LA Criminal Lawyer Explains California Aggravated Assualt Laws

Assaultive crimes are always serious due to their violent nature.  Even the slightest touch can result in charges for assault or batter.  Previous articles have focused on California's violent crime laws and domestic violence laws.  This article takes a closer look at several different penal code sections that would amount to "aggravated" assault.  These include:  Assault with a Deadly Weapon (PC 245(a)(1)), Assault by means likely to produce Great Bodily Injury ("GBI") (PC 245(a)(4)), Assault with a Firearm (PC 245(a)(2), Assault with an Automatic Weapon/Assault Rifle (PC 245(a)(3), and Battery Causing serious bodily injury (PC 243d).

ASSAULT WITH A DEADLY WEAPON ("ADW")
California law makes it a crime to commit an assault on another person with a deadly weapon or instrument (other than a firearm).  ADW is a "wobbler" meaning that it may be punished as a misdemeanor or as a felony. As a felony, ADW is punishable by imprisonment in the state prison for two, three, or four years.  As a misdemeanor, it is punishable by imprisonment in the county jail for not exceeding one year.  The assault portion requires that the government prove the defendant committed an act that would directly and probably result in the application of force to another person.  As to what constitutes a deadly weapon, examples can include: firearms, explosives, knives, bricks, automobiles, etc.  This is a factual question for the jury, and it is vital to properly get the evidence presented and argued.


ASSAULT WITH A FIREARM / MACHINE GUN
California law makes assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.   Any person who commits an assault upon the person of another with a machinegun, an assault weapon, or a .50 BMG rifle shall be punished by imprisonment in the state prison for 4, 8, or 12 years.


ASSAULT BY MEANS LIKELY TO PRODUCE GREAT BODILY INJURY
Assault by "means likely" to produce GBI is a very broadly defined law, that unfortunately leaves open a lot of discretion.  Not only is GBI hard to define on its own, whether an act was likely to produce an injury in that poorly-defined category is utter nonsense.  This highlights the importance of having aggressive and persuasive representation.  If the case goes all the way to trial, your attorney will need to guide the jury in determining what kind of conduct is "likely" to produce GBI beyond a reasonable doubt.  Correctly explained, this standard is very difficult for the prosecution to prove.  Without a strong defense, the prosecution may use the ambiguity to their advantage.  If you or a loved one has been overcharged with an assault, contact us now for a Free Consultation with a Los Angeles Criminal Defense Attorney.


BATTERY CAUSING SERIOUS BODILY INJURY
PC 243(d) covers battery causing serious bodily injury.  Battery is simply the unlawful touching of another person.  There is substantial overlap between PC 243(d) and PC 245(a)(4), but PC 243(d) is often easier for prosecutors to prove.  "Serious Bodily Injury" is defined differently than great bodily injury.  PC 243(d) is a wobbler, punishable as either a misdemeanor or felony.  As a felony, it is punishable by up to 4 years county jail (not prison, like with PC 245(a)(4)).  This is a serious charge that can sometimes be charged in situations where an injury actually resulted from an accidental touching. 


GREAT BODILY INJURY
Great Bodily Injury ("GBI") is defined by California Penal Code Section 12022.7, “great bodily injury” as “significant or substantial physical injury.”  Examples include, broken bones, nerve damage, brain injury, paralysis, significant bruising, third degree burns and other injuries that are more than a slight injury.  This is an ambiguous standard and is often charged in cases where the injury is not as severe, and used to leverage a guilty plea from a defendant.  Because many aggravated assault cases do involve an injury, it is important to note that the DA may add a GBI allegation at any time.  A GBI enhancement adds a consecutive 3 to 6 year prison sentence, and is a strike under California's Three Strikes Law.


DEFENSES TO AGGRAVATED ASSAULT:
Self-Defense:  The government has the burden to prove, in all assault cases, that the defendant was not acting in self-defense.  A self-defense argument is often the best defense in an assault case, if the evidence (including the defendant's own testimony) can support it.  If the defense can show that the defendant was acting in self-defense, there cannot be a conviction.

False Accusation:  There are many reasons for false accusations.  Exposing a false accusation requires skilled cross-examination, thorough investigation of the case, and putting on the right witnesses to expose the accuser's lies and character to lie.

Mistaken Identity:  Eyewitness testimony is inherently unreliable.  People are simply not very good at remembering the face of a stranger they encountered for a short time.  It is not uncommon in an assault case for the wrong person to become a suspect and then defendant.  It is important to review any in and out of court identifications and, where appropriate, test a witness' ability to identify the true assailant with the use of lineups, expert witnesses, arguments of suggestive identifications and more.

Consent:  This defense is not particularly common, but my be relevant to an injury occurring while playing a contact sport, engaging in a physical contest, or participating in consensual rough sexual activity.  Consent does not have the same weight that it once did, when our nations founders would regularly engage in dueling, but it is nonetheless important to be aware of this defense and its limited applicability.  This defense often has a special application in domestic violence cases, where seemingly violent acts were consensual as part of a sexual act.

Insufficient Evidence:  Pointing out flawed and lacking evidence is important for the defense in every case.  Juries are inclined to hold police investigators in high regard because of TV shows and movies that paint them as brilliant crime-stoppers with infinite resources and exceptional technology.  Thus, it is vital to expose the police for the lazy, under-trained, and overworked humans that they are.  Juries can be very responsive to finding out that the detectives in a case did not look for fingerprints, video footage, seek out additional witnesses and more.

Lack of Present Ability:  Because assault crimes to not require any actual touching, assaults may be achieved with mere threats.  Pointing a loaded gun, for example, is assault with a firearm.  Pointing an unloaded firearm is not, because the gun cannot shoot the victim, therefore the defendant lacks the present ability to carry out harm to another person.

Violent Crimes Information
Attempted Murder Information
Domestic Violence Information

By Nicholas Loncar