An assault (Penal Code Section 240) occurs when the Defendant acts in such a manner as to put the victim in reasonable apprehension of physical harm. In other words, the victim feels reasonably threatened by a physical act but does not actually to have physical contact with the Defendant. For example, if someone tries to punch the victim and the victim sees the punch coming and dodges it, this is an assault.
Assault with a deadly weapon (Penal Code Section 245(a)(1)) occurs when the person is assaulted in the same manner as above except the Defendant uses a weapon like a knife or gun. However, a person's foot can be considered a dangerous weapon as can someone's vehicle. Often times assault with a deadly weapon is alleged if the person is actually physically injured by the assault. Felony battery (Penal Code Section 243(d)) can also be alleged.
Defenses to Assault with a Deadly Weapon
The best defense to assault with a deadly weapon is self defense or defense of others. However, the act of self defense must be reasonable. If the victim is attacked with fists then it would not be self defense to shoot the person with a gun. Self Defense should be like force with like force. On occasion it may be appropriate for someone to use unequal force. For example, if one person is much larger then the other or a person in a wheelchair is being assaulted then they may justifiably use a weapon. Obviously, any sort of physical exchange is risky and the course of action that avoids criminal charges being brought is the best one. Assault does not require a specific intent to cause injury or threaten the other person. If the victim is reasonably put in apprehension of physical harm that is enough.
This crime is commonly alleged in bar fights. Those types of cases are sometimes difficult for the District Attorney to prove because there is usually conflicting stories.
Sentencing for Assault with a Deadly Weapon
The maximum custody time for Assault with a Deadly Weapon is three years in prison. However, if a gun is used or the victim is seriously injured the sentence can be much higher. For example, an enchacement for infliction of great bodily injury (Penal Code Section 12022.7) can add three years to the maximum sentence for a total of six years. If a person uses a firearm to assault another person that can add ten years under Penal Code Section 12022.53, for a total maximum of 13 years.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.