San Fernando Valley Assault with Deadly Weapon Lawyer
LEARN THE BEST STRATEGY IF YOU HAVE AN ASSAULT WITH A DEADLY WEAPON CASE
Assault with a deadly weapon is a strike under the California Three Strikes law if it is pled and proved as a felony and in my opinion requires the assistance of a top level criminal defense attorney.
Because it is a wobbler (it can be charged as a felony or misdemeanor) many times I have been successful in convincing the prosecutors to reduce the charge to a misdemeanor, then the Three Strikes Law does not apply and you are no longer facing a state prison sentence.
There are a number of defenses and tactics that can be employed by your defense attorney, depending on the circumstances of your arrest and the severity of the alleged crime.
The term “weapon” as far as these cases are concerned is broadly construed and can be just about anything under the right circumstances. Anything that can cause serious injury to the alleged victim will suffice for purposes of proving that you used a deadly weapon.
Also, in order for this offense to be a strike, the prosecutors must plead in their complaint that you used a weapon and you must admit it as part of a deal or it must be found true by a jury in order for you to have a strike on your record.
Obviously, guns, knives and billy clubs are weapons for purposes of an assault with a deadly weapon case. Also, things like feet, hands, elbows and other things that can be used to inflict serious damage are considered weapons in these cases if the prosecutor can prove it.
In these cases the types of successful defenses I have seen involve self defense, defense of others and of course mutual combat. But sometimes the person is guilty with an explanation.
This to me means they acted in an unlawful manner, but there were good reasons for their conduct that should be taken into consideration before they are saddled with a strike and a prison sentence.
In my opinion, only seasoned savvy defense attorneys should be dealing with these cases because they have the experience and the know how to defend these cases and make the right arguments that will make a difference to judges and prosecutors who are jaded and sometimes not very easy to deal with or convince that a client should be given a break.
LAW RELATED TO ASSAULT WITH A DEADLY WEAPONS CASES
In general terms, if someone threatens another person with what can be classified as a weapon, they are guilty of assault with a deadly weapon. One big area I see come up time and time again is when someone uses their car as a deadly weapon.
Prosecutors love to charge this as assault with a deadly weapon and really try and punish the offender. This is where I generally see the prosecutors going over board and trying to get too much out of a case and a set of circumstances.
Unless the defendant really tried to run the other party over, assault with a deadly weapons should usually not apply to cars in my opinion. Assault with a deadly weapon (AWD) is a serious crime and can result in long term imprisonment.
California Penal Code Section 240 defines “simple assault” as an unlawful attempt to commit violence on another person. California Penal Code Section 245(a)(1) defines assault with a deadly weapon or aggravated assault, as committing an assault with a deadly weapon likely to cause great bodily injury (example: blade, knife).
Surrounding circumstances include: the type of weapon/instrument used; whether the person assaulted was injured; and the status of the victim. ADW may result in prison or jail time, depending on the degree of the conduct and as Van Nuys Attorneys we do everything we can to prevent such harsh penalties.
CA Criminal Jury Instruction 875 For Assault with a Deadly Weapon
California Penal Code Section 245(a)1, assault with a deadly weapon, is a serious crime. Despite any conviction for it in any jail or prison that’s doled out by the judge, the defendant will serve 85% of it and they will have a conviction on the record for the rest of their life because of the Three Strikes Law.
In order to prove this charge, there are certain jury instructions that apply, and you really want to know those beforehand. You want to know those before the case starts because its imperative that if you’re going to try to defend a jury trial case, you need to know from a starting point what the prosecutors have to prove from the beginning, so that obviously you can negate any elements that they’re trying to prove.
Defendant Acted With a Deadly Weapon
So, what a jury will be read – and it’s pursuant to the California Criminal Jury Instructions 875 related to assault with a deadly weapon – which of course is Penal Code Section 245(a)(1), and they’re going to say the defendant is charged with a certain count with assault with a deadly weapon, and then the issue is going to be what type of a weapon is it.
So, to prove that the defendant is guilty with this particular crime, the people or prosecutors have to prove (1) that the defendant did an act with a deadly weapon, believe it or not, can be a gun – that’s obvious – it can be a knife – any type of a weapon. It can be a baseball bat. It can also be a car. It could be someone’s foot. It could be someone’s fist.
It just depends on how the person was using the weapon. If someone is stomping another person’s head with a boot, obviously they could be charged with assault with a deadly weapon. The defendant has to do some sort of an act – and that act has to be such an act that by its nature would directly and probably result in the application of force to another person.
So, that’s pretty clear – pull a gun and point it at somebody, try to run somebody over with a car, throw a knife at somebody – there’s a number of different examples you can come up with to fulfill that act element for purposes of assault with a deadly weapon in San Fernando Valley.
Also, typically (2) the defendant has to do the act willfully. It cannot be something where the person is drunk; it can’t be something where the person doesn’t know what they’re doing; it cannot be something where the person is not cognizant of whatever act it is that they’re claiming they’re doing. Of course, that’s going to center around the facts of the case specific to this particular defendant.
Defendant Knew Their Actions Could Cause Great Bodily Injury
The next element that the prosecutors have to prove in an assault with a deadly weapon case in San Fernando or Van Nuys, CA is if defendant acted and he or she was aware of the facts that would lead a reasonable person to realize that his or her actions by their nature would directly or probably result in the application of force to someone else.
So, you have to know if you’re going to point a gun with somebody – that’s assault with a deadly weapon. They’re going to know that you could shoot them. If you’re going to throw something at somebody or try to drive a car at somebody or try to stab somebody with a knife – these are all things that this type of act is something you should know could produce great bodily injury.
This leads us into the next element, which is that the defendant acted and had the present ability to apply force likely to produce great bodily injury. So, obviously, if the defendant’s on TV, a show on these things, they don’t have the present ability to do anything, but if they’re there and they have some sort of a weapon and they’re assaulting you with it, that could certainly meet this element because they have the present ability, they’re right there.
Defendant Was Not Acting in Self Defense
The final thing – I don’t know if it’s an element – but it’s certainly something that’s important – and that is the defendant did not act in self-defense. If someone is acting in self-defense when they use a weapon, then that’s a complete justification to the crime and they can’t be convicted of a crime.
That’s what happens a lot in these cases. People are charged with these serious offenses – assault with a deadly weapon. They’re looking at all this time in prison, but in reality, they were just defending themselves.
As long as they were defending themselves in a reasonable manner under the circumstances and they were not acting with too much force under the circumstances, then they could certainly assert the defense of self-defense to an assault with a deadly weapon charge and if they’re successful they wouldn’t be convicted of anything. Of course, all these facts and circumstances spin on the particular case – what happened, what evidence the prosecutors can prove and what evidence the prosecutors can’t prove.
When it comes to assault with a deadly weapon in San Fernando Valley, Penal Code Section 245(a), the jury instructions is used by most of the judges, at least in the twenty-five years that I’ve been practicing.
Recently, CALCRIM took over for CALJIC, and now they use the CALCRIM jury instructions, so if you’re interested about what the prosecutors have to prove in your criminal case if you’re charged with assault with a deadly weapon, then you should go to that CALCRIM 875.
That lays it out there. And of course, you have to talk to an attorney who has been down this road before. I’ve been doing this for twenty-five years. I’ve done a lot of these cases and have had a lot of success and it’s because I know going into the case what the prosecutors have to prove.
I know what I’m going to be able to challenge, and if we can negate some of these elements and show, this was a self-defense, no it didn’t happen that way, you have only half the story because the police only talked to half of the people involved. They didn’t talk to my client.
They didn’t talk to all the witnesses, and now that you have the full story jury, now you’re going to see that my client was not guilty, and my client is going to be able to walk out of that courtroom. That’s what we’re shooting for when we do these jury trials and that’s why we have to know from the beginning what are the elements of assault with a deadly weapon and how can we counter them.
Contact an Assault with a Deadly Weapon Defense Lawyer
We are seasoned and qualified in the area of criminal defense. We have dealt with thousands of assault and assault with a deadly weapon cases and have seen great results. Our Van Nuys Lawyers are well-informed on all laws and courtroom procedures involving assault with a deadly weapon cases.
We guarantee our dedication and persistence in doing everything we can to get you the best possible results. We carefully analyze the charges and assert any and all defense applicable to the charge.
Common defenses to ADW are self defense, defense of others, consent, lack of intent, insufficient evidence, constitutional violations by police officers, and inability to carry out the assault such as threatening to shoot with an unloaded gun.
In some cases, we could pursue an intoxication defense for lesser charges. If you are facing a ADW charge, our objective is to keep you out of prison and to protect your legal rights. Contact our Attorneys in the San Fernando Valley and set up a free consultation.