Assault is defined as placing an individual in fear of an imminent battery. Battery is the unlawful use of force on another individual that causes an offensive or unwanted touching or an injury. An individual does not have to actually touch another individual to commit assault. An individual must only act in such a way or speak in such a way to cause the other to believe they will be in imminent danger of harm.
An injury does not necessarily have to occur in order for an assault to be charged. The fear of the possibility of an injury is enough to be considered assault.
California defines assault as an unlawful attempt to commit a violent injury to someone. The individual committing assault acts in a manner that could cause a battery to occur to another.
California also has a more specific charge of assault with a deadly weapon. Assault with a deadly weapon is also known as aggravated assault. Aggravated assault occurs when an individual engages in a physical act that causes serious bodily harm. This act is done with a dangerous weapon such as a knife or a gun.
Similar to assault, assault with a deadly weapon can occur without actual bodily injury. It must only include the fear of bodily harm and the use or intention to use a deadly weapon.
What is a Deadly Weapon?
A deadly weapon is a term used to describe any object or firearm that is used with the intent to cause death or serious injury to another individual. The term can be more broad than expected. Individuals have been found guilty of assault with a deadly weapon while they:
- Attacked using a bat or athletic gear;
- Wielded a knife while intending to injure;
- Aimed a gun at another’s head and threatened to pull the trigger;
- Used a vehicle to purposely hit another driver or pedestrian; or
- Rushed after an individual with an ax.
Other weapons that may be considered deadly weapons include broken bottles, power tools, gardening tools, vehicles, blunt objects and any other item that can cause great bodily injury or death. The law is broad so that there will not be loopholes regarding what constitutes a deadly weapon.
In most cases, the court will examine how the object was used during this commission of the crime. This will determine whether or not the object is considered deadly. If the object was used with the intent to harm, it is more likely to be considered a deadly weapon.
What Does Assault with a Deadly Weapon Mean in Criminal Context?
In order to be convicted of assault with a deadly weapon, the prosecution must prove a defendant:
- Had performed an act that would result in force to another person;
- Had performed that act with a deadly weapon or that act could result in great bodily injury;
- Had performed the act on purpose;
- Had knowledge of facts that would lead a reasonable person to believe the act performed would result in injury to another; and
- Had presented the ability to perform the act on an individual.
In a criminal case, the parties to the action are the prosecution, or state, and the victim. The perpetrator is subject to a jail sentence, fines and probation as discussed above. Any monies paid go directly to the government, not to the victim.
What Does Assault with a Deadly Weapon Mean in Civil Context?
In addition to criminal charges, assault may also be claimed in a civil lawsuit. The elements of proof for assault are similar in criminal and civil cases. They both require that the accused created a reasonable apprehension of harm in the victim.
The main difference between civil and criminal assault is the remedies. A civil lawsuit is a private lawsuit between the victim and the perpetrator. It usually results in monetary damages awards for the victim.
In a civil lawsuit, it is required that the perpetrator, or defendant, either mean to cause the plaintiff apprehension or that the perpetrator should have known that their actions would cause the plaintiff apprehension. This is different from the criminal law requiring the perpetrator to intend to commit battery or physical injury to the victim.
Is Assault with a Deadly Weapon a Felony in California?
Assault with a deadly weapon in California is considered a wobbler crime. This means it can be charged as a misdemeanor or a felony. It may also be charged differently if the weapon involved is a firearm.
What are the Legal Consequences for Assault with a Deadly Weapon?
The legal consequences for an assault with a deadly weapon charge vary depending on the circumstances of the case. If the weapon involved in the crime is not a firearm, the assault can be charged as a misdemeanor or a felony.
Punishment for a misdemeanor conviction includes up to 1 year in jail, up to a $1,000.00 fine and/or probation. Punishment for a felony conviction includes 2 to 4 years in prison, a fine up to $10,000.00 and/or probation.
If the weapon used in the commission of the assault was a firearm, the charge will depend on the type of firearm. If the firearm was an ordinary firearm, the crime is still a wobbler and the accused will face punishment as discussed above.
However, if the weapon used is a semiautomatic firearm, the charge is automatically a felony. A felony conviction can result in 3 to 9 years in prison. The punishment can increase up to 12 years for the more dangerous and/or deadly firearms.
Are There Any Defenses to Assault with a Deadly Weapon Charges?
Yes, there may be defenses to an assault with a deadly weapon charge. These defenses may include:
- The individual acted in self-defense of a third party;
- The victim was mistaken or misinterpreted the accused’s actions;
- Only words were used between the parties and there was no object; and/or
- The accused did not intend to harm the individual.
An assault with a deadly weapon lawyer can review a case and determine if any defenses apply.
There may also be defenses available in a civil assault lawsuit. These include:
- Self-defense or defense of a third party;
- The accused had a right to commit assault, such as when a law enforcement officer attempts to arrest someone;
- The individual consented to be in a position to be assaulted; and/or
- Any of the required elements of assault are not proven.
Can Assault with a Deadly Weapon Charges Be Dropped?
It may be possible to have assault with a deadly weapons charges dropped. One way is if the elements of the case are not proven.
Should I Consult a Lawyer Regarding my Assault with a Deadly Weapon Charge?
Yes, if you have been charged with assault with a deadly weapon, it is imperative you consult with a California criminal lawyer. These charges are extremely serious and may have serious and life-long consequences. An experienced criminal lawyer can evaluate the facts of your case and ensure your rights are protected. A criminal lawyer can determine what if any defenses are available in your case as well as represent you during any court proceedings.