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Aggravated Assault (Cal. Pen. Code 245(a)(1))
What is assault?
In California, to convict you of “simple assault” under Penal Code Section 240, the prosecutor must prove that you made an unlawful attempt to commit a violent injury upon another person, combined with the present ability to do so. (A battery is a “completed” assault, that is, an attempt carried out to fruition).
What is assault with a deadly weapon?
Aggravated assault (or assault with a deadly weapon (ADW), as opposed to “simple,” is defined under California Penal Code Section 245(a)(1). To prove that you are guilty of ADW, the prosecutor must prove that you committed assault with a deadly weapon or by means of force likely to inflict great bodily injury on another person.
Is an ADW always charged as a felony?
An ADW charge is considered a “wobbler,” that is, a crime that the prosecution has the discretion of filing either as a felony or a misdemeanor. They will usually base their discretion to fil a California aggravated assault charge as a felony or a misdemeanor on the following factors:
– the instrument or type of weapon used to carry out the alleged ADW,
– whether the person you are accused of having assaulted suffered an injury (and the seriousness of that injury)
– whether that person is a “protected person,” that is, an officer, firefighter, etc.
How Can McGregor & Ernenwein Defend Me Against Assault Charges?
Our Torrance assault defense attorneys, South Bay “assault with a deadly weapon defense” attorneys have employed their knowledge, skill, experience (over 53 combined years) in the vigorous defense of clients charged with simple assault and aggravated assault (ADW). Like other charges, an accusation of assault can be the result of a vindictive accuser who may have exaggerated or even fabricated the facts that led to your arrest or being investigated. Our attorneys are very skilled at uncovering such deceit and they will fight vigorously to have you absolved. Additionally, there may be “affirmative defenses” available to you, such as self-defense, or defense of others, that would have justified your actions.
How Does the Prosecutor Prove that I Committed an Assault with a Deadly Weapon?
In order to convict you of assault with a deadly weapon (under California Penal Code 245(a)(1)), the prosecution must prove two elements:
1) that you assaulted another person and
2) that you perpetrated the assault with the use of a deadly weapon or some means of force likely to result in great bodily injury (known as “GBI” for short)
It is not necessary for the prosecution to prove that you actually injured the alleged victim or that you even made physical contact with him or her. It is sufficient that you (a) had the ability to carry out the assault and (b) that you harbored the intent to injure the alleged victim.
What Qualifies as a Deadly Weapon?
When most people think of deadly weapons, they imagine a knife or a firearm. But, contrary to that belief, all kinds of objects (that would otherwise have harmless, non-criminal purposes) can fit the category just as well. (However, hands and feet have not been deemed to be “deadly weapons” because they are not objects external to one’s body.)
“As used in section 245 [of the California Penal Code], ... a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” People v. Lochtefeld (2000), 77 Cal.App.4th 533, 538.
Lunging at someone with the sharp end of a pencil, swinging a skateboard, spraying a harmful or toxic chemical substance, swerving your car in the direction of the alleged victim, dropping a cement block or a bottle of paint from a freeway overpass, using your belt to choke someone,...all of these and more are examples of assault with a deadly weapon. All of these items...the bottle, pencil, and vehicle...are perfectly innocent when used normally. The common denominator among so-called deadly weapons is that (a) they are extraneous to the human anatomy, that is, something other than a body part and (b) they carry the ability to create significant injury upon another person when used in a threatening fashion.
What about the part about “means of force" likely to produce great bodily injury? What does that mean?
As stated earlier, body parts (e..g, hands, feet, etc.) are not considered deadly weapons because they are not extraneous to the human body. Having said that, you can still be charged under California Penal Code 245(a)(1)
if you used your body to cause great bodily injury upon another. The reason for this is because Penal Code 245(a)(1) punishes not only those who assault people with deadly weapons and objects (other than firearms), but also persons who commit assault with “any means of force likely to produce great bodily injury.” Therefore, if you punch, bite, scratch, kick, forcibly pull hair, drag or choke somebody, you can be liable for “assault with a ‘GBI’ allegation.”
What qualifies as “as great bodily injury”?
According to California Penal Code Section 12022.7, “great bodily injury” is defined as “significant or substantial physical injury.” For example, broken bones, nerve damage, brain injury, paralysis, significant bruising, third degree burns or other large-scale injuries would fit the definition of GBI. That does not mean that prosecutors do not charge slight injuries as “GBI” allegations; the slightest bruise or mark may trigger a 245(a)(1) charge. The reason is that the alleged assault does not actually have to result in GBI; it is sufficient that the assault be capable of resulting in GBI.
However, if the injury you are accused of having inflicted on the alleged victim is insubstantial or otherwise falls short of significant, then our Torrance assault defense lawyers can argue that it does not rise to the level defined by the California legislature and, therefore, does not qualify as aggravated assault under 245(a)(1).
What are the consequences of a “great bodily injury” allegation?
If you are convicted of assault causing great bodily injury, the prosecutor will charge you with an enhancement which will result in higher sentencing. In other words, your California State Prison sentence be augmented by 3 to 6 years. It is also a Strike under the Three Strikes Law, subjecting you to 25 years to life in the state prison upon your third strike conviction thereafter.
Punishment and Penalties: What are the Consequences of an Aggravated Assault (245(a)(1)) Conviction?
Assault with a deadly weapon / assault with great bodily injury (that is, a violation of Penal Code 245(a)(1)) is considered a “wobbler.” In other words, it can “wobble” between a felony or a misdemeanor depending on how the prosecutor decides to file the case. Some factors which go into the prosecutor’s determination are as follows:
1) the type of the weapon or instrument that you allegedly used to carry out the assault;
2) the severity of injuries (if any) suffered by the alleged victim;
3) the nature of the alleged victim, for example, if he or she is a firefighter or peace officer.
Penalties for a conviction of aggravated assault can include one year in the county jail, informal probation for up to 5 years, a $10,000 fine, restitution to the victim, for example, any medical bills sustained, confiscation of the weapon used in the offense, and more. Felony aggravated assault penalties can range from 2 to 4 years in the California State Prison and a “strike” on your criminal record, resulting in exacerbated sentencing (“double term”) should you be convicted of a future offense.
And, of course, if you are charged with a third felony with two prior strikes under your belt, you will be deemed a "third striker,” subjecting you to a minimum of 25 years to a maximum of life in the California State Prison.
What defenses can McGregor & Ernenwein use, on my behalf, against an ADW charge?
We have found, in our combined 50+ years of experience defending clients against this charge, that many defendants are the victims of false accusations by persons seeking to levy charges as a form of retaliation or out of some personal vendetta. Our defense team can thoroughly investigate the accusing party or parties to determine whether (s)he or they are being deceitful in their accusations and uncover their false accusation against you.
Because there is no requirement that the alleged victim sustain any injury in connection with an ADW charge, it is easy to be falsely accused of and wrongfully arrested for this crime. This is one of the reasons why it is critical to consult with a skilled California criminal defense attorney. Below are examples of the types of defenses that such an attorney could present on your behalf.
If you were physically incapable of carrying out the assault, for example, if you threatened to fire at the alleged victim with an unloaded firearm, our Torrance ADW defense lawyers will argue for the dismissal or reduction of your charges on this basis.
Or perhaps you were acting in self-defense or defending a loved one. Our criminal defense attorneys can advance any available affirmative defenses in the pursuit of getting your ADW charge thrown out.
The consequences of an ADW conviction are terrifying. Don’t let yourself be caught up in a whirlwind of legal penalties. Put McGregor & Ernenwein ADW defense lawyers on your side. Call us now at 310-782-0552.
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Law Offices of McGregor & Ernenwein
Crenshaw Professional Building
1405 Crenshaw Boulevard
Torrance, CA 90501
Phone: 310-782-0552
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