Assault With a Deadly Weapon

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San Diego Assault With a Deadly Weapon Attorney

Vikas BajajAre you facing potential criminal charges for assault with a deadly weapon? The consequences of a conviction for this serious crime can change your life forever. If you’re facing criminal charges, it is important to hire an experienced criminal defense attorney to handle your case. The prosecution will begin to investigate your case the moment the police arrest you. Contact the San Diego office of Vikas Bajaj today.

How are Assault and Battery Different?

The crimes of assault and battery can overlap. It is important to understand, however, they are two distinct crimes. An assault is the threat and/or attempt to physically injure another person. A battery is the act of making unwanted or offensive contact with another person against his or her will. So, an assault is an attempt to commit a battery, and a battery is a successful assault.

Assault With a Deadly Weapon

The crime of assault can be aggravated when you use a deadly weapon or force likely to injure another person. When a crime is aggravated it is charged as a more serious offense and carries harsher criminal penalties. There are two ways prosecutors will charge you with the crime of assault with a deadly weapon.

First, you can be charged under California Penal Code 245(a)(1), (2), or (3) for committing an assault with a deadly weapon. Any instrument or object that is capable of causing serious bodily harm can be a deadly weapon for the purposes of this crime. Deadly weapons that may trigger charges under 245(a)(1) include:

  • unloaded firearms,
  • writing instruments,
  • tools,
  • daggers,
  • swords,
  • dirks,
  • knives,
  • vehicles, and
  • animals.

A prosecutor must prove that:

  1. you used a deadly weapon to commit an act of assault, and
  2. the act was likely to cause personal injury or harm to another person.

Second, you can be charged under California Penal Code 245(a)(4) for committing an assault with force likely to produce great bodily injury. This means that you can be charged with the crime of assault with a deadly weapon even if you do not use a deadly weapon. When you commit an assault with such force that the victim is likely to suffer an injury or harm, the assault can be aggravated under 245(a)(4).

When could you face charges for this type of assault? Imagine that you are trained in the art of Krav Maga. If you attempted to apply force to another person with skill and technique that would be likely to cause great bodily injury, you could be charged this type of aggravated assault. While hands, feet, and other body parts are not generally treated as deadly weapons, your ability to use them in a forceful (and specialized) manner can cause this to be an exception to the rule.

A prosecutor will be required to prove that you:

  1. intentionally committed an act that would probably result in the application of force to another person;
  2. the force was likely to cause serious bodily harm,
  3. you knew that the act was likely to result in serious bodily harm, and
  4. you had the present ability to apply this force.

One requirement for the crime of assault – including assault with a deadly weapon – is that you have a present ability to cause harm. If you are standing next to someone in a bar, raise your first, and swing it in their direction you will probably be considered to have a present ability to cause harm. If, however, you are standing 100 yards away from someone and throw a rock or bottle in their direction, you probably will not be considered to have a present ability to cause harm. You cannot be convicted of assault if you lack the apparent and present ability to cause harm.

Penalties for Assault with a Deadly Weapon

Assault with a deadly weapon can be a misdemeanor or a felony. The penalties you face for charges of assault with a deadly weapon will depend on:

  1. the type of weapon used in the assault,
  2. the severity of the offense,
  3. whether the victim was a law enforcement officer or firefighter, and
  4. your existing criminal record.

Here’s how these factors can impact the severity of the charges and penalties you may face.

Weapon: Not a Firearm: If you commit an assault with a deadly weapon other than a loaded firearm, machine gun, or assault weapon, a conviction can be punished by one year in jail, two to four years in prison, and/or a fine of $10,000.

Weapon: Firearm: If you commit an assault with a firearm, a conviction can be punished by 6 to 12 months in jail, two to four years in prison, and/or a fine of $10,000.

Weapon: Machinegun, Assault Weapon, or .50 BMG Rifle: If you commit an assault with a machinegun, assault weapon, or .50 BMG rifle, a conviction can be punished by as long as 12 years in prison and/or a fine of $10,000.

Weapon: Semi-Automatic: If you commit an assault with a semi-automatic weapon, a conviction can be punished by three, six, or nine years in prison.

Force Likely to Cause Great Bodily Harm: If you commit an assault with force likely to cause great bodily harm, a conviction can be punished by one year in jail, two to four years in prison, and/or a fine of $10,000.

Victim: Police Officer or Firefighter: If you commit an assault with a deadly weapon of any kind or with force likely to cause serious bodily injury and the victim of your assault is a law enforcement officer or firefighter in the line of duty, a conviction can be punished by as long as 12 years in prison, depending on the weapon used.

Other aggravating factors: If other aggravating factors are present, or if you have a prior criminal record for violent offenses, the prosecution will likely pursue the most serious charges and harshest criminal penalties.

A conviction for assault with a deadly weapon can also result in the loss of gun ownership privileges. A felony conviction for assault with a deadly weapon will count as a “strike” for the purposes of California’s Three Strikes Law.

Defenses to Assault With a Deadly Weapon

Your attorney will argue any defense that may be appropriate for your case. Defenses to assault with a deadly weapon include:

  1. Actual innocence;
  2. False accusation;
  3. Self-defense or defense of another person;
  4. Lack of required intent;
  5. No present ability to inflict harm;
  6. A deadly weapon was not used in the alleged assault.

Fighting Charges of Criminal Assault With a Deadly Weapon

As soon as you are arrested for a crime the prosecution will attempt to get you to (1) admit to a crime, or (2) say something that can be used against you in any future criminal proceedings. It is important to remain silent and ask for a lawyer. Vikas Bajaj has represented thousands of criminal defendants in the greater San Diego area and understands the stress that can accompany an arrest.

He uses an aggressive pre-investigative approach. This approach often results in getting the charges against his clients dismissed or reduced. Contact his office today for a free consultation if you would like to learn more about how San Diego assault defense attorney Vikas Bajaj can help you.