California treats the crime of assault severely, more so when you face assault using a deadly weapon. When you face assault using a deadly object or weapon, you risk facing long imprisonment and payment of high fines. Whether you face these charges, you need to hire an experienced criminal defense attorney who will explain the procedure and ensure you have the best legal representation.
Under PC 245(a)(1), you may face an assault by using a deadly object or weapon even in circumstances where you never used a gun. In this article, our lawyers at Chula Vista Criminal Attorney will provide a detailed explanation of assault using a deadly object or weapon, which aims at giving you a better understanding of the offense.
Legal Definition of Assault Using A Deadly Weapon Under California PC 245(a)(1)
Under California PC 245(a)(1), the law defines assault using a deadly object or weapon as an unlawful attempt at injuring or harming someone by using a fatal object or weapon.
In this case, a deadly object or weapon refers to any item you can use as an object to inflict severe bodily injury or even death. A deadly object or weapon is an item that you can use to harm someone by hitting, pushing, scratching, punching, biting, or even choking.
Examples of a deadly weapon include objects capable of inflicting severe bodily injury or any item you can use to cause someone severe harm or kill. Some of these items include and are not limited to:
A pencil to stab someone
A broken bottle,
When you command your dog to attack someone
An unloaded weapon if you hit someone with it.
Examples Of Assault Using A Deadly Weapon
Chasing someone with a machete.
Swinging the butt of a gun at the other person’s head.
Ordering your dog to bite someone.
Trying to hit another person with a broken bottle.
You are trying to run over someone with your car, whether on foot or driving.
If you are pointing a firearm at someone, shoot them.
Elements Of Assault Using A Deadly Object or Weapon
When you face an assault using a deadly object or weapon charge, the prosecution has the duty of proving the following elements beyond a reasonable doubt to hold in court.
You assaulted the other person with a deadly object or weapon other than a machine gun, a firearm, a semiautomatic firearm,
You acted willfully
You applied force that would likely result in severe bodily injury or even death.
Can use force that would result in severe bodily injury,
The act was not in self-defense or the defense of another person,
You acted knowing some facts which a reasonable person would realize could lead to the use of force resulting in severe bodily injury or death.
You were in a position to apply a force that could lead to serious bodily injury when you assaulted the other person, or you had the present ability to assault someone else using a deadly object or weapon.
You should know that the alleged victim doesn't require to be injured for you to face an assault with a deadly weapon charge. The law focuses on the fact that your actions could result in the use of force. The application of force doesn't necessarily matter. When using force, you can indirectly apply it by causing another person or object to touch someone else.
For example, Mark, a surgeon by profession, meets with Patrick, his ex-girlfriend's husband, in the parking lot, and an argument starts. Patrick insults Mark, and Mark decides to punch him but doesn't want to harm his hands since they are his means of earning. He reaches into his car's console and produces a pistol which he shoves into Patrick's face threatening to shoot him if he ever insults him again. Patrick leaves the premises but flags down a police officer and accuses Mark of assaulting him with a deadly weapon.
Mark used a pistol to threaten Patrick, and he knew shoving the gun in Patrick’s face was using force, which the prosecution will assume to be so since they were arguing at the time of the incident. In this case, Mark acted willfully since he weighed his options before going for the pistol. Mark had a gun and pulled it from his car’s console, showing his present ability, and was not using it in self-defense. But since Mark used a pistol which the law does not cover under PC 245(a)(1), he can not face assault with deadly weapon charges.
Terms Used In Assault With A Deadly Weapon
Severe Bodily Injury
Severe bodily injury is when the victim suffers severe or substantial physical harm. This harm is more significant than a minor injury. Severe bodily injuries include and are not limited to:
Application of Force
The law under PC 245 (a) defines the application of force as any act which is offensive or harmful. When applying force, you may face assault with a deadly object or weapon if you touch someone else slightly. What matters is the fact that they view your touching as offensive.
Sometimes, you can face assault with deadly weapons even when you don't touch the victim directly. For instance, if you cause an object to connect to the victim, the law views you to have touched the person. The law, in this case, considers the fact that your actions could probably result in the application of force on someone else.
The law defines a willful action as one where you intentionally, willingly, or do something on purpose. You would have acted willfully even if you were not planning to break the law or harm someone.
Penalties For ADW
Under California PC 245(a)(1), assault using a deadly weapon is a wobbler offense when you did not use a firearm while committing the crime. A wobbler offense means that the prosecution can charge it as a felony or misdemeanor offense, depending on the case's circumstances.
If the prosecution charges you with a misdemeanor, for ADW where you used an object which isn't a gun, then your sentencing will include:
one year of County jail imprisonment
Five years of misdemeanor probation.
Payment of up to $1,000 in fines
If the prosecution charges you with a felony for assault using a deadly weapon when the weapon wasn't a gun, you will face the following sentencing:
Imprisonment ranges from two to four years in state prison.
Formal or felony probation.
Earn a strike against your record.
Payment of fines not exceeding $10,000.
Penalties For ADW When you use a Normal Gun
When the prosecution charges you for ADW using an ordinary gun, you will face a wobbler charge, depending on your offense's circumstances.
Misdemeanor penalties For ADW with A Normal Gun
Minimum imprisonment of180 days but not exceeding one year in county jail.
Misdemeanor probation that does not exceed five years.
Payment of up to $1,000 in fines.
Both payment of fines and imprisonment.
Penalties For A Felony Using A Normal Gun
You will face a felony when you use a machine gun, a semiautomatic gun, a rifle, or an assault weapon. A conviction for felony charges will lead to:
Imprisonment in state prison ranges from four up to 12 years.
Earn a strike against your record under the 3 Strikes Law.
Payment of $10,000 in fines.
Assault Using A Deadly Object or Weapon On A Firefighter or Police Officer Penalties
You will face a felony charge when you assault a firefighter, police officer, or peace officer. The prosecution will prove that you knew or ought to have known that the officer was a firefighter or a peace officer. A conviction for this charge will lead to state prison imprisonment that does not exceed five years. If, however, you are charged with using a gun against a firefighter, police, or peace officer, then your sentence will go up to 12 years in state prison.
Can Assault Using A Deadly Object or Weapon Conviction Earn A Strike Against Your Record Under The Three Strike Law?
Earning a strike against your record will depend on:
The type of conviction you obtain; If you have a misdemeanor conviction, you will not earn a strike against your record. But for a felony conviction where you did not use a deadly weapon but applied force that could result in serious bodily injury, the alleged victim does not suffer severe physical harm. Your conviction will not earn a strike against your record.
If you face assault using a deadly weapon where though you did not use a deadly weapon, you applied force which could lead to severe bodily harm, and the other person sustained severe bodily injury. Then a conviction will earn a strike against your record.
If you use a deadly weapon, you will earn a strike against your record. Earning a strike against your history enhances your sentence. You should note that earning a third strike could result in a minimum of 25 years in state prison.
Impact of Assault With A Deadly Weapon Conviction On Your Immigration Status
An assault with a deadly object conviction will negatively affect your immigration status. If you are not a United States citizen, a conviction could have your immigration status marked as inadmissible or lead to your deportation.
Effects Of Assault With A Deadly Weapon conviction On Your Gun Rights
The law states that you can not own, possess, or sell a gun for ten years if convicted of misdemeanor charges. However, you will lose your gun right if the law convicts you of a felony offense. If you face felony charges and the court convicts you of the charges, you can never own, possess, or sell firearms and firearm accessories.
Assault With A Deadly Weapon Conviction Expungement
You can have your ADW conviction records expunged, but you will have to complete:
Your jail time
You can have your criminal defense attorney request the judge to award you an expungement on your records. Expungement means that your potential employers or landlords can not access your criminal records.
Best Defenses Against Assault Using A Deadly Weapon Charges
Since ADW charges can be a traumatic experience for you and your family, a conviction could alter your life irrevocably. You will realize that an ADW charge will have far-reaching repercussions. An ADW conviction could affect your life and the lifestyle of your loved one as well. With this in mind, it's essential to develop a defense strategy that will see your charges dropped or dismissed altogether. There are several defenses that your attorney can apply depending on the circumstances surrounding your case. They include:
You Did Not Act Willfully
The prosecution must prove that you acted willfully for an assault with a deadly weapon to hold in court. Therefore, you could prove to the court that you did not act intentionally. For instance, you could show the court that it was an accident and that you had no intention of harming the victim. You should not face these charges if the prosecution doesn’t prove that you willfully hurt the victim. For example, if you are driving and lose control of your car and hit someone on the road, you did not commit an ADW since you did not intend to beat the other person. You can use this defense as the injury resulted from an accident.
No use Of Deadly Weapon
Under the law, you will be guilty of assault with a deadly object when you use a deadly weapon or object. This means you can show the court that you did not use a fatal thing even if you committed the assault. You can show the court that the gun you used was not deadly, and this could help your case where the prosecution agreed to reduce your charge to that of simple assault.
Self-defense, or The Defense of Another Person
Self-defense or the defense of someone else comes into play when you act in self-defense, especially if you believe you are in danger. You can also use this defense to prove that you felt that applying force was vital in preventing the threat and that you applied force appropriately.
Not In A Position To Carry Out The Threat
For this defense to hold in court, your defense team will have to show the court that you were not in a position to carry out your throat when you acted. You will have to prove that you were not in a place to apply force on the victim, which could result in severe bodily injury using a deadly weapon. For example, if you threaten to shoot your partner using a gun in your pocket, you do not have a weapon. You can not face assault with deadly weapons in this instance as you could not carry out your threat.
Assault California PC 240
California defines assault as the unlawful attempt against another person where you carry out the act with the present ability to harm or injure that person. You will face assault charges when you act willfully and commit an act that could apply force against another person. You should note that for the crime of assault, you do not have to make actual physical contact with your victim. The law views assault charges as a misdemeanor with a conviction carrying a sentence of up to six months in county jail, paying $1,000 in fines, or both.
Battery California PC 242
Penal Code 242 defines battery as the unlawful application of force and violence against someone else. For a battery charge to hold in court, the prosecution must prove that actual physical contact with the victim occurred. The actual application of force is a requirement for battery charges. For example, if you take a bottle and swing it at another person and miss, you can face assault but not battery charges. However, if you hit that person with the bottle, you may face assault and battery charges.
California usually charges the battery as a misdemeanor offense, though it is a wobbler offense. The prosecution will charge you with a felony offense if the victim suffers significant bodily injury. For a misdemeanor conviction, you will face up to six months in county jail, payment of $2,000 in fines. However, if the prosecution charges you for a felony offense, you will serve imprisonment that ranges from two up to four years in state prison, payment of $10,000 in fines, or both.
Brandishing A Firearm or A Weapon
It is a crime to brandish a weapon or a firearm in the presence of another person without legal coverage. However, it is not unlawful to produce a gun in someone's presence for self-defense or another person's defense. Like assault with deadly weapons, this crime involves the presentation of a firearm or a deadly weapon. Brandishing a gun is a misdemeanor offense with a conviction leading to one-year imprisonment in county jail, payment of $1,000 in fines, or both.
It is important to note that the gun doesn’t necessarily have to be loaded for brandishing a firearm to hold in court. All that matters is that you used the weapon in a fight and held it in a threatening or rude manner.
Assault Leading ToSevere Bodily Injury PC 245(a)(4)
Under PC 245(A)(4), California defines assault leading to a severe bodily injury offense as the act where you assault someone else by applying force resulting in serious bodily injury. Assault by means likely to result in severe bodily injury is a wobbler offense. The prosecution can charge you with a felony or a misdemeanor offense, depending on your case's circumstances and your criminal record. A misdemeanor conviction will lead to one-year imprisonment in county jail, while a felony charge will lead to an imprisonment of two up to four years in state prison.
A misdemeanor conviction for this offense ensures that you lose your gun rights for ten years, while a felony conviction results in a lifetime gun rights loss.
Assaulting A Public Officer Penal Code 217.1
Under PC 217.1, you will face assaulting a public officer when you commit an assault directed at a public officer if you commit the offense in retaliation or hinder the public officer from performing their official duties. You will face these charges even if you do not use a deadly object while assaulting the public official.
Assaulting a public officer is a wobbler offense. The prosecution will charge it as either a felony or misdemeanor, depending on your criminal record and the circumstances surrounding the crime. A misdemeanor conviction will result in a one-year imprisonment in county jail, while a felony will lead to three years in county jail.
Throwing Dangerous Items At A Vehicle CVC 23110(b)
It is a crime to throw an object at a vehicle under CVC 23110(b) to harm another person or cause severe bodily injury. Some of the elements of this crime are that you maliciously throw an object intending to harm another person. An object can be a rock, metal, missile, brick, or anything that can seriously damage the other person, their vehicle, or the car's occupant.
A conviction for this offense will lead to imprisonment that goes up to three years in state prison, payment of $10,000 in fines, or both. You should note that for this charge to stick, the vehicle doesn’t have to be moving, and you also don’t have to possess the ability to strike the car. The prosecution has to prove that you intended to cause severe bodily injury, harm the vehicle, occupant when you projected the object, and act maliciously when you threw the thing at the motor vehicle.
Contact A Criminal Attorney Near Me
Facing assault with a deadly weapon is a serious charge which could negatively affect your life. You will need to have someone at your back who will walk with you through the entire process. It is essential to hire a lawyer with an exceptional track record to represent you when facing these charges. At Chula Vista Criminal Attorney, our lawyers understand the California justice system and are in a position to represent you. We know the prosecution's criteria to collect their evidence against you, and we will work hard to ensure you obtain the best outcome for your case. Feel free to contact us at 619-877-6894 and book your first appointment.