Actual Case #1
In People v. David M. - Case No. FBA1100242-02, my client was charged with Assault with a Deadly Weapon (knife) with added enhancements of Great Bodily Injury and Gang membership AND he was also charged in Count 2 with the substantive gang crime of being a member of a criminal organization. At the time of the alleged offense, my client was a Captain in the United States Army stationed at Ft. Irwin. He was out at a bar having drinks with a friend of his who was also stationed at Ft. Irwin as a Sergeant. They were at Molly's Pub in Barstow minding their own business when a local Barstow resident who was also in Molly's became drunk, loud and belligerent. The drunk accused my client of trying to hit on his date. My client brushed off the allegations but the drunk didn't let it go. Eventually all 3 parties made their way outside where the drunk claims he was sucker punched by my client and then stabbed twice by either my client or his friend. At the time of this event my client and his friend were wearing vests associating them as members of the Vagos Motorcycle Club. In a case that finally went to trial 3 years after the alleged incident and one in which the "victim" took the stand and testified under oath "I don't know why the co-defendant is here being tried, he didn't stab me, Mr. Voll's client, David M. stabbed me," I was successful in achieving an acquittal on the substantive gang crime and a vote of 10-2 for Not Guilty on the Assault with a Deadly Weapon. I convinced the jurors of what really happened which is that the "victim" stabbed himself as he ran away from the Captain and Sergeant and along a chain link fence after he punched the Captain in the face when he wasn't looking. The co-defendant was acquitted of all charges. David M. who had long since moved away from the Barstow area did not want to re-try the remaining count and instead accepted a reduced charge to a simple misdemeanor ADW with time served. The prosecutor wanted 17 years of prison for my client and in the end all they got was a 3-week trial that cost the taxpayers of San Bernardino about $400,000.00 and a plea to a misdemeanor.
Actual Case #2
In People v. Frank L. - Case No. BA418245, my client was charged with Assault with a Deadly Weapon (switchblade) with the added enhancement of Great Bodily Injury, having a Strike Prior, having a 5 Year Prison Prior and One 1 Year Prison Prior. He was looking at a minimum of 17 years in State Prison. The facts were simple; my client was accused of acting out at strip bar in Hollywood on Hollywood Boulevard by being drunk, challenging people to fight, and intimidating patrons of the bar. When he was asked to leave the bar he was alleged to have stabbed a man outside on the street in front of the bar when he then fled the scene. LAPD arrived soon thereafter, my client was observed in the area walking up Ivar Street which was clearly shown on surveillance video across the street. The defense was mistaken identity. We announced ready for trial as my client and I were prepared to take the case all the way to Jury Trial. The case was dismissed today (January 27, 2016) after the Deputy D.A. announced unable to proceed. My client walked out of the Foltz Justice Center (Criminal Courts Building) a FREE MAN.
Actual Case #3
In People v. Daniel U. - LA081101, my client was charged with Assault with a Gun and Criminal Threats. Both charges being strikes. My client also suffers a juvenile strike prior which makes this case a serious one. He is alleged to have brandished a gun at this fool who ripped off my clients cousin for some bike parts. It's really a chicken shit beef because the "victim" was threatening my clients cousin by sending him photos of a gun and texting him that he was going to beat his ass. But my client is the one who gets arrested even though a gun was never found and the identification of the person who is alleged to have a gun is shaky! The Deputy D.A. dismissed the case on the trial date and refiled it under a new case number as they needed to clean up their preliminary hearing testimony. Stay tuned for the results on the new filing.
Actual Case #4
In People v. Walter B. - FVI116000990-02, my client was charged with Felony Assault with force likely to produce great bodily injury. He was accused of smacking this punk on the side of his head when the fool started to talk loud at a BBQ party that my client was hosting. The kid fell to the ground and he testified at the preliminary hearing that my client put his left hand across the kids neck and cocked his right hand back as if to punch him in the face. The problem is that it was all a lie. See, the kid's Daddy is some ex-LAPD cop who has retired to the High Desert where this alleged incident occurred. Ex-cop Daddy doesn't like my client and the folks he is friends with. My client didn't even have an arrest prior to this bogus charge being filed against him and my client is in his 50's. Anyway, with a little digging and some minor private investigator work we were going to throttle this kid in front of a jury by easily showing that he made up the whole story. I had witnesses lined up to testify that there was no altercation or fight at this party and I was prepared to show a jury that pictures taken of my client at this BBQ clearly contradicted what the "victim" was complaining about. All in all, the D.A. was going to get their ass handed to them in front of a jury so they dismissed the case on June 17, 2016. My client is still a free man!
Actual Case #5
In People v. Noor K. - Case No. BA482163, my client who is Muslim, was initially accused of the very serious sex crime of assault to commit rape of a homeless paraplegic Muslim on the Southeast corner of 4th Street and Vermont Avenue in broad daylight on a week day. After a vigorous cross examination of the arresting officer at the preliminary hearing, it was clear the LAPD had embellished in their police report and that this case was never about raping a homeless paraplegic Muslim on the Southeast corner of 4th Street and Vermont Avenue in broad daylight. The Judge dismissed that serious sex crime charge which left assault with a deadly weapon and resisting arrest causing injury as the last remaining counts. The event was videotaped from a location across the street. The case went to trial on both felony counts. The jury found my client Not Guilty of both felony counts but found him guilty of the two lesser counts of simple assault and resisting arrest. Outcome: probation and everyone is happy.
THE LAW
When an individual physically attacks another person with a physical object that can cause bodily injury or death due to its construction or design, he or she has committed assault with a deadly weapon. Since the use of such a weapon puts the targeted party at serious risk of injury, every state in the United States has codified assault with a deadly weapon as a felony. Sometimes, you'll hear attorneys and judges say “ADW” instead of assault with a deadly weapon. In California, ADW is a wobbler which means that it could be filed by the District Attorney as a felony or a misdemeanor. If the accused has no prior criminal record, the weapon was not a gun, no gang allegation is alleged, and the "victim" did not suffer great bodily injury, then it is likely that the crime would be charged as a misdemeanor.
Deadly Weapons
There is no specific list of objects that are defined as “deadly weapons”. Deadly weapons refer to all sorts of objects that can cause significant bodily harm or even result in death. Examples are an automobile or a golf club. Certain states have decided that guns and knives are considered to be deadly weapons “per se”. This means that a prosecuting attorney does not need to show evidence of the object's potential to cause a serious injury or death. There are certain objects that are not deadly by their design but they can be used in a violent manner that qualifies them as deadly weapons. Examples of such objects include canes, sneakers, stones and even Swiss army knives.
There are even sections of the human body that courts consider to be deadly weapons. For example, the arms, knees and feet can be used in a manner that causes serious injuries and death. Even the teeth can be considered to be a deadly weapon. This seems odd but in a specific scenario it makes sense. Consider someone who is HIV+ having sex or biting into another person. Such a defendant can be charged with either assault with a deadly weapon or aggravated sexual assault.
Assault With A Deadly Weapon In The State Of California
California's Penal Code (section 245) explains the state's law on assault with a deadly weapon. This offense is an assault on another party with a deadly weapon, another type of instrument or a means of force that has considerable potential to inflict bodily injury on the targeted party. Examples include chasing after another person with an ax, swinging a bass guitar at someone's face, pointing a gun at another person, attempting to stab someone with a broken piece of glass and driving a vehicle into another person regardless of whether they are on walking or sitting in a vehicle.
How Can A California Prosecutor Prove That Assault With A Deadly Weapon Has Taken Place?
A prosecutor must prove a number of facts in order to show that a defendant is guilty of assault with a deadly weapon. Let's take a look at these elements.
The defendant willfully assaults another party with a deadly weapon. California's Penal Code describes penalties for those who use a deadly weapon, those who use an instrument besides a firearm and those who employ a means of force that is likely to cause significant bodily injury.
The prosecutor also must show that the defendant used force with a weapon. This means that it must be proven that the defendant committed an act with a deadly weapon. Most people consider a deadly weapon to be a gun but it can also be any object that is used in a manner that is likely to cause significant harm to another party. This includes a vehicle, an animal like a dog, sharp objects, pointy objects like pencils, broken glass or high heel shoes. The definition even stretches to objects that are used in a manner that can cause harm to another party.
Force Without A Weapon
Force without a weapon occurs when a defendant performs an act that is likely to cause a direct application of force to another party. The force must also be likely to cause significant bodily injury. As an example, one can still be charged under California's Penal Code Section 245 when using force against someone without employing a deadly weapon that is likely to inflict significant harm on another party. Examples of force without a deadly weapon are wide ranging. They include malicious actions like choking, scratching, biting, kicking, punching, hitting in any manner and pushing. The defendant must have acted under the impression that a reasonable person would believes that the act would directly and likely cause force to another person. When the defendant acted, he had the ability at the time to apply force that would cause significant bodily injury with the use of a deadly weapon besides a firearm, semiautomatic, assault weapon or machine gun.
“Great” or significant bodily injury is defined as substantial physical injury. This type of injury is more than minor or moderate in nature. When a person is injured by the act in question, the bodily injury along with the other evidence will be used in an effort to determine whether the defendant is guilty of assault and also help to determine the exact type of assault that he should be charged with. Examples of great bodily injury are broken limbs, lacerations or cuts that must be surgically stitched and crushed / broken / torn teeth.
Assault With A Deadly Weapon: Penalties, Punishment And Sentencing
Those who are convicted of assault with a deadly weapon in California will face severe penalties. This offense can be charged as either a felony or a misdemeanor. Those in the field of law often refer to offenses of this type to be “wobblers”. The prosecutor must decide whether he will charge it as a misdemeanor or felony based on a number of factors. He will consider the style of weapon or instrument that is used during the assault. He must also consider whether the alleged victim suffered an injury and determine how severe it is. Lastly, the prosecutor must determine if the alleged victim is considered to be a part of the “protected persons” category. This includes people like firefighters and police officers.
Defendants who use a deadly weapon (besides a firearm) or applied force that was likely to cause significant bodily injury will face a series of penalties. These include a “summary” style of probation of up to 5 years, a fine up to $1,000 and a county jail sentence of up to 1 year. Some defendants must pay the fine and also serve time in jail.
Those who use a firearm will face a number of penalties as well. These include summary probation up to 5 years, a sentence between 6 months and a full year and a fine up to $1,000. Sometimes, those who use a firearm for the assault will have to pay the fine and also serve time in jail.
Those who use a deadly weapon or force that is likely to cause great bodily injury can also face felony penalties. These include a sentence between 2 and 4 years in California's state prison, a fine up to $10,000 and a “strike” on the criminal record in accordance with California's “Three Strikes” Law. Those who used specific firearms will face penalties like a sentence of 4, 8, or 12 years in state prison, a fine up to $10,000 and a strike on the criminal record. Those who used other semiautomatic firearms will face penalties like 3, 6 or 9 years in state prison, a maximum of a $10,000 fine and a strike on the criminal record.
Those who assault individuals who fall in the protected category, like police officers, will face specific penalties as well. Regardless of whether the defendant used a firearm or not, if he had reason to know or did know that the harmed party was in the category of protected persons, he can face up to a 5 year jail sentence. If a firearm was used against a person in the protected category, the sentence can increase to anywhere between 4 and 12 years.
Related Offenses And Enhancements: Assault And Battery
Assault: Section 240 of California's Penal Code explains the word “assault” as an attempt to cause a violent injury to someone else. This is a lesser offense compared to assault with a deadly weapon. Those convicted of assault will have to pay a fine upwards of $1,000 or serve time in the county jail that does not exceed 6 months.
Battery: Section 242 of California's Penal Code states that one is guilty of battery if he willfully touched someone else in a manner that causes harm or offense and leads to a resulting serious bodily injury. Assault is the attempt to commit battery. They are not one in the same. An assault can actually occur without actual physical contact. Yet battery can only occur if an assault precedes it.
Assault With A Firearm on A Firefighter / Peace Officer
California's Pen. Code, §245(d) states that one who assaults a firefighter or peace officer with a firearm and is aware (or should reasonably know) that the other party is a firefighter or peace officer performing his duties, he will be punished in state prison for upwards of 4, 6 or 8 years.
Why An Attorney Is Critical For Those Charged With Assault With A Deadly Weapon
In several states, judges can impose sentences of varying lengths for those convicted of assault with a deadly weapon. While each state's unique laws limit the range of punishment, there are also numerous other factors that judges typically consider when determining punishment. He must take into account the victim's injury (or lack thereof), the defendant's age as well as his victim's age, the defendant's prior criminal record and the merit of the prosecution's case. Judges weigh each of these factors when determining a sentencing.
Our experienced criminal defense attorney Jeff Voll knows exactly how to use evidence in a manner that will result in the shortest possible sentence. In certain scenarios, we can even persuade prosecutors to drop the charges down to a misdemeanor assault. This is why defendants need the legal prowess of a skilled attorney who is familiar with this particular offense and the wide array of possible defense strategies. At the Law Offices of Jeff Voll our experienced attorney understands how judges and prosecutors have treated these types of cases in the past so we really do have an inside edge. If you have any questions or concerns, please do not hesitate to contact our office today.
