Assault

An Unlawful Touching/Application of Force

The first thing to understand is how California defines “assault.” The statutory definition of an assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” This definition, however, does not adequately express the breadth of acts that are considered assaults.

To assault someone means to touch or attempt to touch someone in a harmful or offensive manner. The person committing the assault does not have to actually touch the victim, and the slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough to constitute assault. Causing something or someone else to have contact with a person is an assault. The touching does not have to actually cause pain or injury of any kind.

Another way to define an assault under California law is an act that by its nature would directly and probably result in the application of force to a person. The term application of force means to touch in a harmful or offensive manner Note that an assault can be an act that would “probably” result in the application of force to a person. An assault does not require that the victim actually had force applied to him or her.

While these definitions do not align completely with the statutory definition, which requires an attempt to commit a “violent injury” upon a person, assault has been interpreted as willfully and intentionally taking some action that resulted in or would probably have resulted in harmful or offensive touching being applied to the other person.

The Defendant’s Willfulness, Intent, and Ability to Commit the Assault

To commit an assault, a person must act willfully. This means that the person who commits the act (not the touching but the act that results in a touching or attempted touching) does so willingly or on purpose. He or she does not have to intend to hurt the victim or break the law. It is enough that the person meant to commit the act. Examples may include throwing an object at another person or swinging a fist near another person, even without meaning to hit or hurt the person. If the person willfully threw the object or swung his or her fist, that is enough to establish willfulness for assault.

An assault also requires that the person acted with intent. This does not mean that the person intended to harm the victim. As long as the person intended to commit an act that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone, that is enough to show that the person acted with intent.

Finally, a criminal assault requires that the defendant have the present ability to apply force to the victim. For instance, if a person swings his or her fist at another person a block away, the first person would lack the present ability to apply force and would not commit an assault.

Conviction for Assault

To be convicted of assault, a person does not need to:

  • Actually touch someone
  • Intend to cause harm or apply force to someone
  • Actually cause harm or injury to someone

All that is required is that the person willfully and intentionally committed an act that, by its nature, would lead a reasonable person to realize that the act would directly and probably cause an offensive touching and that the person had the present ability to commit that touching.

  1. Assault
  2. Assault with a Deadly Weapon
  3. Defenses to Assault with a Deadly Weapon
  4. Penalties for Assault with a Deadly Weapon/Strikes
  5. Obtaining Counsel

Assault with a Deadly Weapon

While the definition of a simple assault is incredibly broad, assault with a deadly weapon narrows the definition. While a simple assault can be committed with any object or touching, assault with a deadly weapon requires that the assault be committed 1) with an object capable of causing death or 2) with force capable of causing great bodily injury.

Deadly Weapon

As stated above, a deadly weapon does not have to be “deadly” like a gun or machete; it only must be capable of causing death or “great bodily injury.” Objects used as a weapon, if they are used in a way that could kill someone or cause substantial harm, are deadly weapons. Bats, bricks, clubs, BB guns, rocks, a glass bottle, brass knuckles, a blunt object, any pointed object that could be used to stab, and any sharp object that could be used to cut are deadly weapons.

Objects not normally thought of as deadly weapons become deadly if their use could cause death or substantial harm. Thus, a car used to run someone down or a dog trained to attack would each be a deadly weapon. A fake gun can be a deadly weapon if used as a bludgeon. A sharpened pencil, if used to stab or attempt to stab, can be a deadly weapon. Even a person may be a deadly weapon if he or she uses his or her body in a way that could kill or cause substantial harm.

Great Bodily Injury

To constitute an assault with a deadly weapon, a person must commit an assault as defined above with a lethal weapon or with force that was likely to produce “great bodily injury.” This means more than a minor injury; it means a significant or substantial injury, such as a stab wound, a laceration, a black eye, a broken bone, a substantial contusion, or a dog bite. Again, the victim does not have to be actually injured; it is enough that the force was likely to produce great bodily injury.

Specific Assaults

Some assaults are separately defined by California statute. While purposefully causing an animal to attack a person is assault with a deadly weapon, failing to control a dangerous animal is a separate offense. It occurs when a person owns or has custody of a dangerous animal and knows it is dangerous but willfully allows it to escape or fails to use ordinary care with the animal and the animal attempts to seriously injure or kill a person.

Throwing an object at a vehicle is also defined separately under California law. If a person, intending to cause great bodily injury, maliciously and willfully throws or projects any rock, brick, bottle, metal, or other missile, or projects any other substance capable of doing serious bodily harm, at a vehicle or its occupant, it is a crime related to but separate from assault with a deadly weapon. Throwing an object at a vehicle does not require that the thrower have the present ability to apply force to the victim. Even if there is no chance of the object hitting a vehicle or its occupants, a person may still be charged with the crime of throwing an object at a vehicle.

“Brandishing” a deadly weapon or firearm is also a separate offense in California. “Brandishing” means that a person exhibited a firearm or a deadly weapon in another person’s presence in a rude, angry, or threatening manner or during fight.

An assault with caustic chemicals is also a separately defined offense. Such an assault occurs if a person willfully and maliciously “places or throws or causes to be placed or thrown” a vitriol, corrosive acid, flammable substance, or other caustic chemical with the intent to “injure the flesh or disfigure the body” of another person. A flammable substance means gasoline, petroleum products, or flammable liquids with a flashpoint of 150° or less.

To commit assault with a caustic chemical, the person must act “maliciously,” as opposed to intentionally and willfully, meaning he or she intentionally commits the wrongful act or he or she intends to disturb, defraud, annoy, or injure someone else.

  1. Assault
  2. Assault with a Deadly Weapon
  3. Defenses to Assault with a Deadly Weapon
  4. Penalties for Assault with a Deadly Weapon/Strikes
  5. Obtaining Counsel

Defenses to Assault with a Deadly Weapon

The primary defenses to a charge of assault with a deadly weapon are:

  • Failure to act willfully or intentionally,
  • Lack of a deadly weapon, and
  • Self-defense.

As noted in the definition of “assault,” a person acts willfully or intentionally even if he or she does not mean to harm the victim. To show lack of intent or willfulness, a person could show, for instance, that he or she was holding a deadly weapon and tripped or was pushed, resulting in contact or near contact with the victim. A person could be using a deadly object for a legitimate purpose, such as cutting meat or carving wood, and the object slips from his or her hand. Such an act would not be a willful or intentional act that would support a finding of assault with a deadly weapon.

Assault with a deadly weapon requires, of course, that a person use a deadly weapon to commit the assault. Although the category of objects that can be deadly weapons is large, there are limitations. If a person does not use a weapon that is a deadly weapon, that would be a defense to the charge. For example, a crumpled piece of paper or a sponge would not constitute a deadly weapon, and even if such objects came in contact with a person, and such an act would not support a charge of assault with a deadly weapon.

Finally, a person may assault another with a deadly weapon to defend himself or herself or another person against the imminent danger of bodily injury or of being touched unlawfully, as long as the person reasonably believed that the immediate use of force was necessary to defend against that danger, and the force used was no greater than necessary to defend against the danger. This is called self-defense or defense of others and, if proven, will preclude a conviction for assault with a deadly weapon.

  1. Assault
  2. Assault with a Deadly Weapon
  3. Defenses to Assault with a Deadly Weapon
  4. Penalties for Assault with a Deadly Weapon/Strikes
  5. Obtaining Counsel

Penalties for Assault with a Deadly Weapon/Strikes

Depending on the circumstances of the assault, a person may be charged with either a misdemeanor or a felony for assault with a deadly weapon. For a misdemeanor conviction, the defendant can be sentenced to imprisonment in the county jail for a term not exceeding one year. For a felony conviction for assault with a deadly weapon, the defendant can be imprisoned in the state prison for two, three, or four years. In either case, the defendant may also have to pay a fine not exceeding ten thousand dollars ($10,000). Conviction for assault with a deadly weapon can result in both imprisonment and a fine.

However, if the assault is committed against a peace officer or firefighter performing his or her duties, the penalty is imprisonment in the state prison for three, four, or five years.

In addition to the penalties imposed by law, a conviction for assault with a deadly weapon can count as a “strike” against a defendant for purposes of California’s three-strike rule. Such an assault is a strike if the conviction was a felony and either 1) the defendant used “force likely to produce great bodily injury” and the victim sustained great bodily injury; or 2) the defendant used a lethal weapon, a misdemeanor conviction does not result in a strike.

  1. Assault
  2. Assault with a Deadly Weapon
  3. Defenses to Assault with a Deadly Weapon
  4. Penalties for Assault with a Deadly Weapon/Strikes
  5. Obtaining Counsel

Obtaining Counsel

Because of the breadth of the definition of “assault” and the wide variety of objects that can constitute a “deadly weapon,” defending against a charge of assault with a deadly weapon is complex and requires experienced counsel to parse the facts and law and present a defense. Considering the severe penalties that can result from a conviction for such an assault, a person charged with this crime should contact an attorney as soon as possible.