~ Assault with a deadly weapon ~

Unlike California Penal Code § 240, which is known simply as assault, when the alleged assault involves some type of "deadly" weapon or the assault involves the use of force that can be characterized as likely to cause great bodily injury, the crime will be charged under Penal Code § 245 (a)(1). An assault charged under this section is often referred to as ADW (Assault with a Deadly Weapon) or Aggravated Assault and the weapon can be something as unsophisticated as a shoe (when used to kick someone) or something as sophisticated as a machinegun.

To obtain a conviction for simple assault, the Prosecution just has to prove that a person made some unlawful attempt to inflict a violent injury on another person. To elevate that charge to Aggravated Assault (ADW), the Prosecuton must also prove that the assault was committed using a deadly weapon or that the assault was carried out by means of force likely to inflict great bodily injury on another person. As such, there are two elements to the crime of ADW:

1) That an assault occurred on a person; and

2) That the assault was committed using a deadly weapon or with force likely to result in great bodily injury.

What is, or is not a "deadly weapon" often surprises people. For example, hands and feet are typically not considered deadly weapons for the purposes of an alleged ADW, however, there are circumstances where you can still be charged with ADW for inflicting "great bodily injury" simply by the use of your own body. Therefore, injuries caused by kicking, scratching, choking and biting may be enough to compel the Prosecutor to charge a crime as Aggravated Assault. Sadly, even trivial injuries have occassionally been used by the District Attorney to allege "great bodily injury".

More commonly, however, an actual weapon is involved, such as a gun, a knife, a pipe, a sharp object and to a lesser degree, objects that are thrown or dropped. For example, if you drop a water baloon (or some other innocuous object) from a building that hits someone, that object may be considered a "deadly weapon" because of the way in which it was used. Likewise, spraying someone with pepper spray, hitting someone with a bottle in a bar fight or even using common objects like a pen or pencil can qualify as deadly weapons. In practice, it is not uncommon for the District Attorney to allege that far reaching objects are deadly weapons, which is exactly why you need the assistance of a trained Criminal Defense Attorney like Don Werno on your side.

What exactly is "Great Bodily Injury"? Penal Code § 12022.7 provides that answer to some degree. Specifically, § 12022.7 (f) states, in part that, great bodily injury "means a significant or substantial physical injury". As you can tell, the relatively vague definition set forth in § 12022.7 provides the District Attorney with a great deal of discretion when deciding what injuries they will allege meet the criteria. Unfortunately, this often leads to charges that are questionable under even the most liberal interpretation. Additionally, this same code section provides for sentencing enhancements when the alleged victim is over the age of 70, is a child five (5) years old or less, and when the injury occurs during the commission of domestic violence. Because of the extremely vague definition of "great bodily injury" and the considerable discretion that the Penal Code affords the Prosecution in deciding what injuries they believe meet the criteria, it is extremely important that you have an experienced attorney to protect your rights.

Aggravated Assault is a "wobbler," meaning that the Prosecutor has the discretion to file the charge as either a felony or a misdemeanor. The decision to charge the offence one way or another is usually made based upon the underlying circumstances of the alleged crime. Some of the factors that the District Attorney may take into consideration are the specific injuries, if any that occurred during the alleged assault, the type of weapon used in the commission of the alleged crime and whether the person who was allegedly assaulted was a police officer, fireman or other "protected person" as set forth in Penal Code § 245 (c) itself. Because of the significant potential enhancements set forth in both Penal Code §§ 245 and 12022.7, which range from three (3) to six (6) years, it is important that you have experienced and agressive represenation. Additionally, a conviction under Penal Code § 245 is also a "Strike" under the Three Strikes Law, thus potentially exposing you to an ultimate sentence of 25 years to life if you are convicted of the Third Strike.

There are several solid defenses to an Aggravated Assault (ADW) charge. For example, if the injuries do not rise to the level of "significant or substantial" as contemplated by the California Legislature when the code was enacted. Self-defense is, of course another defense as is the lawful defense of another person. Using an unloaded gun during the "assault" can also be used as a defense as can numerous other circumstances, which is why using an experienced attorney will be invaluable.

A conviction for violating Penal Code § 245 depends on the ultimate circumstances of the case, including any "enhancements". A misdemeanor conviction can include imprisionment in the County Jail for up to one year, a fine of up to $10,000, restitution to the victim, and informal probation for up to five (5) years. A felony conviction can include imprisionment in the State Prision for two (2) to four (4) years a "strike" on your record and a fine that does not exceed $10,000.

Because of the complexities and potential penalities involved in an Aggravated Assault (ADW) allegation, you need the help of an experienced and aggressive Criminal Defense attorney. The Law Offices of Werno & Associates is here to help. Call us today at (714) 542-4466 and remember, consultations are confidential and always free.

To view the list of crimes by code section (Statute), please click here.

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