Assault with a deadly weapon is a serious charge that has the potential to upend your life. The sad truth is plenty of those who are charged with assault with a deadly weapon are innocent. Those who desire to be viewed as victims really will lie to the police about allegedly being assaulted with a deadly weapon or another form of force. The bottom line is there are two sides to every story. Our legal team is here to listen to your side, help clear your assault with a deadly weapon charge and provide an invaluable peace of mind.
Assault with a Deadly Weapon in the State of California
Section 245(a)(1) of California's Penal Code details the assault with a deadly weapon defense. This offense is defined as the intentional use of force combined with the ability to execute the threat of harm with a weapon or a force that can inflict a considerable physical injury or death to another person. Let's break this definition down a bit further. The alleged offender's action must be intentional or willful, meaning it was made on purpose. The attacker must also have the ability to cause harm at that moment in time. This means he or she does not have necessarily have to intend to use force against an individual. Rather, the attacker merely needs to be aware that the ability to use force under the current circumstances is likely to induce harm to another individual.
In the context of assault with a deadly weapon, “application of force” means touching another individual in an offensive or harmful manner. Such touching can be indirect by initiating contact with another person or an object. The term “another person” is a reference to more than the person's skin or other organs. This term refers to the individual's body as well as his or her clothing and anything attached to them. Deadly weapons are weapons, objects or instruments that are inherently lethal or have the potential to be used in a manner that can cause death or considerable injury to another person.
The Issue of Self-Defense in the Context of Assault with a Deadly Weapon
Opposing counsel is tasked with proving the defendant's actions were not in self-defense. Proving one's actions were not in self-defense is easier said than done. Meet with our legal team and we will review the nuances of your case to determine if it can be proven another person in your unique situation would or would not have acted in self-defense.
Additional Elements of Proof Necessary to Prove Guilt of Assault with a Deadly Weapon
In order to be found guilty of assault with a deadly weapon, the prosecution must prove the defendant had knowledge of information that has the potential to cause a reasonable individual to believe what he or she was doing would cause force to be used against the party allegedly harmed. Furthermore, the defendant must have purposely and directly committed the act that would likely cause the application of force to the other individual.
Punishment for Assault with a Deadly Weapon
Those convicted of assault with a deadly weapon in the state of California are guilty of a serious form of aggravated assault. An individual who commits such an assault on another individual with any type of instrument or deadly weapon aside from a firearm will be sent to state prison for upwards of four years. Some of those found guilty of this crime spend two or three years in jail. The idiosyncrasies of each unique case dictate the length of imprisonment. It is also possible for the guilty party to be sent to county jail for a period upwards of a year in length.
Furthermore, those found guilty of assault with a deadly weapon can be fined up to $10,000. In some cases, guilty parties are sent to state or county jail and also required to pay a fine. If the weapon used to assault the alleged victim was a rifle or handgun, it is possible for the sentence to be extended to upwards of nine years in state prison. The penalty jumps to 12 years in state prison if the weapon used to perform the assault was an assault weapon or a machine gun.
As explained below, it is important to highlight the differences between assault with a deadly weapon charged as a misdemeanor and assault with a deadly weapon charged as a felony. An individual found guilty of assault with a deadly weapon classified as a misdemeanor will face comparably light penalties. The misdemeanor version of this offense carries a penalty of a year in county jail, a fine upwards of $1,000, confiscation of his or her weapon, informal probation and numerous other possible penalties. Some of those found guilty of this misdemeanor are forced to pay restitution to the harmed party, perform community service and/or complete an anger management class. The weapon used to perform the assault will be destroyed as the court considers it to be a nuisance.
Those found guilty of felonious assault with a deadly weapon will receive comparably harsh penalties. This felony carries the fore mentioned fine upwards of $10,000, a sentencing of up to four years in state prison, formal probation, weapon confiscation and restitution paid to the victim. Furthermore, the offender will receive a felony strike under the Golden State's Three Strikes law. A Californian who tallies up three strikes on his or her criminal record can be sentenced to life in state prison. Unfortunately, there is no chance of parole following a life sentence to state prison stemming from a third strike.
Assault with a Deadly Weapon: Misdemeanor or Felony?
The state of California does not categorize assault with a deadly weapon as strictly a felony or misdemeanor. The charges can be filed as one or the other. The state of California considers the use of a deadly weapon to assault someone or the use of force to inflict bodily injury to be a wobbler offense. A wobbler offense is a crime that is charged as a felony or as a misdemeanor. The severity of the assault ultimately determines whether it is considered a felony or misdemeanor. The prosecution decides whether to charge the defendant with a felony or misdemeanor based on the array of mitigating factors involved in the case as well as the aggravating factors involved with assaulting someone with a deadly weapon.
The type of instrument or weapon used to perform the assault is an aggravating factor. The extent of the supposed victim's injury is also an important aggravating factor. The individual's status as a protected person or non-protected person also matters. For example, if the supposedly harmed party is a police officer, firefighter or other agent of the law working at the time of the assault, the penalty will be much more severe. Those found guilty of assaulting such a protected party with a deadly weapon are eligible for upwards of a dozen years in state prison.
How an Attorney can Help You beat Your Assault with Deadly Weapon Charge
The aggravating factors detailed above dictate the penalties one could face if convicted of assaulting someone with a deadly weapon. This is precisely why you should hire an assault with deadly weapon criminal defense attorney as soon as you are charged. Your lawyer will review your case in-depth and detail all of the mitigating factors. As an example, it is possible there was no weapon involved in the alleged assault. It is also possible you do not have the physical ability to harm another person in the manner alleged by opposing counsel.
In some cases, the individual accused of assault with a deadly weapon is actually the victim. These are just some of the mitigating factors a defense attorney will highlight in an attempt to negotiate a wobbler assault in order to decrease the charge from a felony to a misdemeanor. You need a savvy, hardworking assault with a deadly weapon criminal defense attorney to prevent an extended prison sentence. Though hiring a criminal defense attorney does not guarantee the charge will be tossed, this assistance will help reduce the penalty in the event you are convicted.
A Deeper Look at the Issue of Bodily Injury
Section 12022.7 of California's Penal Code explains great bodily injury is a significant physical injury. If the injury is minor or even moderate, it does not qualify as great bodily injury. Section 243(d) of the state's Penal Code explains an injury that does not qualify as a great bodily injury can qualify as a serious bodily injury. This degree of injury is a serious impairment of one's physical condition. A great bodily injury charge is applicable if the harmed party suffers anything worse than serious impairment. It is important to distinguish between these two forms of injuries as they are essential to the prosecution's case to prove your guilt and inflict the harshest possible penalty.
A conviction under 245(a)(1) is much more severe than conviction under PC 243(d) as significant bodily injury is not as strongly related as great bodily injury. This is a critically important distinction as courts typically do not sentence the guilty party to jail if the injury is not considered a great bodily injury. An example of a great bodily injury is the loss of one's limb. Even reduced impairment following the assault with a deadly weapon qualifies as a great bodily injury. Alternatively, examples of a serious bodily injury include disfigurement, the loss of consciousness and/or a temporary impairment.
Common Defense Strategies Against Assault with a Deadly Weapon
Those charged with assault with a deadly weapon should not panic. There are numerous defenses an attorney can use to defend you, clear your name and return your life to normalcy. Your first course of action should be reaching out to our legal team for an initial consultation. It is possible one or several of the defense strategies detailed below will prove applicable to your unique case.
In some cases, attorneys successfully argue the supposed victim consented to the alleged aggressor's conduct. It is also possible to argue the action taken that spurred the assault was unintentional or involuntary. In other cases, a self-defense strategy proves successful. If your attorney can prove you were acting to defend yourself or defend another person, you might be found innocent or the charges might be reduced. It is also possible to build a defense around false facts. If your attorney can prove the allegations against you are inaccurate or false, you will be found innocent.
The factual impossibility defense is available for those who do not have the physical capacity to commit the alleged assault. Additional defense strategies include arguing no weapon of force was available to cause the injury and the argument that the harm induced to the supposed victim was an accident in which blame cannot be placed on a specific person.
A Closer Look at the Self-defense Argument
The self-defense argument is one of the more popular rebuttals to assault with a deadly weapon charges. However, this defense will only prove successful if it can be proven you had a reasonable belief you or the other individual being protected were likely to be physically harmed. In other words, you do not have to be the individual who is directly under duress. If your attorney can prove you acted to defend another person and the harm was imminent as opposed to a potential threat of harm in the future, the charges will be dropped or reduced. However, your attorney must be able to prove your actions were justified. If you used excessive force that is disproportionate to the threat you were combating, you still might face one or several penalties.
It is important to note the threat of harm does not have to be present in order for the self-defense strategy to prove successful. If you felt the threat of harm was present and that it threatened your well-being or that of others in your vicinity, your actions might be justified. Those charged with assault with a deadly weapon should also know the law does not mandate that you retreat. You are allowed to stand your ground and defend yourself and others as detailed above.
Finding the Best Assault with Deadly Weapon Lawyer Near Me
If you have been charged with assault with a deadly weapon, you should know legal help is a phone call away. Our attorneys are here to listen to your side of the story, build the best possible defense strategy and fiercely advocate on your behalf. Contact our Orange County Criminal Lawyer at 714-831-1858 to schedule a consultation.