Assault With a Deadly Weapon

Criminal Defense Lawyer in San Diego

The crime of assault with a deadly weapon is defined in California Penal Code §245(a)(1) as Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury. If you are facing these charges, consulting with a San Diego criminal defense attorney immediately is essential if you are to avoid a conviction that can seriously affect your life.

 If you were arrested for violating Penal Code §245(a)(1), were taken to jail, treated like a common criminal, and now you're out on bail , you may be asking yourself these questions;

• How can I be charged with assaulting someone with a deadly weapon when I didn't even use a weapon?
• How can I be charged with a felony when what happened was just a regular old fistfight?
• How can I be charged with Assault when I never actually hit anyone?

The answers to those questions will probably surprise you.  Even if you didn't brandish a weapon, or even make actual physical contact with the alleged victim, you can be charged with the crime of Felonious Assault with a Deadly Weapon.

California Penal Code §240 Defines Assault as:

An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

The crime of Assault, in essence, is the attempt to perform an act likely to result in the application of force to another person. There is no requirement that the assault result in an actual application of force to another person, only the attempt and present ability to use force are required. So, even if you didn't actually strike or hurt the alleged victim, you can still be charged with Assault.

If you are wondering how you can be charged with Assault with a Deadly Weapon, under Penal Code §245(a)(1), even though you never brandished an actual weapon, the statute also applies to assaults committed "by means of force likely to produce great bodily injury"; California Penal Code §245(a)(1) criminalizes:

(a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Great Bodily Injury is defined by Penal Code §12022.7 as:

(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.

Therefore, if you have been charged under Penal Code §245(a)(1), and no weapon is involved, law enforcement is alleging that the assault was committed in a manner likely to produce significant or substantial physical injury. As you have discovered the hard way - in California you can be accused of committing an Assault with a Deadly Weapon, even when no weapon is alleged to have been used. It gets worse quickly if an actual firearm is alleged to have been involved, with mandatory custody upon a conviction.

Defending Assault with a Deadly Weapon Charges

As Assault with a Deadly Weapon can be alleged as a either misdemeanor or felony, and the crimes is punishable by prison, probation and/or jail, depending on many factors involved, there exists wide latitude as to how the case can be alleged, settled or punished. Law enforcement in San Diego County takes allegations of Assault very seriously, and often prosecutes defendants to the fullest extent of the law. If charged with violation of Penal Code §245, even for a first offense, you are in jeopardy of going to jail or prison. Furthermore, Assault with a Deadly Weapon is a "Strike" offense under the California "Three Strikes Law," unless the assault did not involve a weapon and did not actually result in great bodily injury.

In assault cases, often the credibility of witness recollections can be attacked because assault crimes are typically preceded by consumption of alcohol by witnesses, the defendant and victim. Also, under certain circumstances, assaults can be defended as lawful as the reasonable use of self-defense against an aggressor. As the facts involved in an assault case usually happen quickly, and memory is subjective, eyewitness accounts of an assault case can often differ widely. The facts of your case need to be investigated aggressively, thoroughly and without delay after your arrest by a neutral and focused private investigator. Don't trust the police to protect your rights, when they already consider you a suspect, or have arrested you as a defendant. Call T he Law Office of Marc S. Kohnen and make sure that your rights are protected and your case gets the investigation and attention it deserves.

Contact a San Diego criminal defense lawyer from the firm today to protect your rights if you have been charged with assault with a deadly weapon.