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California Penal Code Section 245(a)(1) - Assault with a Deadly Weapon

California Penal Code § [Section] 245(a)(1) – Assault With A Deadly Weapon

California Penal Code [CPC] §245(a)(1)Assault With A Deadly Weapon – Assault With A Deadly Weapon occurs whenever anyone assaults another person with a deadly weapon, or a weapon other than a firearm, or when anyone assaults another person using force likely to produce great bodily injury.

Penalties under CPC §245(a)(1) vary; the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of the case. This makes Assault With A Deadly Weapon a “wobbler” crime under California law.[1] If you're charged with the Misdemeanor form of §245(a)(1), you face up to one year in a county jail, a fine of up to $1,000, or both a fine and imprisonment, while the Felony form can result in a term of four years in state prison and a fine of up to $10,000 (or a combination of prison and a fine).

What Does California Penal Code §245(a)(1) [Assault With A Deadly Weapon] Prohibit?

In sum, to be guilty of Assault With A Deadly Weapon under CPC §245(a)(1), you must:

  • Assault someone with a deadly weapon other than a firearm; OR,
  • Use force likely resulting in great bodily injury; AND,
  • Act willfully; AND,
  • Have facts that would lead a reasonable person to realize the act would result in using force; AND,
  • Have the ability to use force likely to produce great bodily injury or to assault someone; AND,
  • Not act in self-defense or defense of someone else.

Defining “Assault With A Deadly Weapon” Under California Penal Code §245(a)(1)

To convict you under CPC §245(a)(1),the prosecutor must prove the following beyond a reasonable doubt:

  • Deadly Weapon/Application Of Force: You did something using a deadly weapon (other than a firearm[2]) that, by its nature, would directly and probably result in applying force[3] to a person; OR,
  • Application Of Force/Great Bodily Injury: You did an act that, by its nature, would directly and probably result in application of force likely to produce great bodily injury;[4] AND,
  • Willfully: You did the act willfully;[5] AND,
  • Aware Of Facts/Result Of The Act: When you acted, you knew facts that would lead a reasonable person to realize the act would directly and probably result in application of force to someone;[6] AND,
  • Present Ability: When you acted, you had the present ability to apply force[7]  likely to produce great bodily injury or to assault with a deadly weapon other than a firearm;[8] AND,
  • Force Not Used In Defense: You didn't act in self-defense or in defense of someone else.[9]

Note: Force can be applied “indirectly by causing an object or someone else to touch”[10] another person.

Example: A California boxer, Defendant Dmitri, gets into an argument with Victim Vinnie, a patron at a bar. Dmitri wants to punch Vinnie but he's concerned that using his fists could hurt his chances in an upcoming prizefight. Dmitri reaches into his gym bag and produces a .22 caliber pistol instead. He shoves the weapon in Vinnie's face. Vinnie apologizes before running from the bar and flagging down   Police Officer. He has Dmitri arrested for violating §245(a)(1). Should Dmitri be convicted of the crime?  

Conclusion: Dmitri used a deadly weapon to threaten Vinnie. He knew that producing the weapon and shoving it in Vinnie's face would be an application of force – and we can assume he intended as much, since he was arguing with Vinnie at the time. Dmitri also acted willfully, since he considered exactly how to assault Vinnie before he did it. That Dmitri had a weapon and pulled it out also shows his “present ability” to assault Vinnie, while the facts don't suggest that Dmitri was defending himself or someone else. But Dmitri assaulted Vinnie with a pistol, a firearm, which is not a weapon covered by §245(a)(1).[11] Dmitri, therefore, shouldn't be convicted of Vinnie's accusation.

Penalties For Assault With A Deadly Weapon Under CPC §245(a)(1)

As noted earlier, CPC §245(a)(1) is a “wobbler”[12] in California. You can be charged with either a Felony or a Misdemeanor violation of the law, depending on factors like: the type of weapon used in the assault; whether you hurt someone in committing the crime; and/or the profession of the person you assaulted.

If you're charged with the Misdemeanor form of Assault With A Deadly Weapon, you face up to one (1) year in a county jail[13] and/or a fine of up to $1,000 (one-thousand dollars).[14] If charged with the Felony form, you face up to four (4) years in state prison and/or fines of up to $10,000 (ten-thousand dollars).[15] Probation, which permits you to serve at least part of your sentence outside jail or prison, is permissible with both forms of Assault With A Deadly Weapon.

Note that California's “Three Strikes” law may also apply to a conviction under CPC §245(a)(1). Using a firearm in an Assault With A Deadly Weapon or employing force resulting in great bodily injury triggers application of CPC §1170(h).[16] In the event that you receive a “third strike,” you will be sentenced to at least twenty-five years in a state prison.[17]

Defenses To California Penal Code §245(a)(1) – Assault With A Deadly Weapon

You Didn't Act Willfully

Example: Defendant Dickie is part of a crew working on the side of the road. Dickie holds a pickaxe. At one point, a member of the crew (“Member”) decides to play a joke on Dickie. He sneaks behind Dickie as Dickie pauses to chat with a different crew member, Victim Vidor. Just as Dickie lifts his axe to clear some brush from the handle, Member pushes Dickie, causing him to fall onto Vidor. Dickie buries the axe in Vidor's shoulder. Vidor, thinking Dickie attacked him, has the police summoned. They arrest Dickie for violating CPC §245(a)(1). Should Dickie be convicted of the charge?

Conclusion: Violation of CPC §245(a)(1) requires a willing act that results in application of force. Here, while there was clearly application of force using a deadly weapon, resulting in a serious injury to Vidor, Member pushed Dickie, causing Dickie to accidentally strike Vidor. The blow itself wasn't willful. Dickie, therefore, should be acquitted of the charge.[18]      

You Didn't Use A Deadly Weapon Or Force Likely To Result In Great Bodily Injury

Example: Defendant Donald runs an ice cream store. One day, Donald is serving a loud and obnoxious young patron, Victim Veronica. Veronica insults Donald and his other customers. Donald becomes angry and grabs a handful of ice cream. He throws the dessert at Veronica just as Police Officer walks by, sees the assault, and concludes that slipping on the melted ice cream would result in great bodily injury to Veronica. Police Officer arrests Donald for violating CPC §245(a)(1). Should Donald be convicted?

Conclusion: Donald used force by throwing the ice cream. He had the present ability to do so simply by reaching into a container and taking the ice cream. He knew that what he was doing - responding angrily to Veronica by throwing food - would result in application of force. Donald threw the ice cream willingly and he didn't do it as an act of defense. However, ice cream is not “inherently deadly,” nor is it “likely to cause death or great bodily injury”[19] [emphasis added] simply by being on the floor. Donald shouldn't be convicted simply because he didn't use a deadly weapon or force likely to result in great bodily injury.[20]

You Were Lawfully Defending Yourself Or Another Person (Self-Defense Or Defense Of Another)

Example: Defendant Drake witnesses a man attacking a woman, Victim Vonn, behind a gas station. Drake, who has a hammer, swings it at the attacker and drives him off but accidentally strikes Vonn as he finishes a hammer stroke. Vonn, who is furious and injured, calls the police. The police arrive, see Vonn's injury, and arrest Drake for violating CPC §245(a)(1). Should Drake be convicted of the crime?

Conclusion: Drake had a legal excuse for assaulting the man who was attacking Vonn behind the gas station, so long as the assault ended when the man ran from the scene, and Drake used no more force than was necessary to protect Vonn. (This is known as “not exceeding the scope of defense of another person.”) That Drake accidentally struck Vonn while doing what was reasonably necessary to protect her, therefore, doesn't deny him defense of another person as legal excuse. Drake was acting lawfully to protect Vonn when he accidentally struck her. Drake, therefore, shouldn't be convicted of the charge.

The Accusation Is False

Example: Victim Vern hates the police. He decides he's going to ruin the career of a City detective, Defendant Davis, for whom he reserves a particularly strong disdain. Vern pays a man to hit Vern with a car. Vern is taken to the City Hospital Emergency Room and while there he does an interview accusing Davis of running him over.[21]  City police arrest Davis and charge him with violating §245(a)(1). Should Davis be convicted of the charge?

Conclusion: Vern has alleged an Assault With A Deadly Weapon through the use of a deadly weapon (namely, a car). Every element of the crime is present in this example. The only problem is that Vern lied; Davis didn't have anything to do with the attack that resulted in Vern's hospitalization. Vern paid to be attacked by someone else. Davis, therefore, shouldn't be convicted because the accusation is false.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with CPC §245(a)(1) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code has several offenses related to Assault With A Deadly Weapon: Simple Assault (CPC §240), Battery Causing Serious Injury (CPC §243(d)), Simple Battery (CPC §242), Brandishing A Weapon Or Firearm (CPC §417), Assault With Caustic Chemicals (CPC §244), Assault On A Public Officer (CPC §217.1), Failing To Control A Dangerous Animal (CPC §399), Throwing Dangerous Object At A Motor Vehicle (California Vehicle Code (CVC) §23110(b)), Assault On Emergency Personnel (CPC §241(c)), Assault On A Police Officer (CPC §§243(b) and (c)), and Resisting An Executive Officer (CPC §69).

Simple Assault

California law on Assault (CPC §240) makes it unlawful to attempt to “commit a violent injury” [22] against another person. The actual Assault needn't involve touching the victim and the prosecution doesn't have to prove that any touching occurred.[23] However, even slight touching (including touching someone through the clothing) can be enough for a Simple Assault.[24] The touching can also occur indirectly.[25]

If you're convicted of violating CPC §240, a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in the county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[26]

Note:  The prosecution doesn't have to prove that you intended on hurting anyone. However, “if someone was injured, [the jury] may consider that fact, along with all the other evidence, in deciding whether [you] committed an assault.” That you were intoxicated voluntarily is not a defense, however.[27]

You can find more information in the Assault Crimes section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We always guarantee it.

California Criminal Jury Instructions – Assault

To convict you under CPC §240, the prosecution must prove the following beyond a reasonable doubt:

You did something that would directly and probably result in applying force to another person. You        did it willfully. When you did it, a reasonable person would've realized the act would result in applying force. Finally, you had the present ability to apply force.

Example: Defendant Denise has a crush on a young man, Victim Vladimir, who sits in the row ahead of her in a class. She tries to get his attention during class even though Vladimir wants to focus on lecture material. Denise decides to get him to look at her by making a paper airplane and tossing it at Vladimir. Hearing her giggle, Vladimir turns in time to see the plane as it strikes him in the neck. Livid, Vladimir complains to campus police. They arrest Denise for violating CPC ‍§240. Should Denise be convicted?

Conclusion: Denise, in tossing the paper airplane at Vladimir, willfully did something that would directly and probably result in touching Vladimir. She, as a reasonable person, would realize that tossing the paper airplane would result in applying force to Vladimir; that Denise wanted to touch him and get his attention is precisely why she did it. Denise had the ability to apply force since she was only a row from Vladimir and used a form of airplane to make contact with him. It doesn't matter that Denise had no hurtful intent, nor does it matter that Vladimir wasn't hurt. Denise should be convicted under §240.[28]

Battery Causing Serious Injury

Battery Causing Serious Injury (CPC §243(d)) occurs in California whenever a Battery results in serious bodily injury, including concussions, bone fractures and/or serious disfigurement.[29] Assault With A Deadly Weapon can become a Battery Causing Serious Injury when the assault itself is completed.

If you're convicted of Battery Causing Serious Injury,[30] the penalty may be:

  • A term of two (2), three (3), or four (4) years in a state prison;[31] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[32] OR,
  • Both imprisonment and a fine.[33]

Note: Just making contact with a person through the clothing is enough to commit a Battery. The touching can be done indirectly (i.e., by causing an object or someone else to touch the other person).[34]

You can always find more information in the Battery section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions – Battery Causing Serious Injury

To convict you under CPC §243(d), the prosecution must prove the following beyond a reasonable doubt:       

You willfully and unlawfully touched someone in a harmful or offensive manner. As a result, that person  

suffered serious bodily injury. Finally, you didn't act in self-defense, in defense of someone else or while reasonably disciplining a child.

Example:  Two men, Defendant Donice and Victim Vasquez, are standing beside a flight of stairs inside a nightclub. Donice, who's talking to a friend, begins laughing. He bumps into Vasquez, who isn't prepared for the contact. Vasquez falls down the stairs and breaks his arm. Vasquez has the Nightclub Manager  

call the police, who arrest Donice and charge him under CPC §243(d). Should Donice be convicted?

Conclusion: Donice touched Vasquez in a way that seriously hurt Vasquez. He didn't touch Vasquez in a way that provides legal excuse (that is, he wasn't defending himself or someone else, nor was he disciplining a child). However, the contact wasn't “willful”; Donice, who was laughing, didn't intend the action that caused contact with Vasquez, though it led to Vasquez's injury. Donice should be acquitted.

Simple Battery

Simple Battery (CPC §242) occurs in California when anyone willfully and unlawfully uses force against another person. An act is committed “willfully” when done it willingly or on purpose. You don't have to intend on breaking the law, hurting someone else, or gaining any advantage to act “willfully.” [35] Battery is related to Assault With A Deadly Weapon because Assault often becomes Battery upon completion.

If you're convicted of Simple Battery, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[36]

Note: A slight touch can be enough to commit a Battery, if it's done in a rude or angry way. The touching doesn't have to cause pain or injury.[37]

You can always find more information in the Battery section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer. That is our guarantee.

California Criminal Jury Instructions – Simple Battery

To convict you under CPC §242, the prosecution must prove the following beyond a reasonable doubt:       

You willfully and unlawfully touched someone in a harmful or offensive manner. Additionally, you didn't act in self-defense, in defense of someone else or while reasonably disciplining a child.

Example: Two women, Defendant Dara and her Teammate, are practicing soccer on a pitch (field). Dara decides to show Teammate her “bicycle kick,” a difficult trick in which Dara tosses the ball in the air and kicks it while falling onto her back. When she kicks the ball, however, it glances off her foot and strikes a nearby fan, Victim Vinton, who is offended because the contact makes him look foolish to his friends. He calls for police and charges Dara with Simple Battery. Should Dara be convicted of the accusation?

Conclusion: Battery requires only harmful or offensive touching without a legal excuse. Here, Dara touched Vinton with the soccer ball; Vinton took offense. Dara wasn't defending herself, or someone else, or disciplining a child. But Vinton was struck owing to a mere accident following a tough athletic move. The contact wasn't “willing.” Therefore, since the courts must find in the defendant's favor if the prosecution fails to prove even one element of a charge, Dara shouldn't be convicted of the crime.

Brandishing A Weapon Or Firearm

Brandishing A Weapon Or Firearm (CPC §§417(a)(1),(2)) is a crime whenever anyone exhibits a firearm[38] or a deadly weapon[39] in another person's presence without legal excuse (self-defense or defense of another). The crime is related to Assault With A Deadly Weapon because both offenses may involve presentation of a deadly weapon or firearm.

If you're convicted of Brandishing A Weapon Or Firearm, usually a Misdemeanor, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[40]

Note: The weapon must be presented in a “rude, angry, or threatening manner” or used in a fight. If you're accused of brandishing a firearm, it doesn't have to be loaded.[41]

You can find more information on the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions –Brandishing A Weapon Or Firearm

To convict you under CPC §417(a)(2), the prosecution must prove the following beyond a reasonable doubt:

You drew or exhibited a firearm or a deadly weapon in someone else's presence. You presented the weapon in a rude, angry, or threatening manner or used the weapon in a fight. Lastly, you didn't act

in self-defense or in defending someone else.

Example: Defendant Devers is a criminal who's committed a string of shootings without the crimes being connected to him. One day he sees an ad offering a reward for information leading to the arrest of “The .25-Caliber Shooter,” whom Devers recognizes to be himself. He goes next door and shows the ad to his friend, Victim Vernon. Devers then removes his .25-calber firearm from its holster. “You think it's kind of like this one?” Devers sheepishly asks.[42] Vernon, who doesn't appreciate the firearm being drawn in his presence,  later calls the police and reports Devers for violating CPC §417(a)(2). Should he be convicted?  

Conclusion: Devers presented a firearm (his .25-caliber pistol) to Vernon. He wasn't doing it to defend himself or someone else. However, while Devers used the weapon in a number of crimes, he didn't present it to Vernon in a “rude, angry, or threatening manner”; he showed Vernon the weapon and innocently inquired what Vernon thought. Devers, therefore, shouldn't be convicted under CPC §417.[43]

Assault With Caustic Chemicals

Assault With Caustic Chemicals (CPC §244) occurs whenever a “person… willfully and maliciously places or throws, or causes to be placed or thrown…  any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of [a] person.”

As the statute states, “'flammable substance' means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.”[44] The crime is related to Assault With A Deadly Weapon because caustic chemicals are inherently dangerous and likely to produce great bodily injury.

If you're convicted of Assault With Caustic Chemicals, a Felony, the penalty may be:

  • A term of up to four (4) years in a state prison;[45] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[46] OR,
  • Both imprisonment and a fine.[47]

Note:  “Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”[48]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Assault With Caustic Chemicals

To convict you under CPC §244, the prosecution must prove the following beyond a reasonable doubt:

You willfully and maliciously placed, threw, or caused a caustic chemical to be placed or thrown on someone else. When you acted, you intended on injuring the other person's flesh or disfiguring the person's body. Finally, you didn't act in self-defense or in defense of someone else.

Example: Defendant Douglas, a college student, attends a protest on his school's campus, where he sees another student, Protestor, scuffling with a member of the campus police, Victim Vaughan. Douglas has in his pocket a can of pepper spray. Douglas, having concluded that Vaughan is using excessive force against Protestor, intervenes by spraying the can in Vaughan's eyes. Protestor escapes but Vaughan summons other police and has Douglas arrested for violating CPC §244.[49] Should Douglas be convicted?

Conclusion: While most elements of the offense are present in this example (in other words, Douglas caused a chemical to make contact with Vaughan, which was willful, and it is questionable whether he had the legal excuse of protecting someone else, under the circumstances), Douglas didn't use a caustic chemical. The statute defines “caustic chemicals” for purposes of prosecution - and pepper spray is not one of them, since it can't actually disfigure a person or injure the flesh. Douglas should be acquitted.[50]

 

Assault On A Public Officer

An Assault On A Public Officer (CPC §217.1(a)) occurs whenever an assault is committed against persons ranging from the President of the United States to jurors and their immediate families. Persons listed in the statute are defined as “public officers” under related California law (CPC §§ 830.1 and 830.5).[51]

Since Assault On A Public Officer may be charged as a Misdemeanor or Felony, the crime is a “wobbler”[52] under California law. The offense is related to Assault With A Deadly Weapon because both forms of assault can result in great bodily injury or involve the use of a firearm.   

If you're convicted of Assault On A Public Officer (without “Three Strikes” sentence enhancement), the Felony penalty may be:

  • A term of up to three (3) years in a county jail;[53] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[54] OR,
  • Both imprisonment and a fine.[55]

Note: The assault must be committed as retaliation or to prevent the officer from performing official duties.[56]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We guarantee it.

California Criminal Jury Instructions – Assault On A Public Officer

To convict you under CPC §217.1(a), the prosecution must prove the following beyond a reasonable doubt:

You committed an assault on any one of the persons listed in the statute or CPC Sections 830.1 or 830.5. Additionally, you committed the assault in retaliation against the person or to prevent the person from performing official duties.

Example:  Defendant Deirdre is being tried for Grand Larceny. Using contacts inside the courthouse where her trial's to be held, Deidre gets a list of the jurors' names and addresses. She decides to threaten a juror into voting for her innocence. Deidre, however, doesn't want to tamper directly with the jury. She approaches a juror's stepdaughter, Victim Violet, and threatens Violet with a switchblade, telling Violet to tell her mother “not to send the nice lady away” or Violet “will get it.” Violet reports Deidre, who's re-arrested and charged under CPC §217.1(a). Should Deidre be convicted of the crime?

Conclusion: Though Deidre apparently believed that she wasn't committing an assault against a person protected by CPC §217.1(a), she was wrong. Jurors are considered “public officers” under the statute – as are their “immediate families,” which includes stepchildren. Thus when Deidre approached Violet and threatened her with a deadly weapon to prevent Violet's mother from honestly performing her duties as a juror, Deidre committed an Assault On A Public Officer. Deidre should be convicted of the accusation.

Failing To Control A Dangerous Animal     

Failing To Control A Dangerous Animal (CPC §399(a),(b)) occurs whenever any person who owns or has custody of a dangerous animal, knowing it to be dangerous, willfully allows it to escape or keeps it without ordinary care and the animal seriously injures or kills a human being. The crime is related to Assault With A Deadly Weapon because a dangerous animal can be used as a weapon in a serious or deadly assault.

If you're convicted of Failing To Control A Dangerous Animal under Section (a), a Felony, the penalty may be:

  • A term of up to three (3) years in a state prison;[57] OR,
  • A fine of up to $10,000 (ten-thousand dollars); [58] OR,
  • Both imprisonment and a fine.[59]

Note: The person killed had to have exercised reasonable care in order to convict you under §399(a).[60]

You can find more information on the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We guarantee it.

California Criminal Jury Instructions – Failing To Control A Dangerous Animal

To convict you under CPC §399(a), the prosecution must prove the following beyond a reasonable doubt:

You owned or had custody of a dangerous animal. You knew the animal to be dangerous. You willfully allowed it to roam freely or kept it without ordinary care. Finally, the animal killed a human being who had taken the precautions to ensure her or his safety that a reasonable person would ordinarily take under the circumstances.

Example: Defendant Davey has a dog named Champion, a “rescue animal,” saved from a group of people who used Champion in an underground dog fighting ring called “Bad New Dogz.”[61] Davey knows that Champion has a habit of biting people whenever he gets off his leash as a result. One day, while walking Champion, Davey trips over a curb and loses his grip on Champion's leash. Champion makes a beeline for a nearby pedestrian, Victim Valerie, and bites her. Valerie calls the police and has Davey arrested for violating CPC §399(a). Should Davey be convicted?

Conclusion: There are two problems in the example. First, while Davey knew he had control over an animal that had a history of violence and was prone to biting people when off its leash, Davey didn't willfully release Champion's leash; he lost control over Champion when he fell. Beyond that, Valerie wasn't killed by Champion, which is required under Section (a). Davey, thus, shouldn't be convicted.

Throwing Dangerous Object At A Motor Vehicle

Throwing Dangerous Object At A Motor Vehicle (CVC §23110(b)) is a crime whenever anyone, intending on doing “great bodily injury[,] maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm”[62] at a vehicle or its occupant. The crime is related to Assault With A Deadly Weapon because an object thrown at a motor vehicle may itself be a deadly weapon under CPC §245(a)(1).

If you're convicted of Throwing Dangerous Object At A Motor Vehicle, a Felony, the penalty may be:

  • A term of up to three (3) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment. [63]

Note: You don't have to have the ability to strike the vehicle to violate CVC §23110(b). The vehicle also doesn't have to be in motion for the Vehicle Code section to apply.[64]

You can find more information on the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We always guarantee it.

California Criminal Jury Instructions – Throwing Dangerous Object At A Motor Vehicle

To convict you under CVC §23110(b), the prosecution must prove the following beyond a reasonable doubt:

Intending on doing great bodily injury, you maliciously and willfully projected a rock, brick, bottle, metal or anything capable of doing serious bodily harm at a vehicle or its occupant.

Example: Defendant Derek sees his ex-girlfriend, Victim Vanya, in a car with a man, New Boyfriend, and takes serious offense at their being together. Knowing that they'll drive beneath a bridge near his house, Derek takes a large rock and waits for them to pass. The car appears a few minutes later. Derek waits until it is close and then tosses the rock, crushing the windshield and sending both occupants off the road. [65] New Boyfriend is killed; Vanya is seriously hurt.  Police track down Derek and arrest him for violating CVC §23110(b). Should Derek be convicted of the charge?

Conclusion: Derek hoped to knock his ex-girlfriend off the road, a malicious effort involving throwing a rock at New Boyfriend's car. Derek intended on throwing the rock, we can reasonably assume, and the rock itself was capable of doing serious harm. Derek, therefore, should be convicted under §23110(b).

Assault On Emergency Personnel

Assault On Emergency Personnel (CPC §241(c)) is a crime when, broadly speaking, assault is committed on a peace officer,[66] emergency services provider, code enforcement officer,[67] medical professional,  or a search and rescue member[68] performing duties. You must know (or reasonably should know) that the victim is emergency personnel performing duties at the time of the assault to be guilty under the CPC.

If you're convicted of Assault On Emergency Personnel, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both a fine and imprisonment.[69]

Note: Voluntary intoxication is not a defense.[70]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Assault On Emergency Personnel

To convict you under CPC §241(c), the prosecution must prove the following beyond a reasonable doubt:

You did an act that by its nature would result in application of force to a person. You did the act willfully. When you acted, you knew facts that would lead a reasonable person to realize the act would result in application of force.  You had the present ability to apply force. When you acted, the victim was lawfully performing duties as emergency personnel. Finally, you knew, or reasonably should've known, that the victim was emergency personnel performing official duties.

Example: A uniformed firefighter, Victim Vail, is standing beside a burning house. The homeowner, Defendant Doug, thinks his dog is trapped inside the fire. Vail tells the other firefighters about the dog and instructs Doug to stay back while they search for his pet. Doug won't wait, however. He pushes past Vail and knocks her to the ground just as another firefighter emerges from the blaze with Doug's dog. But Vail is hurt. She reports Doug to the police. They arrest him for violating §241(c). Should Doug be convicted?

Conclusion: Doug applied force against Vail when he knocked her over because he hoped to get into the building to save his dog. Thus he intended on what he did. Furthermore, the act of shoving Vail is one which, by its nature, would result in application of force (something Doug would know, since he was trying to get past Vail). Clearly Doug had the present ability to apply force, since he did so, and Vail was in uniform while performing firefighter duties at the time (keeping a homeowner away from a burning building). Doug, therefore, should be convicted of the charge.     

Assault On A Police Officer

 

Assault On A Police Officer (CPC §§243(b) and (c)(2)) occurs in two contexts. The first, Section (b), applies, broadly, whenever a Battery is committed against a peace officer,[71] emergency services  technician,[72] a nonsworn employee of a probation department, medical professional or a search and rescue team member engaged in the performance of his or her duties, whether on or off duty. You must know (or reasonably should know) of the victim's position and that the victim is performing duties at the time of the Battery to be guilty under the Penal Code section.  

The second, Section (c)(2), applies whenever a Battery is committed against a peace officer engaged in the performance of his or her duties (whether on or off duty), including when the peace officer is in a police uniform and performing duties required as a peace officer while employed privately as a part-time security guard or patrolman. The officer must suffer injury. Finally, you must know (or reasonably should know) the victim is a peace officer performing his or her duties at the time of the Battery to be guilty.

Both forms of Assault are related to Assault With A Deadly Weapon because one of the ways in which Assault On A Police Officer can occur is with a deadly weapon or firearm.

If you're convicted of violating CPC §243(b), the penalty may be:

  • A term of one (1) year in county jail; OR,
  • A fine of up to $2,000 (two-thousand dollars); OR,
  • Both a fine and imprisonment.[73]

If you're convicted of violating CPC §243(c)(2), the penalty may be:

  • A term of up to three (3) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment. [74]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That is our guarantee.

California Criminal Jury Instructions – Assault On A Police Officer

To convict you under CPC §§243(c)(2), the prosecution must prove the following beyond a reasonable doubt:

You willfully and unlawfully touched a peace officer in a harmful or offensive manner while the officer performed official duties. When you acted, you knew, or reasonably should've known, that the person was a peace officer performing duties. The officer suffered injury as a result. Finally, you didn't act in self-defense or defense of someone else.

Example: Defendant Darien goes to her favorite tavern on St. Patrick's Day and gets very intoxicated.  At one point she falls down and passes out, causing Bartender to summon Emergency Medical Technicians (EMTs). A uniformed EMT, Victim Vinton, tries to administer mouth-to-mouth resuscitation to Darien, but just as he does, Darien awakens, sees him, and thinks he's about to kiss her. Darien punches Vinton, splitting his lip, and knocks him back. The other EMTs attend to Darien while Vinton talks with Police Officer, who takes Vinton's report and arrests Darien for violating §243(c)(2). Should she be convicted?

Conclusion: Darien, without sufficient legal excuse, struck Vinton hard enough to split his lip and knock him back. Vinton was wearing an EMT uniform and trying to administer mouth-to-mouth at the time, which would've put a reasonable person on notice that Vinton was an official performing his duties when Darien struck him. Darien willfully touched Vinton because she thought he was trying to kiss her and wanted to rebuke him. However, Darien didn't strike a “peace officer” as defined in the CPC; she struck an EMT, properly described as a “public officer” for purposes of prosecution under the Penal Code. Therefore, since Darien wasn't charged under §243(b), she should be acquitted.[75]           

Resisting An Executive Officer

California's law against Resisting A Peace Officer (CPC §69(a)) applies whenever a person tries to deter or prevent an “executive officer”[76] from performing job duties through threat or violence. It's isn't illegal to take a picture of an executive officer performing duties, however, so long as you have a right to be present.[77]  You also have the right to resist a peace officer is he or she is making an illegal arrest or using excessive force.[78]

If you're convicted of Resisting A Peace Officer, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[79]

You can always find more information on the Evading An Officer page of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions

To convict you under CPC §69, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully used force or threat to resist an executive officer performing his or her lawful duty and you knew the officer was performing his or her duty when you acted.

Example:  A motorist, Defendant Donald, is pulled over for speeding. A uniformed police officer, Victim Vonnie, gets out of her patrol car and approaches Donald's window. She tells Donald that it's standard procedure for police to have drivers step out of their cars during traffic stops and asks Donald to do the same. Donald, who's in a hurry to get to work, refuses, telling Vonnie, “Just gimme the ticket!” Vonnie asks Donald to get out again; again Donald refuses. Finally, Vonnie draws her service weapon and tells Donald to get out of the car because he's under arrest for violating §69. Should Donald be convicted?

Conclusion: Donald, we can assume, knew Vonnie was a police officer because she was in uniform and driving a police patrol car. Pulling over a speeding motorist and having him step out of his car would also be official duties for a police officer. We can assume that Donald was aware of all of this. But the crime of Resisting Arrest requires the use of “threat,” “force,” or “violence.”[80] Donald, while he may have been rude, simply refused to get out of his car when asked. Therefore, as he neither threatened Vonnie nor used force or violence against her during the traffic stop, Donald shouldn't be convicted of the crime.

What Can I Do If I'm Charged With Assault With A Deadly Weapon?

The State of California treats Assault With A Deadly Weapon as a serious offense. If you're charged with Assault With A Deadly Weapon, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested for, or charged with, Assault With A Deadly Weapon, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.

References

[1] See “Wobbler” definition at USLegal.com (“In California, Wobbler refers to a criminal offense that can be classified as either a misdemeanor or a felony. It ‘wobbles' between these two categories of offenses. It signifies a lesser felony offense that specifies fines or jail time as alternative punishments to state prison”).

[2] “A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” See California Criminal Jury Instructions 875 (CALCRIM) (2017).  

[3] “The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object [or someone else] to touch the other person.” See above.

[4] “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” See above.

[5] “Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.” See above.

[6] “The People are not required to prove that the defendant actually intended to use force against someone when [he or she] acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, [the jury] may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.” See above.

[7] “The People are not required to prove that the defendant actually touched someone.” See above.

[8] “A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” See above.

[9] See California Criminal Jury Instruction 3470 (CALCRIM) (2017) for Self-Defense/Defense of Another.

[10] See California Criminal Jury Instructions 875 (CALCRIM) (2017).  

[11] Assault with a firearm is covered in CPC §245(a)(2). Dmitri might, however, be convicted of offenses including Brandishing A Weapon Or Firearm (CPC §417).

[12] See Endnote 1.

[13] See CPC §245(a)(1).

[14] See CPC §19.

[15] See Endnote 13.

[16] See CPC §667.5(c)(8).

[17] See CPC §667(2)(A)(ii).

[18] Dickie was also unaware of a critical fact regarding the application of force (i.e., that Member intended on pushing him).

[19] See Endnote 2.

[20] Donald could still be charged with crimes like Simple Assault (CPC §240) or Simple Battery (CPC §242).

[21] Facts based on a ruse created by “The Scorpio Killer” in the 1971 Warner Brothers' film Dirty Harry.

[22] See CPC §240.

[23] See California Criminal Jury Instructions 915 (CALCRIM) (2017).

[24] See above.

[25] See Endnote 22.

[26] See Endnote 14.

[27] See California Criminal Jury Instructions 915 (CALCRIM) (2017).

[28] Note that Denise could also be charged with Simple Battery (CPC §242).

[29] See California Criminal Jury Instructions 925 (CALCRIM) (2017).

[30] Since Battery can be charged under CPC §242 or §243(d), depending on the facts, Battery is technically a “wobbler” offense in California.

[31] Felony sentencing under §243(d) requires that the Battery be punishable as an offense listed in §1170(h)

[32] See CPC §672.

[33] See above.

[34] See Endnote 29.

[35] See California Criminal Instructions 960 (CALCRIM) (2017).

[36] See Endnote 14.

[37] See Endnote 35.

[38] See California Criminal Jury Instructions 983 (CALCRIM) (2017).

[39] See above.

[40] See CPC §417(2)(A).

[41] See Endnote 38.

[42] Facts based on an incident in which Lonnie David Franklin, “The Grim Sleeper,” casually showed his murder weapon, a .25-caliber pistol, to a neighbor after seeing an ad offering $250,000 for information leading to the arrest of “The .25-Caliber Killer” (who was actually Franklin). Reported in Tales Of The Grim Sleeper (HBO Documentary Films, 2014 (22:50 – 23:45)).

[43] Devers could, of course, be tried for any number of other crimes.

[44] See CPC §244.

[45] See above.

[46] See Endnote 32.

[47] See above.

[48] See California Criminal Jury Instructions 877 (CALCRIM) (2017).

[49] Facts paralleling People v. Booher, 18 Cal.App.3d 331, 95 Cal.Rptr. 857 (1971). (Defendant Booher was convicted of Assault On A Public Officer using a can of mace and claimed clear legal error; Court Of Appeals held for Booher.)

[50] Douglas could still be charged with Assault On A Public Officer (CPC §217.1), Resisting An Executive Officer (CPC §69) or Assault On A Police Officer (§243(b)), among other charges.

[51] See CPC §217.1(c)(2).

[52] See Endnote 1.

[53] Terms must be served in state prison for those with a prior “strike” conviction. See CPC §1170(h)(3).

[54] See Endnote 32. 

[55] See above.

[56] See CPC §217.1(a).

[57] See CPC §18(a).

[58] See Endnote 32.

[59] See above.

[60] See CPC §399(a).

[61] Facts culled from Michael Vick's admissions of guilt in operating the “Bad Newz Kennels” from 2001-2007. See Case Study: Animal Fighting - Michael Vick. Animal Legal Defense Fund, December 15, 2010

[62] See CVC §23110(b).

[63] See Endnote 32.

[64] See People v. Whitney, Cal.Ct.App.4th, Cr. 16784 (1978). (Defendant Whitney claimed CVC §23110 required that he fire his pellet gun at a moving car for a conviction; Court of Appeals held for the State.)

[65] Facts based on a current Michigan case in which five teenagers were charged with throwing a rock from an overpass, killing a driver. See “Teenagers Enter Pleas In Fatal Rock-Throwing Case,” US News Online, Oct. 26, 2018.

[66] See California Criminal Jury Instructions 900 (CALCRIM) (2017).

[67] See CPC §241(d)(9)(A).

[68] See CPC §241(d)(11).

[69] See CPC §241(c).

[70] See Endnote 67.

[71] See CPC §243(f)(1).

[72] See CPC §243(f)(2).

[73] See CPC §243(b).

[74] See CPC §243(c).

[75] Darien could still be prosecuted under CPC §§240 and 242, among other Code sections.

[76] See California Criminal Jury Instructions 2652 (CALCRIM) (2017).

[77] See CPC §69(b).

[78] See California Criminal Jury Instructions 2652 (CALCRIM) (2017).

[79] See CPC §69(a).

[80] See above.

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