deemed a deadly weapon other than a firearm. The definition of a deadly weapon other than a firearm is any object, instrument, or weapon which is inherently deadly OR an item that could be used to cause great bodily injury or death. Ultimately, most cases will turn on how the object was used. Having an attorney representing you will greatly increase your chances of convincing a jury that the object you used was not used in the requisite manner.
What is a Firearm?
A firearm is an object, which is designed to be a weapon. Further, in order to be considered a firearm, the object must expel a projectile, through a barrel, by the force of an explosion or other combustion technique. These requirements render certain items, which look like firearms, to be excluded from this definition.
What is a Semi-Automatic Weapon?
A semi-automatic weapon is a weapon that removes an emptied cartridge, and replaces it with a new cartridge every time the trigger is pulled.
What is a Machine Gun?
A machine gun is any weapon that is designed to shoot, shoots, or can easily be fixed to shoot, more than one bullet, automatically, by pulling the trigger and without having to reload.
The type of weapon used in the commission of the assault will have a direct impact on the penalties you might face. Further, depending on who the victim is, you could also face significantly more severe penalties.
I Have Been Convicted of Assault with a Deadly Weapon, What Penalties Could I Face?
As mentioned above, the type of weapon used, and the identity of the victim will determine the penalties you might face if convicted of violating §245. As long as the victim is not a specially designated person, and the weapon used is not a machine gun, a violation of §245 is known as a “wobbler offense.” This means the Prosecution can bring the charges against you as either a misdemeanor, or a felony. This determination will be based on the circumstances surrounding the offense, and the effectiveness of the Defendant’s attorney in advocating for a lesser charge.
If you are convicted of a misdemeanor assault with a deadly weapon not involving a firearm, you will face up to one (1) year of incarceration in county jail and/or a fine of up to ten-thousand ($10,000) dollars.
If you are convicted of a felony assault with a deadly weapon not involving a firearm, you will face a range of two (2), three (3), or four (4) years of incarceration in state prison and/or a fine of up to ten-thousand ($10,000) dollars.
If you are convicted of a misdemeanor assault with a deadly weapon involving a firearm, you will face up to one (1) year of incarceration in county jail and/or a fine of up to ten-thousand ($10,000) dollars.
If you are convicted of a felony assault with a deadly weapon involving a firearm, you will face a range of two (2), three (3), or four (4) years of incarceration in state prison and/or a fine of up to ten-thousand ($10,000) dollars.
If you are convicted of a felony assault with a deadly weapon involving a machine gun, you will face incarceration for a period of four (4), eight (8), or twelve (12) years in state prison.
If you are convicted of a misdemeanor assault likely to result in great bodily injury you will face up to one (1) year of incarceration in county jail and/or a fine of up to ten-thousand ($10,000) dollars.
If you are convicted of a felony assault likely to result in great bodily injury you will face a range of two (2), three (3), or four (4) years of incarceration in state prison and/or a fine of up to ten-thousand ($10,000) dollars.
Penalties Associated With Specified Victims
If you violate §245, and the victim: (1) was a peace officer or a firefighter, who (2) was engaged in their official duties at the time of the crime; and (3) the you knew, or should have known those facts, you will face much harsher penalties.
If you are convicted of assault on a police officer or firefighter during the performance of their duties with a firearm you will face incarceration in state prison for a period of four (4), six (6), or eight (8) years.
If you are convicted of assault on a police officer or firefighter during the performance of their duties with a semi-automatic weapon you will face incarceration in state prison for a period of five (5), seven (7), or nine (9) years.
If you are convicted of assault on a police officer or firefighter during the performance of their duties with a machine gun you will face incarceration in state prison for a period of six (6), nine (9), or twelve (12) years.
It should also be noted that the weapon you used will be confiscated if the Court determines that you owned that firearm. There may also be significant restrictions, or an outright ban on your right to own firearms.
Penalties Associated with Assault with a Deadly Weapon on Transportation Personnel or Passengers
California Penal Code §245.2 makes it punishable by incarceration in state prison for a period of three (3), four (4), or five (5) years. It should be noted that in order to be found guilty under this statute, the Prosecutor must show that the Defendant knew, or should have known, that the personnel was engaged in their duties pursuant to their employment.
Penalties Associated with Assault with a Deadly Weapon on A Custodial Officer
California Penal Code §245.3 makes it punishable by incarceration in state prison for a period of three (3), four (4), or five (5) years. It should be noted that in order to be found guilty under this statute, the Prosecutor must show that the Defendant knew, or should have known, that the personnel was engaged in their duties pursuant to their employment.
What Can Los Angeles Criminal Lawyer Do for Me if I have Been Accused of Assault With a Deadly Weapon?
If you or a loved one has been accused of assault with a deadly weapon, it can be a frightening time for everyone involved. In addition to having a competent attorney crafting the best defense available for your case, having an attorney who is always available can provide peace of mind to the accused and their family. At Los Angeles Criminal Lawyer, we pride ourselves on our exceptional representation, and that we are available to our clients at all times of the day. We do not clock-in to work at 9 in the morning, and clock out at 5 at night; we stand by our promise to be available day and night. LACL has decades of combined experience and proven results.
If you have been arrested for assault with a deadly weapon, contact Los Angeles Criminal Attorney at 310-502-1314 for a FREE consultation. Our skilled attorneys will begin crafting a defense unique to your case, discuss a reduction of charges with the Prosecuting attorney, present the best defense available, and advocate for the lowest sentencing available in the event you are convicted.
i People v. White (2015) 241 Cal.App.4th 881 [194 Cal.Rptr.3d 323], reh'g denied (Nov. 30, 2015), review denied (Jan. 27, 2016) (The Court stated that the Prosecution must prove the Defendant “(1) willfully committed an act which by its nature would probably and directly result in injury to another and (2) was aware of facts that would lead a reasonable person to realize that a battery would directly, naturally, and probably result from their [Defendant’s] conduct.”)
ii The full name of this statute is “Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury.” As such, there are two alternative forms of the instructions.
iii Keep in mind that the act does not have to actually result in physical force to someone else, the mere possibility is sufficient for the crime of assault.
iv David, however, probably has satisfied the element of assault.
v Billy likely would not be on the hook for assault on David, because the physical force being applied to him was not probable either, it was only because of David’s own independent conduct that the risk manifested and occurred.
vi California Crim. Jury Instr. Companion Handbook § 5:1, California Crim. Jury Instr. Companion Handbook § 5:1
vii Technically speaking, the Defense attorney doesn’t have to say a single thing throughout trial. If the Prosecutor has not proven their case beyond a reasonable doubt, the Defendant cannot be convicted. It would be an unwise strategy to take, but it is technically appropriate.
viii People v. Chance (2008) 44 Cal.4th 1164, 1172 [81 Cal.Rptr.3d 723, 728, 189 P.3d 971, 976]