In California, there is an aggravated assault known as “Assault with a Lethal weapon.” This is known as a “wobbler offense”, which means the Prosecution can charge the crime is either a misdemeanor, or a felony; this is dependent on the facts surrounding your case. It is critical to have competent representation from the outset, as a skilled attorney can meet with the Prosecution and effectively advocate for a lesser charge against you. The attorneys at Orange County Criminal Attorney have extensive experience dealing with the Prosecution in Orange County, and may have a better chance of reducing the charge against you.
The relevant code for Assault with a Lethal weapon is found in California Penal Code §245(a). To be convicted of Assault with a Lethal weapon, the Prosecution must prove five (5) elements beyond a reasonable doubt:
- The conduct, which forms the basis of the Assault with a Lethal weapon, must have occurred in a situation that would result in physical force being applied to another person.
- The conduct which forms the basis of Assault with a Lethal weapon must have involved a lethal weapon, or would likely result in “Serious Bodily Injury.”
- The conduct, which forms the basis of Assault with a Lethal weapon, must have been made willfully.
- The Defendant was aware that the conduct, which forms the basis of the Assault with a Lethal weapon, would result in offensive or harmful contact with another person.
- The lethal weapon involved in the conduct would have caused harm to another person.
To better understand the charge of Assault with a Lethal weapon, we will explain the elements further below
What Is The Use Of Physical Force?
Since this is an aggravated form of assault, the term “use of force” is the same as a simple assault. So long as there is an attempt to cause a harmful or offensive touching, it may be considered “use of force.” A key point is it doesn’t matter if you intended to cause the other person injury, you could still be charged with Assault with a Lethal weapon.
Danny, a teenage boy, got into a fight with Vincent in a parking lot. Danny grabbed a rock and threw it at Vincent and missed. Danny didn’t intend to hurt Vincent, only intimidate him. Danny may still be charged with Assault with a Lethal weapon, notwithstanding the fact that he did not intend to actually hit Vincent. The key question the jury will have to find, in order to sustain a guilty verdict, is whether a rock is a lethal weapon.
What Constitutes A Lethal Weapon?
According to California law, a lethal weapon is something that has the capacity, and the probability, to cause serious injury to another person. Common sense tells us that items such as guns, and other inherently dangerous objects are lethal weapons. It becomes more complicated with other items. A common question from our clients is, “what constitutes a lethal weapon aside from the obvious?”
The critical question, when determining if an item is a “lethal weapon” for purposes of Assault with a Lethal weapon, is whether the nature of the object or the way it is being used has a significant risk of causing serious bodily injury, or death. 1
Danny was in class, and threatened to stab Vincent with a pencil. To determine whether Danny had committed Assault with a Lethal weapon, the Court would first have to find that the pencil was hard, and sharp. California Courts have found that any hard, sharp, object used to threaten someone a lethal weapon.2
Courts look at a number of factors to determine whether an object is inherently deadly:
• The type of the weapon
• How the item is used
• Where on the body the injury is
• The severity of those injuries3
Using these factors, it has been clarified that items such as knives, guns, pencils, rocks, cars, unloaded guns, bottles, and even dogs are considered lethal weapons.
Ultimately, a lethal weapon is an instrument that could cause serious bodily injury to another person. In certain circumstances, even hands and feet could be considered a lethal weapon.
What Constitutes Serious Bodily Injury?
Serious Bodily Injury is defined as an injury that rises above the degree of a minor harm. This is clearly a subjective, and vague, definition, but jurors tend to understand and apply it properly.
What Constitutes Willful Conduct
Willful conduct is discussed more fully in the simple assault section of the website. To paraphrase, willful conduct is when an individual intends the act that forms the basis of the assault charge. This is in contrast to an involuntary action. A person does not need to intend the result, only the action itself.
Dave and Victor get into a fight over a parking space outside a movie theatre. After Victor parked and got out of his car, Dave revved the engine and drove towards Victor, slamming the brakes before hitting Victor. Dave had no intention to actually hit Victor with his car. Dave is still probably guilty of Assault with a Lethal weapon, because a car is a lethal weapon, and Dave intended the act of pressing the gas pedal.
What Does Awareness Mean?
Another common element with simple assault is awareness. To prove awareness, the Prosecution need only show that you knew, or should have known, that your conduct could lead to the application of force.
David and Vivian are having a heated lover’s quarrel. David pulls out a gun, and threatens Vivian. David never intended to fire his gun. David will likely be found to have satisfied the awareness requirement because everyone knows that using a gun could result in the application of force.
What Are The Penalties For Assault With A Lethal Weapon?
As mentioned above, Assault with a Lethal weapon is considered a “wobbler offense” in California. If the Prosecution charges you with a misdemeanor Assault with a Lethal weapon, you may be imprisoned for up to a year, and fined up to $1,000. If the Prosecution charges you with a felony Assault with a Lethal weapon, you could face two (2), three (3), or four (4) years in jail depending on the circumstances surrounding the assault. You may also be fined up to $10,000.
Prosecutors look to a number of factors when deciding how to charge an Assault with a Lethal weapon case:
a. What weapon was used
b. Whether there was Serious Bodily Injury
c. The degree of the injury
d. The identity of the victim
Having a competent attorney at this phase can result in lesser charges, or lesser sentencing. The attorneys at Orange County Criminal Attorney have ample experience defending clients in Orange County, and understand what the Prosecution, and Judge, find most important in making these determinations.
What Is The Difference Between Assault With A Lethal Weapon Using A Gun, And Without Using A Gun?
In California, and many other states, the charges become significantly more severe when a gun is involved in the crime. Simply put, if you are convicted of using a gun during the commission of Assault with a Lethal weapon, you will face an additional 6 months or more in jail. If the crime was committed with a semi-automatic weapon, the crime is automatically a felony and increases the length of imprisonment by three (3) to nine (9) years.
Further, if you used an assault weapon, machine gun, or 50 BMG rife in the commission of this crime, it is automatically charged as a felony, and you will face an additional four (4) to twelve (12) years in jail.
What Is The Difference Between Assault With A Lethal Weapon On Government Officer, And On Someone Who Is Not A Government Officer?
Pursuant to California law, if the victim is law enforcement, or a firefighter, performing their job at the time the crime is committed, the penalty becomes substantially more severe. This aggravating factor is only triggered if you knew, or should have known, that the victim was law enforcement or a firefighter, in the scope of their job. This is always charged as a felony and California. There is a distinction between whether or not a gun was used in the Assault with a Lethal weapon on law enforcement or a firefighter. If a gun was not used, the penalty ranges from three (3) to five (5) years depending on the circumstances surrounding the crime. If a gun was used however, the nature of the firearm will dictate the penalty. If an ordinary weapon was used, the penalty will range from four (4) to eight (8) years in jail. If the assault was committed with a semi-automatic weapon, the penalty will range from five (5) to (9) years. If the assault was committed with a 50 BMG rifle, a machine gun, or assault weapon, the penalty will range from six (6) to twelve (12) years. Naturally, a competent OCCA attorney will be most effective means of receiving the lowest possible penalty.
California Three Strikes Law And Assault With A Lethal Weapon
California has a rule known as the “three strikes law.” Under this rule, if a Defendant is convicted of a violent felony, they receive a “strike.” If the Defendant is subsequently convicted of a second violent felony, the judge has the discretion to sentence the Defendant up to twice the original prison time. If a Defendant receives a conviction for a third violent felony, they could face up to 25 years in state prison. To determine whether Assault with a Lethal weapon constitutes a “strike”, the Prosecution must prove three (3) elements beyond a reasonable doubt:
- You actually caused serious bodily injury to the victim; and
- The victim was law enforcement or a firefighter; and
- You used a firearm to commit the crime
What Legal Defenses Can My OCCA Attorney Pursue On An Assault With A Lethal Weapon Charge?
In California, an individual who is facing charges of Assault with a Lethal weapon could face extremely harsh consequences depending on the facts surrounding their case. This is especially true if the assault involved a gun, or specific types of people in the scope of their duty. However, Orange County Criminal Attorney can provide the experience, support, and advocacy necessary to minimize, or even avoid, punishment. OCCA attorneys have the experience, skill, and desire to provide the best defense possible to our clients. A conviction for assault with a lethal weapon can be either a misdemeanor, or a felony, under California law. Regardless of which type you are charged with, the conviction will remain on your criminal background.
Potential employers may see this conviction during the course of a background check, and this could have a negative impact on your job prospects. Prior convictions also provide the basis for sentence enhancements in subsequent cases. As such, it is critical that you retain competent counsel to advocate for your rights, freedom, and future. If you have been arrested for Assault with a Lethal weapon, you should immediately contact an attorney for Orange County Criminal Attorney. We have the experience and knowledge necessary to provide you the best results possible.
A list of defenses an attorney from OCCA could raise, and pursue, in an effort to obtain your freedom include, but are not limited to: (1) The Defendant did not use a lethal weapon or an object likely to cause serious bodily injury to another, (2) The Defendant was acting in self-defense, or the defense of someone else, (3) False accusation.