The Crime of Assault with a Deadly Weapon
Sec 245(a)(1) of the California Penal Code
states that the crime of assault with a deadly weapon is committed when an individual assault another and a deadly weapon was used in the commission of the assault.
Simply put, there needs to be proof that simple assault was committed. This crime of simple assault is committed when there is an attempt to commit a violent act with the means to commit the criminal act. The difference here is that the crime is committed using a deadly weapon.
A deadly weapon is defined as an object, instrument, or weapon capable of producing or result in death or great bodily injury. Hands and feet are not considered as deadly weapons while innocent objects can be considered as a deadly weapon. These include beer bottles used in a melee, threatening to use a sharp object or pencil to stab another, or ramming a car into another person or car. This expands the definition of what a deadly weapon is as intended for its use during the incident determines its character in the commission of the crime.
This crime is committed through the use of deadly weapons, instruments other than firearms, or any means of force likely to produce great bodily injury. While hands and feet are not considered as deadly weapons when a body part can cause great bodily harm to another, then the crime committed becomes aggravated assault. An example would be repeatedly punching an individual while being tied to a chair.
Great bodily injury, under California law, is any significant or substantial injury inflicted on another person. These include brain damage or paralysis but the injuries need not be permanent. Determination of great bodily injury though is determined on a case to case basis, with factors such as the severity of the injury, the pain inflicted, and/or any medical attention extended for the injuries sustained.
For the crime of assault with a deadly weapon, California Penal Code Sec 245(a)(1) states that this can be prosecuted either as a misdemeanor or felony offense. The determination of the degree of the crime committed depends on the weapon or instrument used in the commission of the crime, the severity of the sustained injuries and the nature of the victim. The following are the imposable penalties depending on the crime charged:
- For misdemeanor assault with a deadly weapon other than a firearm resulting in great bodily injury, the imposable penalties are summary probation of up to five (5) years, up to one year in county jail, payment of fines amounting to $10,000 and restitution to the victim as well as confiscation of the weapon used in the assault together with anger management therapy and community service;
- For misdemeanor assault with a deadly weapon using a firearm resulting in great bodily injury, all the previous applicable penalties are imposable except the jail sentence is increased to a minimum of six months;
- For felony assault with a deadly weapon producing great bodily injury, the imposable penalties include up to four years in state prison, payment of fines amounting to $10,000, restitution for the victim, recording of a strike under the Three Strikes Law and confiscation of the weapon.
- For felony assault with a deadly weapon using assault weapons, the imposable penalties include service of up to twelve years in state prison as well as all the other penalties imposable for felony assault.
- For felony assault with a deadly weapon using a firearm, the imposable penalties include up to nine years in state prison as well as the other penalties imposable for felony assault.
When the victim of the assault is an on-duty police officer or firefighter, regardless of the use of a firearm, then the imposable penalties are increased to five years. When using an assault weapon or firearm, then the penalty would be increased by twelve years in prison together with all the other imposable penalties for felony assault.