It’s important to note that the crimes of assault and battery can overlap, however they are two distinct crimes. Here is the difference. An assault is the threat and/or attempt to physically injure another person. A battery is the act of actually 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.
Within the crime of assault, there are variations. The crime of assault can be aggravated when a deadly weapon is used or when force is 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.
A deadly weapon can be any instrument or object that is capable of causing serious bodily harm; it doesn’t have to be just a gun or knife. Deadly weapons that may trigger charges under 245(a)(1) include:
For a successful prosecution, A prosecutor must prove that:
You can also 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 martial arts.
If you attempted to apply force to another person with learned skill and technique that would be likely to cause great bodily injury, you could be charged with 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.
To be convicted under these circumstances a prosecutor will be required to prove that you:
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 and take a swing at them, 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 something 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.
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:
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: Machine gun, Assault Weapon, or .50 BMG Rifle: If you commit an assault with a machine gun, 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.
You should know that a felony conviction for assault with a deadly weapon will count as a “strike” for the purposes of California’s Three Strikes Law.
An experienced San Diego assault with deadly weapon lawyer like Pedro Bernal will argue any defense that may be appropriate for your case.
Defenses to assault with a deadly weapon include:
As soon as you are arrested for a crime police and 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 vitally important to your defense that you remain silent and immediately ask for a lawyer.