According to California Penal Code 240, assault is the attempt to threaten or commit violent injury to another individual. Because of the obliqueness of this law, defendants can become confused at the charges and circumstances surrounding them. A San Diego criminal defense lawyer at the Law Offices of Bradley R. Corbett will be able to help you understand the ambiguity surrounding this crime and build a solid defense for your case.
Assault and Battery
Because of the nature of these two crimes, an individual is almost always charged with both rather than one or the other. Prosecutors will often charge an individual of assault in addition to battery to increase the penalties associated with the crime. Battery is often included with an assault charge because of the ambiguity of the law. An assault charge does not have to involve an actual inflicted injury, so disproving it can be difficult. The prosecutor needs only prove that you had the intent and the ability. Defending a charge of assault without San Diego assault defense attorney Bradley R. Corbett could mean the difference between spending time in jail and carrying on with life as usual.
Assault with a Deadly Weapon
Assault with a deadly weapon is a different case entirely. Prosecutors can charge assault with a deadly weapon as either a misdemeanor or a felony depending on three things:
- 1) Type of Victim
- 2) Injury Sustained or Not
- 3) Type of Weapon Used
If the person assaulted was an officer or public servant in any form, the charge can easily be increased to a felony. The use of a deadly weapon also makes it very easy to increase the charges against the defendant. Proving ability to use force is much easier when a weapon is involved. If an injury was sustained, proving assault is easy if battery is proven first.
Assault with a Deadly Weapon California Penal Code 245(a)(1)
Assault with a deadly weapon is defined as a person attempt to commit great bodily injury of another using a deadly weapon. A deadly weapon in California is defined as a weapon likely to produce death or great harm to another. Examples of deadly weapons are 1) Glass bottles 2) Dog(s) 3) Lighting equipment 4) A vehicle. For a person to violate California Penal Code 245(a)(1) the state must prove two elements in order for he or she to be convicted. They are 1) The person assaulted someone and 2) The person assaulted the victim with a deadly weapon or other ways to cause great harm that causes injury. Examples of great bodily injury are 1) Broken bones 2) Dog bites 3) Broken jaw. There are six common defenses to California Penal Code 245(a)(1).
The six common defenses to California Penal Code 245(a)(1) are
- 1) Unable to commit the assault (Threatening to light the victim on fire with an empty lighter)
- 2) The person lacked intent
- 3) Lack of evidence
- 4) Police misconduct
- 5) Consent
- 6) Self-defense.
California Penal Code 245(a)(1) is considered to be a wobbler. A person can be charged with either a misdemeanor or a felony depending on the 1) The weapon used 2) The injury suffered by the victim 3) The present look of the victim. If the person is charged with a misdemeanor then he or she faces 1) Probation 2) Maximum sentence of one year in county jail 3) Fine up to $1,000 4) Restitution to the person harmed 5) Weapon is taken away 5) Potential community service. If the person is convicted with a felony then the penalties are 1) Between 2 to 4 years in California state prison 2) Fine up to $1,000 3) Restitution to the person harmed 4) Strike on the persons record 5) The weapon is taken away.
However, if the person uses a specific type of firearm such as 1) Machine guns 2) Semi-automatic weapons then the person faces 1) 4 to 12 years in California state prison 2) and the penalties stated above.
The Strike Law Assault with a Deadly Weapon
A person will face a strike on their record if 1) The crime resulted in bodily injury to the victim 2) The person used a firearm/weapon or 3) The person used the firearm/weapon on an officer. If the person is facing a second strike on their record then the sentence will be twice the period. If it’s a third strike then the person faces a minimum sentence of 25 years to life in California state prison.
If you have been charged with assault with a deadly weapon, you could be facing up to four years in prison, a $10,000 fine, any restitution deemed by the court, and a possible strike on your record. These penalties could be life changing and long lasting. Reducing your charges from a felony to a misdemeanor or even dismissing them entirely could mean you get a second chance at success in life. The team at the Law Offices of Bradley R. Corbett believes you deserve the chance to get the best possible outcome from your case. Let us help you fight your case against the assault charges you face.
Assault with a Firearm
This is as serious a charge as they come, because if filed together with an attempted murder charge, you could be facing life in prison. An individual can be charged of this crime if they shoot someone with a gun, hit them with a gun, fire a gun at another person, even point a loaded gun at someone in any way that makes them believe you would shoot it. Being charged with this crime is a terrible situation for an innocent person. If you or a loved one has been charged with assault with a firearm, the criminal defense team at the Law Offices of Bradley R. Corbett can help.
You are More than Just a Case
At the Law Offices of Bradley R. Corbett, our clients are not just another case to work through and file on the shelf. Each San Diego criminal defense attorney takes time to get to know and understand our clients and their situations. We understand how stressful it can be to be charged with such a crime as assault. Our team will keep fighting to safeguard your rights. Call us today for your free consultation to find out how we can help with your case.
Penal Code 240 PC
An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.
For one to be convicted of an assault, certain elements must be met.
1. The defendant did an act that by its nature would directly and probably result in the application of force to a person;
This means that there was an act and the act directly resulted in the force.
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. The Government is not required to prove that the defendant actually touched someone.
2. The defendant did that act willfully;
The act must be willful. 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.
Example: If Ron and Karen are having a conversation and Bob pushes Ron into Karen, then Ron’s application of force was not willful. It has to be a willful act by the individual applying the force.
3. The defendant must be aware that their acts can cause the damage.
4. When the defendant acted, had the present ability to apply force to a person.
Example: If Darin is standing 100 yards away from Victor and says “I am going to throw this huge rock at you” then Darin did not have the present ability to apply force to Victor. The present ability must be there in order for it to be an assault.
It should be noted that the Government is not required to prove that the defendant actually intended to use force against someone when (he/she) acted. No one needs to actually have been injured by the defendant’s act.
But if someone was injured, you 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.
Also, Voluntary intoxication is not a defense to assault. This means that just because you were intoxicated that does not negate the fact that you assaulted someone. One cannot become intoxicated then later try and use that as a defense to assault.
Self Defense is a defense to assault.
Example. Victor runs up to Darin and starts punching him. Darin pushes and punches Victor in order to escape the situation. Because Darin acted in self defense, he cannot be convicted of assault or battery.
If one consents to the touching, or if the touching is by accident then these are valid defenses to assault. These are sometimes hard to prove and often it will take an experienced trial attorney to be able to explain these facts to the jury.
Parental right to discipline a child
If you are charged with assault after disciplining your child, you may be able to raise this defense.
Penal Code 242 PC
A battery is any willful and unlawful use of force or violence
upon the person of another.
It can be any willful and unlawful touch that is harmful and/or offensive. The slightest touch can trigger a battery allegation if it is done in an angry or offensive manner.
To be convicted of battery it must be shown that the defendant willfully an unlawfully touched another in a harmful or offensive manner.
Much like assault this action has to be willful which means that it cannot be by accident and it has to be an action taken by the individual.
Harmful means any action that causes pain to another but that is not the only standard. This can also be offensive which means that any conduct that a reasonable person may find offensive.
A battery can be committed to a person or anything attached to the person.
Example: If Ron is on a horse and Karen runs up and hits the horse causing Ron to fly off and be injured, this can be considered a battery. If a women has a purse and a man rips it from her shoulder causing her injury an in an offensive manner, this can be considered a battery. If an individual grabs something from another that they are holding, this as well can be considered a battery.
It should be noted that if some commits an assault or battery on a police officer, this charge may be heightened.
The defenses to Battery are the same defenses to assault as seen above.