Assault with a Deadly Weapon
Category > Assault with a Deadly Weapon
Updated 2/26/2024Assault with a semiautomatic weapon is a lesser included offense of assault on a peace officer with a semiautomatic weapon. Defendant was improperly convicted of both assault with a semiautomatic firearm (Penal Code section 245 (b)) and assault on a peace officer with a semiautomatic firearm (section 245 (d)(a).) id: 27495
Updated 2/24/2024Dual convictions for assault with a deadly weapon and assault with a force likely to cause GBI violated section 954 as they were based on the same conduct.Defendant’s convictions for assault with a deadly weapon in count 1 and assault with great bodily injury in count 2 were different statements of the same offense where they were both based on defendant’s act of striking the victim with a chair. The two convictions violated Penal Code section 954, and the conviction in count 2 was vacated.id: 26630
Updated 2/4/2024Assault with a semiautomatic weapon is a lesser included offense of assault on a peace officer with a semiautomatic weapon.Defendant was improperly convicted of both assault with a semiautomatic firearm (Penal Code section 245 (b)) and assault with a semiautomatic firearm (section 245 (d)(a).) id: 27443
Updated 2/3/2024Defendant was improperly convicted of assault with force likely to cause GBI as a lesser included offense of assault with a deadly weapon.Defendant was convicted of assault with force likely to cause great bodily injury, an offense not charged, after the court instructed the offense was a lesser included offense of the charged assault with a deadly weapon. The conviction violated due process and the proper remedy was to reverse the conviction.id: 27634
Updated 2/3/2024Assault with a deadly weapon and “force likely assault” are different statements of the same offense and multiple convictions are prohibited by section 954.Assault with a deadly weapon under Penal Code section 245 (a) (1), and assault with force likely to produce great bodily injury under section 245 (a) (4) are different statements of the same offense and a defendant cannot be convicted of both.id: 27556
The trial court erred by instructing that a box cutter is an inherently deadly weapon as a matter of law. Defendant jabbed a box cutter at two people , lacerating Michelle’s head, but not touching Chris. He was convicted of mayhem with a deadly weapon enhancement as to Michelle, and assault with a deadly weapon as to Chris. The trial court erred by instructing that a box cutter is an inherently deadly weapon as a matter of law. The error was harmless as to the conviction regarding Michelle since it’s likely the jury would have reached the same verdict but for the error. The error was prejudicial as to the ADW count involving Chris because the use of the box cutter in that encounter was more nebulous.id: 25947
The trial court erred by failing to instruct on simple assault as a lesser included offense of assault with a deadly weapon.Defendant was an inmate who became involved in a melee with correctional officers. He was convicted of two counts of assault with a deadly weapon by an inmate. However, the trial court erred when it failed to instruct sua sponte on simple assault as a lesser included offense of assault with a deadly weapon by an inmate. The jury could reasonably have found that defendant assaulted the officers, but did not use the chains or anything else as a deadly weapon. id: 25848
A person who has been convicted of violating Penal Code section 245, subd.(a)1) cannot also be convicted under subd.(a)(4) based on the same assault.The minor could not properly have been found to have violated both Penal Code section 245, subd.(a)(4), assault by force likely to produce great bodily injury, and section 245, subd.(a)(1) assault with a deadly weapon or instrument other than a firearm because the former is a necessarily included offense specified in the latter.id: 24916
The trial court erred by instructing the jurors that they could find a box cutter constitutes an “inherently deadly” weapon.Defendant thrust the exposed blade of a box cutter and threatened to kill the victim. He was convicted of assault with a deadly weapon under Penal Code section 245, subd.(a)(1). However, the trial court erred by instructing the jury that it could find the box cutter to be an “inherently deadly” weapon. The conviction was reversed where the record did not show that the jury relied on the alterative definition of a deadly weapon focusing on how a non-inherently dangerous weapon was actually used.id: 25534
Defendant could only be convicted of one count of aggravated assault on a police officer even though the offense could be committed in two different ways.Defendant accelerated a stolen vehicle towards a police officer. He was convicted of two counts of Penal Code section 245, subd.(c), which penalizes the assault of a peace officer “with a deadly weapon or instrument other than a firearm, or by means likely to produce great bodily injury.” One of the counts had to be reversed because unlike section 245, subd.(a)(1)-(4), which divides aggravated assault not involving a police officer into four different crimes that may support separate convictions, section 245, subd.(c) describes a single offense that can be committed two separate ways.id: 25471
Assault with a firearm instruction failed to require that each victim had to be subject to the application of force. Defendant was convicted of five counts of assault with a firearm. Each charged count identified a different family member as the victim. However, the jury instruction referred to application of force “to a person or to someone” which suggested the prosecution proved each count if any member of the family was at risk. The instruction was flawed by failing to clarify that each victim must have been subject to the application of force. Four of the convictions were reversed.id: 22997
The butter knife with a rounded end was not a deadly weapon for purposes of Penal Code section 245, subd.(a). There was insufficient evidence to support the finding that the minor committed an assault with a deadly weapon because the butter knife with a rounded end did not constitute a deadly weapon. It was not capable of producing death or great bodily injury and if defendant had pressed the knife harder against the victim, it would have broken. The adjudication order was modified to reflect a true finding on the lesser included offense of misdemeanor simple assault in violation of Penal Code section 240.id: 22020
1994 revised version of CALJIC 9.00 fails to accurately describe the intent necessary to support an assault conviction.CALJIC 9.00 erroneously permits a jury to convict for assault based on a criminal negligence standard rather than on a finding that the defendant had criminal intent. However, the error was harmless where the jury necessarily determined, in connection with the attempted murder charges, that defendant harbored the requisite mental state to support the assault convictions.id: 15334
Even after Prop 21 amendment, ADW under section 245(a)(1) only qualifies as a serious felony for three strikes purposes if the defendant personally used a weapon.The record did not support the trial court's finding that defendant's prior assault conviction under Penal Code section 245, subd.(a)(1) qualified as a serious or violent felony within the meaning of the three strikes law or Penal Code section 667, subd.(a). Following Prop 21, a conviction for ADW under section 245(a)(1) now qualifies as a serious felony whether defendant was convicted as a direct perpetrator or an aider and abettor. However, the amendment did not change the status of assault by means of force likely to produce great bodily injury - the other variant of section 245(a)(1). The documents presented to the court were silent on the question of whether defendant personally used a gun or personally inflicted great bodily injury.id: 18614
Assault instruction failed to require "actual knowledge" but the error was harmless where the evidence showed defendant knew he was facing two officers on the sidewalk.Defendant was convicted of armed assault against two police officers. Assault requires actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in physical force being applied to another. The instruction given in the present case could have permitted a conviction premised on the facts the defendant should have known but did not actually know. However, the error was harmless where there was no evidence in the record to suggest defendant did not know he was facing two officers on the sidewalk.id: 16537
The court prejudicially erred by giving conflicting instructions at defendant's trial for assault by a life prisoner.Defendant was convicted of assault by a life prisoner in violation of Penal Code section 4500. However, the jury was given conflicting instructions. CALJIC Nos. 9.00 and 3.30 required the jury to find general intent. CALJIC Nos. 7.35 and 3.31.5 required the jury to find the specific intent of malice aforethought. Additionally, the jury was instructed as to both malice aforethought and simple malice. The error was prejudicial where it was impossible to know whether the conflicting instructions contributed to the verdict.id: 18318
Evidence did not support assault with a firearm conviction where there was no evidence the gun was loaded or used (or threatened) as a bludgeon.Defendant was convicted of assault with a firearm. However, there was insufficient evidence to support the conviction where there was no evidence that the gun (which was never recovered) was loaded, and no evidence that defendant attempted or threatened to use it as a bludgeon.id: 9727
Doctrine of transferred intent is inapplicable to assault with a firearm.Defendant was convicted of assault with a firearm against victim Green despite his claim that he only intended to shoot Young after Young brandished a weapon. The trial court erred in instructing the jury on the doctrine of transferred intent under CALJIC 9.10. Assault is a general intent crime and the doctrine is inapplicable. However, the error was harmless as the instruction removes the jury's focus from considering who the defendant intended to injure, and directs the jury to consider whether defendant had the general criminal intent to commit the assaultive act.id: 9726
Court erred in failing to define assault in its instructions on assault with a deadly weapon.The trial court erred in failing to define assault (CALJIC 9.00) in its instructions to the jury on the crime of assault with a deadly weapon. However, since the jury found appellant guilty of the completed crime, i.e., battery, it necessarily resolved that he attempted to commit the battery, which was the factual question posed by the omitted instruction.id: 9725
Negligence does not satisfy the mental state required for a conviction of assault with a deadly weapon.Defendant was convicted of assault with a deadly weapon upon a peace officer. The trial court instructed under former CALJIC 9.00 that assault requires a general criminal intent. Jurors sent a note asking whether an intent to move the vehicle constituted general criminal intent or whether an intent to injure was required. The court responded with an abbreviated instruction directing the jury to apply a negligence standard to the assault element of the offense. However, negligence does not satisfy the mental state required for a conviction of assault with a deadly weapon. The conviction was reversed as the error was deemed prejudicial.id: 15340
The trial court prejudicially erred in instructing that there is no “awareness” element in assault with a deadly weapon.At defendant’s trial for assault with a deadly weapon, the trial court erred in instructing the jury (in response to a juror note) that there “is no awareness element.” The instruction allowed the jury to find defendant was guilty of assault without considering whether she was aware of facts that would lead a reasonable person to realize that physical force would be applied to the victim.id: 20514
Evidence did not support the assault with a firearm on an officer where the officer snuck up behind defendant who had his gun drawn, but the evidence did support attempted murder.Evidence was insufficient to support the conviction of assault with a firearm on a police officer under Penal Code section 245, subd.(d)(1), where defendant was pointing a gun near the front of a trailer but the officer had approached from behind convincing him to drop the gun before a bullet was loaded in the chamber. The evidence did support the attempted murder conviction even though defendant had not yet placed a bullet in the chamber.id: 19161
Assault with a firearm is a lesser necessarily included offense of discharging a firearm from a vehicle at a person outside the vehicle.The true finding on court 2 of the juvenile petition was reversed because assault with a firearm under Penal Code section 245, subd.(a)(2), is a necessarily included offense of discharging a firearm from a vehicle under section 12034, subd.(c) based on the same act and the same victim.id: 18231
The misdemeanor assault convictions which were lesser included offenses of the charged aggravated assaults, were time barred by the statute of limitations.Defendant was charged with five counts of assault with a deadly weapon, but on those counts the jury convicted him of the lesser included offense of misdemeanor assault. However, because the conduct forming the basis of those counts occurred more than one year before the Information was filed, the one year statute of limitations for misdemeanors barred the convictions. Moreover, defendant did not forfeit the statute of limitations defense by failing to raise the issue in the trial court and by acquiescing in the lesser included offense instruction that permitted a conviction of the time-barred misdemeanors.id: 17187
Evidence did not support convictions of assault with a deadly weapon where defendant struck the victim on the shoulders and back with a broomstick and a plastic vacuum cleaner attachment.Defendant was convicted of two counts of assault with a deadly weapon pursuant to Penal Code section 245, subd.(a)(1). The weapons used by the defendant were a broomstick and a plastic vacuum cleaner extension used to clean the ceiling or in corners. However, the record did not show whether the broomstick was solid or hollow, and therefore whether it was capable of, or likely to, cause great bodily injury. The bruises on the victim's shoulders and arms were insufficient to show the broomstick was used as a deadly weapon. Likewise, striking the victim with the plastic hollow vacuum cleaner attachment was unlikely to produce significant injury, and bruises on the victim's back and shoulders did not show the attachment was used as a deadly weapon. The convictions were reduced to misdemeanor assault.id: 17186
License revocation for person convicted of ADW using a car does not apply to a person convicted of attempted murder using a car.Defendant rammed his car into the victim, resulting in amputation of the victim's leg. He pled no contest to attempted murder with a great bodily injury enhancement. Vehicle Code section 13351.5 requires the DMV to revoke a driver's license following a conviction of assault with a deadly weapon in violation of Penal Code section 245 when a vehicle is the deadly weapon used in the offense. The court erred in recommending license revocation under section 13351.5 in this case where the conviction was for attempted murder rather than assault with a deadly weapon under section 245 as specified in the statute.id: 17182
The doctrine of transferred intent did not apply where defendant swung a bottle at two victims, hitting one, and two assaults were charged.Defendant was convicted of two counts of aggravated assault after he swung a bottle at two people. He hit the second person after the first one ducked. The trial court erred in instructing on the doctrine of transferred intent because the doctrine does not apply where the prosecution proceeds on the theory that the defendant assaulted both victims. However, no prejudice would have resulted from the error since the action of swinging the bottle at both victims was sufficient to establish two assaults.id: 9737
Evidence was insufficient to support assault where the apple was accidentally thrown by the minor with no intention of hitting the teacher.A minor threw away a partially eaten apple, and the apple passed through a gap in a door accidentally hitting a teacher. The evidence was insufficient to support the aggravated assault conviction because there was not intent to touch, strike, or batter the victim.id: 15337
Defendant was not guilty of assaulting firefighters under section 245, subdivision (d)(1) where the firefighters were acting as paramedics.Defendant was convicted of assault with a firearm on a firefighter pursuant to Penal Code 245, subdivision (d)(1). However, the victims were not engaged in any firefighting duties at the time of the assault, but were acting instead as paramedics or rescue personnel. As such they did not have the status required for a violation of section 245, subdivision (d)(1).id: 15335
Hands and feet are not deadly weapons for aggravated assault statute but reversal was not required where the evidence showed force likely to produce great bodily injury.Penal Code section 245, subdivision (a)(1) punishes an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury. Hands and feet do not constitute deadly weapons" within the meaning of the statute. However, reversal was not required because the jury's decision making process in an aggravated assault case under section 245, subdivision (a)(1) is functionally identical regardless of whether, in the particular case the defendant used a deadly weapon or employed force likely to cause great bodily injury. In either case, the result turns on the nature of the force used.id: 15339
Firearm use finding did not establish defendant's ability or attempt to apply physical force to the victim for ADW purposes.The assault with a deadly weapon count was set aside where the court did not instruct the jury, sua sponte, how to define assault. The jury's finding of firearm use necessarily implied nothing more than a menacing display of a weapon. It cannot be assumed from the firearm use finding alone, that the jury further found defendant had the present ability to, and in fact attempted to, apply physical force to his victim.id: 9733
Updated 3/7/2024Defendant was properly convicted of both assault by means likely to produce great bodily injury, and ADW based on different acts committed during a single incident. Defendant argued that he was improperly convicted of both assault with a deadly weapon (Penal Code section 245, subd.(a)(1)) and assault by means likely to produce great bodily injury (section 245, subd.(a)(4)) based on the same assault. However, the two counts were based on different acts committed during a single incident, and both convictions were proper.id: 26296
Updated 3/7/2024CALCRIM No. 875, which defines “deadly weapon” is a correct statement of law and defendant forfeited a challenge to its use in answering a juror question by not objecting at trial. Defendant argued the trial court erred by referring to CALCRIM No. 875 in response to the jury’s question about the definition of a deadly weapon. However, the instruction was a correct statement of the law and referring back to it did not adversely affect defendant’s substantial rights. Therefore, defendant’s failure to object to the instruction at trial forfeited the claim on appeal.id: 26297
Updated 3/6/2024Evidence supported the jury’s finding that defendant used force that was likely to cause great bodily injury where he pushed the victim toward an oncoming train even though she escaped uninjured.Defendant grabbed his former girlfriend in a bear hug and pushed her toward the edge of a train platform as the train approached. He let her go and she escaped uninjured. He was convicted of assault with force likely to produce great bodily injury (Penal Code section 245 (a)(4).) Substantial evidence supported the jury’s finding that “serious injury” was likely within the meaning of the statute.id: 26528
Updated 3/4/2024The trial court did not err in refusing defendant’s proposed pinpoint instruction suggesting assault may not be based on reckless conduct. The trial court did not err in refusing to instruct with defendant’s proposed pinpoint instruction regarding the assault with a deadly weapon charge. The proposed instruction suggested that reckless conduct alone cannot serve as the basis for assault even if it results in injury to another. However, the proposed instruction was confusing absent a further definition of “reckless conduct”, and may have been an incorrect statement of the law.id: 27274
Updated 2/26/2024Evidence supported the ADW conviction where defendant intentionally cut the brake lines of the intended victim’s vehicle, making the vehicle a deadly weapon.Defendant intentionally severed the brake lines of the intended victim’s vehicle. Evidence supported defendant’s conviction for assault with a deadly weapon because he used the victim’s vehicle as a deadly weapon. The instructions erroneously included the two theories of ADW - “inherently deadly” weapon, and one that could be used in a way that was likely to cause death or GBI. Although the portion of the instruction relating to the former was erroneous, the error was harmless where it shows the prosecution proceeded only on the latter theory. id: 26276
Updated 2/23/2024Evidence supported the conviction of assault with a semiautomatic firearm involving victim R. where defendant fired at S. who was two bicycle lengths behind R. Defendant argued the evidence was insufficient to support his conviction of assaulting R. with a semiautomatic firearm where he fired at S. who was riding a bicycle and R. was riding at least two bicycle lengths in front of S. However, the jury could reasonably have found that defendant intentionally engaged in conduct with the firearm that would likely cause injury to S. and R.id: 26782
Updated 2/23/2024Evidence supported the assault with a deadly weapon finding where minor lunged at the victim from 10-12 feet with an open switchblade.Evidence was sufficient to support the finding that the minor committed assault with a deadly weapon where he lunged at the victim with an open switchblade-like knife from 10-12 feet away. Even though he never made a stabbing motion, he used the knife in a manner likely to cause death or great bodily injury.id: 26923
Updated 2/4/2024Because defendant was given notice in the accusatory pleading, the trial court did not err by instructing on force-likely assault as a lesser included offense of ADW.Defendant argued the trial court erred by instructing the jurors that “force likely assault” under Penal Code section 245(a)(4) was a lesser included offense of assault with a deadly weapon under section 245(a)(1). However, because the accusatory pleading alleged defendant used a non-inherently deadly ceramic mug to perpetrate his aggravated assault, he had notice the prosecution would try to prove the mug was used with force in a manner likely to cause great bodily injury, which would support a conviction for force-likely assault.id: 27687
Updated 2/3/2024One-legged defendant had the present ability to commit ADW as he lunged towards the victim with a knife.Defendant was an amputee with one leg. He was convicted of assault with a deadly weapon (knife) but argued he lacked the present ability to commit the crime while balanced on one leg and braced against a table as he lunged at the victim. While physical limitations might impact a defendant’s ability to commit an assault, evidence supported the conviction here.id: 27854
Updated 2/1/2024Defendant’s act of firing a warning shot at the ground during an argument supported the aggravated assault conviction as it was likely to produce injury.Defendant argued the evidence was insufficient to support his conviction of assault with a semi-automatic firearm because it did not show his conduct was likely to produce injurious consequences. However, in the heat of a conflict, defendant’s act of firing a warning shot at the ground within 20 feet of the victims could be considered a purposeful act to frighten the victims, and an act that contemplated injurious consequences.id: 27984
Evidence supported the ADW convictions where defendant intentionally drove through a red light and sped at a car without breaking. Defendant was convicted of assault with a deadly weapon against two people in the target car as he recklessly drove through a red light during a high speed chase involving the police. Evidence supported the convictions because although there was no intent to injure, the driving in question would probably and directly result in the application of force to the victims. He attempted by physical menace to put others in fear of imminent serious bodily injury and that was sufficient to support the convictions.id: 26154
Defendant’s use of a key, up close and in a threatening manner, supported his conviction of assault with a deadly weapon.Defendant’s conviction for assault with a deadly weapon was supported by substantial evidence. A car key is not an inherently dangerous or deadly weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and can cause serous bodily injury.id: 26253
Force-likely assault is not a lesser included offense of ADW.Defendant hit her father with a bicycle chain, and threw a ceramic pot at his head. She was convicted of assault with a deadly weapon other than a firearm under Penal Code section 245, subd.(a)(1) and assault by force likely to produce great bodily injury under section 245, subd.(a)(4). Contrary to her claim, force-likely assault is not a lesser included offense of assault with a deadly weapon. Both convictions were proper given the multiple acts. id: 25843
Defendant’s prior conviction for assault with a deadly weapon, a broken beer bottle, constituted a strike prior.Defendant argued his prior conviction for assault with a deadly weapon was not a strike because a broken beer bottle is not an “inherently”deadly weapon. However, defendant could not have committed the assault in a way that did not constitute a serious felony, and the evidence supported the trial court’s prior strike finding.id: 25877
Defendant’s use of a key, up close and in a threatening manner, supported his conviction of assault with a deadly weapon.Defendant’s conviction for assault with a deadly weapon was supported by substantial evidence. A car key is not an inherently dangerous or deadly weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and cause serous bodily injury.id: 25787
Defendant was improperly convicted under both aggravated assault provisions where he committed a single act.Defendant was improperly convicted of both assault with a deadly weapon (Penal Code section 245, subd.(a)(1)) and assault by means of force likely to produce great bodily injury (section 245, subd.(a)(4)) based on a single act of choking his cellmate with a tightly-rolled towel. The two convictions violated section 954 and the court vacated the force-likely assault conviction. The court also struck the deadly weapon enhancement attached to the force-likely assault conviction because use of a deadly weapon was an element of that offense.id: 25677
The juvenile court could look beyond the terms of the ADW allegation to determine whether it qualified as a section 707, subd. (b) offense. Defendant argued his 2005 finding of assault with a deadly weapon did not fall within the disqualifying offenses described in Welfare and Institution’s Code section 707, subd.(b). Contrary to defendant’s argument, the juvenile court was authorized to look beyond the terms of the specific allegation to the facts presented and to conclude it was a section 707, subd. (b) offense.id: 25286
A butter knife was a deadly weapon for purposes of Penal Code section 245, subd.(a)(1).The minor was found to have committed an assault with a deadly weapon. The evidence was sufficient to support the finding where the weapon was a butter knife.id: 25218
Evidence supported the aggravated assault conviction as defendant had the present ability to cause harm where he was holding a knife 15 feet away from the officers and took steps towards them.Defendant was convicted of aggravated assault on a police officer based on a situation where he wielded a large knife and took a step towards the police officers who ordered him to drop the knife. He argued the record did not establish “present ability” to harm the officers given the 10-15 feet distance between him and the officers at the time of the incident. However, the fact that defendant was several steps away did not preclude a finding of present ability.id: 25260
Defendant who threw a showerhead at a reinforced glass window was properly convicted of assault on a peace officer with force likely to cause great harm.Defendant, while incarcerated at a CYA facility, broke off a metal showerhead and threw it at a reinforced glass window with sufficient force to shatter the glass. Two peace officers on the other side of the window sustained injuries from the glass particles. Defendant argued the evidence didn’t support the assault by force likely to produce great bodily injury convictions because he didn’t know throwing the showerhead would result in the application of force to another. However, defendant’s act of throwing the showerhead at a person seated behind a glass window was sufficient to support the conviction.id: 24365
The trial court did not err by failing to properly define “great bodily injury” in response to the jury’s request for clarification.The trial court did not abuse its discretion in responding to the jury’s request for clarification of “great bodily injury” by directing it to consider the “ordinary, everyday” meaning of the term as set forth in the “full and complete” instructions on assault. id: 21609
ADW under section 245, subd.(a)(1) is not a necessarily included offense of assault by a life prisoner with a deadly weapon. Defendant was convicted of assault with a deadly weapon under Penal Code section 245, subd.(a)(1) and assault by a life prisoner with a deadly weapon under section 4500. He argued the elements of the former are included in the latter and the conviction for the lesser charge had to be reversed. The Attorney General conceded in light of People v. Noah (1971) 5 Cal.3d 469. However, the court rejected the concession and found that Noah is no longer controlling authority since a life prisoner can commit an assault with a deadly weapon in violation of section 4500 without violating section 245, subd.(a)(1).id: 21483
Evidence supported the finding that the minor committed an assault with a deadly weapon by poking the victim in the back with a knife even though not intending serious injury.The minor argued the evidence did not support the finding that he assaulted the victim with a deadly weapon because he only playfully poked his classmate in the back with the knife. However, even though he didn’t break the victim’s skin he still pushed the knife against her back. The assault finding did not require proof that he intended to use the knife as a deadly weapon. The lack of serious injury as not dispositive.id: 24124
Evidence supported the assault with a firearm conviction where the defendant shot at a door through which the victim had just passed.Defendant was convicted of assault with a semi-automatic weapon among other things. He argued the evidence was insufficient to support the conviction because the prosecution did not prove he had actual knowledge that a bullet shot at a door would penetrate it and threaten a person standing behind it. However, the evidence supported the conviction where defendant retrieved a loaded semi-automatic weapon and shot it at the door through which the victim had just passed.id: 23044
Ambiguity in defining "deadly weapon" was harmless and evidence supported ADW conviction where defendant shot a BB gun at the victims at close range. Evidence supported defendant's convictions of assault with a deadly weapon where he shot a BB gun at the victims who were five feet away. The victims ducked to avoid the shots but were struck on the foot and back. The jury instruction defining "deadly weapon" (CALCRIM No. 875) contains an ambiguity by including objects that are "inherently dangerous" as well as "inherently deadly" but any instructional error was harmless under the present facts.id: 22928
A defendant who does not actually know that his or her reckless driving would cause an injury can be convicted of assault with a deadly weapon. A driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon. While the trial court erred by instruction the jury that the defendant could not be convicted of assault unless he actually knew that his reckless driving would cause injury to another, the instruction inured to defendant’s benefit and the error was harmless.id: 22954
Evidence supported the conviction of assault with a deadly weapon with the sidewalk being the deadly weapon. Evidence supported the minor’s conviction for assault with a deadly weapon, with a sidewalk being the deadly weapon where the victim was down and the minor kicked his head against the sidewalk. While there was also evidence of assault with force likely to cause great bodily injury, that is just another means of committing an aggravated assault and a defendant cannot be convicted of both offenses.id: 22741
Aggravated assault is a lesser included offense of aggravated assault by a life prisoner.Defendant was improperly convicted of both assault with a deadly weapon other than a firearm or by means likely to inflict great bodily injury (Penal Code section 245, subd.(a)(1)) and assault with a deadly weapon or by means likely to inflict great bodily injury by a prisoner serving a life sentence (section 4500) because the former is a lesser included offense of the latter.id: 22359
Correctional officer in charge of the medical ward at the jail was a custodial officer for purposes of assault on an officer statute.Defendant was convicted of battery on a custodial officer in violation of Penal Code section 243.1. The victim was a correctional officer in a county jail. He was in charge of the medical ward of the jail where defendant was confined in a holding cell. He qualified as a “custodial officer” within the meaning of the statute. The fact that defendant was a civil committee rather than a prisoner did not change the officer’s status for the present purposes.id: 21830
Evidence supported assault conviction of backseat passenger in the car defendant shot at even though he did not know the passenger was present.Defendant argued the evidence was insufficient to convict him of two counts of aggravated assault because he had no knowledge of the backseat passenger in the car he was shooting at. Defendant had the requisite mental state for assault and essentially created a zone of harm inside the car when he shot a flurry of bullets at it. Just as the evidence would have supported convictions for attempted murder under a kill zone theory, it supported convictions for assault against both occupants of the car even though he did not know of the presence of the backseat passenger.id: 21401
Evidence supported the convictions for assault with force likely to produce great bodily injury even though the victim’s actual injuries did no turn out to be severe.Evidence supported the conviction for assault with force likely to produce great bodily injury even though the officers testified to the victim’s “simple injuries”. Although the injuries did not turn out to be severe, the beating left the victim unconscious and the record showed defendants used force “likely” to produce great bodily injury. id: 21608
Assault with a stun gun provision does not require that the victim
actually be immobilized.The minor was found to have committed as assault with a stun gun in violation of Penal Code section 244.5. He argued that the evidence was insufficient to support the finding because the person he shocked was not “immobilized” as required by the statute. However section 244.5 does not require that the victim actually be immobilized. It only requires that the device was capable of causing that result. id: 20993
Defendant need not have intended to strike the victim with his car to be guilty of assault. Defendant was convicted of felony assault under Penal Code section 245, subd. (a)(1), where he accelerated his car in the direction of his girlfriend after an argument. He argued the evidence was insufficient to support the conviction because the jurors could not have determined he intended for his vehicle to strike the victim. However, the defendant need not have intended to hit the victim to be guilty of assault. The evidence supported the conviction where it showed he drove the car toward the victim and repositioned it toward the victim as she tried to move out of the way.id: 20359
The trial court was not required to instruct on simple assault as a lesser included offense of ADW where defendant drove his car toward the victim.Defendant was convicted of assault with a deadly weapon based on the act of accelerating his car towards his girlfriend. The trial court did not err in failing to instruct on simple assault as a lesser included offense since there was no way defendant could only have committed simple assault by driving his car toward the victim. id: 20358
Assault on a peace officer under section 245, subd.(c) constitutes a “strike” even where a deadly weapon was not used.Defendant argued the evidence was insufficient to show that his prior conviction for assault on a peace officer (Penal Code section 245, subd.(c)) constitutes a serious felony for three strikes purposes, because no weapon was used. However, an assault on a peace officer under section 245, subd.(c) is a serious felony for three strikes purposes regardless of whether a deadly weapon was used. April 30, 2008
id: 20281
The trial court did not prejudicially err in failing to instruct on simple assault as a lesser included offense of aggravated assault and assault by a prisoner.While simple assault is a lesser included offense of aggravated assault and assault by a prisoner, the trial court did not err in failing to instruct on the lesser offense where a reasonable jury could not have found the defendant committed only a simple assault.id: 20073
A person transferred from prison to a state hospital under section 2684 for mental health treatment is a person in prison for purposes of the battery by a prisoner statute.Penal Code section 2684 provides for the transfer of a mentally ill prisoner to a state hospital under the jurisdiction of the Department of Mental Health if it is determined that such a transfer would expedite the prisoner's rehabilitation. A prisoner transferred to Atascadero pursuant to section 2684 is a person "confined in a state prison." Therefore, a section 2684 transferee is subject to prosecution for battery under section 4501.5 and the increased punishment provided upon conviction under that statute.id: 20009
CALCRIM 875, defining felony assault was not an argumentative pinpoint instruction - favoring the prosecution.CALCRIM 875 defines the crime of felony assault and explains the elements. It is not a pinpoint instruction. Moreover, it is not argumentative and was appropriate to clarify that proof of an actual touching, injury or intent to injure was not essential to support a conviction.id: 19972
CALCRIM assault instruction does not erroneously fail to allow the jury to consider the absence of injury.Defendant argued CALCRIM No. 915 on simple assault erroneously fails to allow the jury to consider the absence of injury and fails to require that the jury find emotional distress. However, the instruction provides a correct statement of the law.id: 19957
Assault with a firearm is not a lesser included offense of shooting from a vehicle.Assault with a firearm under Penal Code section 245, subd.(a)(2) is not a lesser included offense of shooting from a vehicle under section 12034, subd.(c) because the latter offense does
not include the element that the shooter have a "present ability" to commit a violent injury on another person, a requirement of the assault offense.id: 19681
Pushing a person into the path of a moving vehicle constitutes the "use" of "a deadly weapon" within the meaning of section 245(a)(1).There was sufficient evidence to establish a violation of Penal Code section 245, subd.(a)(1) under the theory that defendant committed an assault with a deadly weapon, because a person who knowingly pushes a victim into the path of an oncoming vehicle "uses" the vehicle as a deadly weapon within the meaning of Penal Code section 245, subd.(a)(1).id: 18553
The aggravated assault counts were not lesser included offenses of the torture count.Defendant was convicted of one count of torture and several other assault-related offenses. He argued the other offenses must be stricken because they were lesser included offenses of torture. However, Penal Code section 245, subd.(a)(1) can be convicted in two ways. Because the record showed defendant was convicted on a theory that he committed assault with a deadly weapon, not assault by means of force likely to produce great bodily injury, the assault was not a lesser included offense of torture. Neither were the assault offenses lesser included under the pleadings test where each assault count alleged the use of a different instrument. Moreover, his claim that the torture was a continuous course of conduct was not relevant to the issue of whether the assault counts were necessarily included in the torture.id: 18315
Sharp pencil was used as a deadly weapon where defendant held it up to the victim's neck and threatened to stab him.Defendant was convicted of robbery and assault with a deadly weapon as she or the accomplice took money from the victim while holding a sharp pencil to the victim's neck. Defendant argued there was insufficient evidence to show the pencil was a deadly weapon. However, defendant threatened the victim with the sharp object even though she did not use deadly force. Defendant used the pencil as a deadly weapon. Moreover, the evidence showed defendant was guilty of assault with a deadly weapon or not guilty at all. The trial court was not required to instruct on simple assault.id: 18187
Using an unloaded semiautomatic weapon as a bludgeon supported the assault with a firearm conviction.Defendant argued the evidence did not support his conviction of assault with a firearm under Penal Code section 245, subd.(a)(2) because his firearm, not having been loaded with a clip, was not operable as a semiautomatic weapon. However, the offense does not require proof that the weapon was operable as a semiautomatic firearm (i.e., loaded). It may also be committed by using the weapon as a bludgeon, as defendant did.id: 17110
The court did not err in failing to instruct on assault with a deadly weapon as a lesser included offense as assault with a semiautomatic firearm where there was no dispute that the gun was a semiautomatic and defendant used the gun as a bludgeon.Defendant was convicted of several offenses including assault with a semiautomatic firearm under Penal Code section 245, subd.(b). He argued the court erred by failing to instruct on the lesser included offense of assault with a deadly weapon under section 245, subd.(a)(1). However, defendant pistol-whipped the victim with the gun. There was no dispute that it was a semiautomatic firearm. Therefore, the jury could not have found that defendant committed only the lesser offense. The court did not err by failing to instruct on assault with a deadly weapon.id: 17111
A person can commit an assault without intent to commit a battery if his intentional act would lead a reasonable person to realize a battery would probably result.Defendant was convicted of assault with a deadly weapon, his pickup truck, which he drove close to persons intending to scare them. Defendant argued the jury should have been instructed that the mental state for assault is an intent to commit a battery. However, assault only requires an intentional act and actual knowledge of those facts sufficient to establish the act by its nature will probably and directly result in the application of physical force against another. The actor need not be subjectively aware of the risk that a battery might occur.id: 16920
Defendant who was serving a determinate term to be followed by two life terms was a "life prisoner" for purposes of section 4500 which prohibits assault by a life prisoner.During defendant's incarceration, he was charged with the new felony offense of assault by a life prisoner in violation of Penal Code section 4500. The trial court erred in determining that defendant was not a "life prisoner" within the meaning of section 4500 because, at the time of the assault, he was serving a determinate term to be followed by two consecutive, indeterminate life sentences with the possibility of parole.id: 16875
Evidence supported two assault convictions where defendant was approached by two officers, drew his gun and pointed it at one of them, but was thereafter shot by both officers.Defendant was convicted of two counts of assault with a firearm on a peace officer. He argued the evidence supported only one conviction since he never pointed the gun at the second officer. However, the evidence supported the theory that when confronted by two officers, defendant drew his gun but managed to point it at only one officer before they both shot him. By drawing the gun with the intent to shoot both officers, defendant performed an overt act sufficient to constitute an assault on both of them.id: 16536
The pellet gun was, as a matter of law, a deadly weapon within the meaning of Penal Code section 275.The testimony demonstrated that defendant's pellet gun in normal operating condition would expel pellets at speeds in excess of those required to penetrate a significant distance into muscle tissue or to enter an eyeball, and thus it was easily capable of inflicting significant injury. The pellet gun was, as a matter of law, a deadly weapon within the meaning of Penal Code section 275.id: 15341
Evidence supported ADW conviction where defendant swung a thick chain at the victim.Defendant argued his conviction for assault with a deadly weapon must be reversed because, as a matter of law, the chain with which he struck the victim did not constitute a deadly weapon. A chain is not inherently deadly. However, defendant's chain was about three feet long and "kind of thick." He also doubled it over when a he swung at the victim, indicating he was intending to inflict maximum harm. Using it in this manner, the chain was capable of producing and likely to produce great bodily harm.id: 15336
Evidence was sufficient to show the gun was loaded for purposes of the assault with a firearm conviction where defendant had shot someone the previous day, and it was illogical that as a gang member he would be in a violent area with an unloaded gun.The Court of Appeal erred in reversing the assault conviction after finding there was insufficient evidence the gun was loaded to support the conviction for assault with a firearm. When viewed in favor of the judgment, the evidence did support the conviction. The jury could have inferred the gun was loaded because defendant shot Sanchez the previous day and because defendant, a gang member, logically would not carry an unloaded gun in an area where gang violence was prevalent.id: 15338
Assault with a firearm on a police officer is not a lesser included offense of attempted murder.The trial court erred in instructing the jury that assault with a firearm on a police officer is a lesser included offense of attempted murder. However, the assault charge was a lesser related offense under the instant facts. Defendant failed to object to the instruction and embraced the assault charge during closing argument. He was therefore precluded from challenging the instruction on appeal.id: 9721
Battered officer was injured where he was treated by medical personnel at the emergency room.Defendant was convicted of several offenses including battery on a peace officer with a deadly weapon (Penal Code sections 242, 243, subdivision (c)). He argued there was insufficient evidence that the officer suffered an injury. However, the officer bruised both knees and received numerous cuts and abrasions on his hands. He was treated at the emergency room where his wounds were scrubbed, he was given supplies to scrub himself later and his knees were checked for ligament damage. The evidence supported a finding that the officer suffered an injury within the meaning of section 243, subdivision (f)(6).id: 9722
CALJIC 9.10 does not inject the issue of transferred intent into the crime of assault with a deadly weapon.Defendant correctly argued that the principle of transferred intent is inapplicable to the crime of assault with a deadly weapon. However, he incorrectly argued that CALJIC 9.10 describes the principle of transferred intent in an assault case. Rather, read in conjunction with CALJIC 9.00, CALJIC 9.10 clarifies for the jury that a defendant is not exculpated from criminal liability for assaulting an unintended victim if he intended to commit a successfully completed act (firing the gun) the direct, natural and probable consequence of which applied physical force upon or injury to another.id: 9723
Court did not commit reversible error in failing to instruct on brandishing as a lesser related offense of assault with a firearm.Defendant was convicted of several offenses including assault with a firearm (Penal Code section 245, subdivision (a)(2)). He argued the trial court improperly refused his request for a lesser related offense instruction on brandishing a weapon (section 417, subdivision (a)(2)). However, reversal was not required where the jury, confronted with defendant's use of a gun, was not faced with an all-or-nothing choice between finding him guilty of assault with a firearm and setting him free. Rather, the jury had the option of, and did in fact, convict him of false imprisonment by means of violence, of first degree robbery and of related firearm use enhancements.id: 9724
Evidence supported a conviction of assault with a firearm where defendant pointed a gun at victims notwithstanding that no injuries were sustained.Defendant ordered the employees to lay down while pointing the gun randomly towards them. He cocked the gun and told the men their safety was dependent on their cooperation. Even though no injuries were actually sustained, his actions were implied threats in circumstances where someone could have been harmed. There was ample evidence for the jury to find that defendant was guilty of assault with a firearm.id: 9728
Evidence supported ADW conviction where a prison guard saw defendant strike a fellow prisoner in the neck with an object causing injury and a homemade knife was found nearby.Defendant argued the evidence did not support his conviction of assault with a deadly weapon. The victim, a prison inmate, testified he was absolutely positive that the prisoner who stabbed him was not defendant. Moreover, a defense expert testified the homemade knife found near defendant in the courtyard following the stabbing could not have been the weapon used in the incident. However, evidence supported the conviction where the eyewitness testimony of a corrections officer established defendant struck the victim in the neck with an object causing injury and the homemade knife was found on the path on which defendant retreated after the attack.id: 9729
Evidence supported assault with a firearm where defendant cocked the gun while it was concealed in his briefcase.Defendant held a gun but it was concealed because his hand was in a briefcase. The victim, who was standing in front of defendant, heard the sound of the gun being cocked. Defendant argued he did not attempt to use the weapon to inflict injury because he did not exhibit, point, or fire the weapon. However, the evidence showed the victim was aware defendant was holding the gun inside the leather purse and that he had the present ability to commit a violent injury. This showed more than mere preparation and was sufficient to sustain a conviction of assault with a firearm.id: 9730
Evidence supported assault with a firearm conviction where defendant shot into a crowd.Defendant was convicted of assault with a firearm against victim Green. He argued there was no evidence that he attempted to shoot Green and the evidence showed he intended to shoot only Young. However, defendant was aware of the presence of the group and the jury could reasonably conclude either defendant was firing at Young and Green because Green was closest to Young, or that defendant was simply firing at the group, hoping to kill someone. Evidence was sufficient to sustain the conviction.id: 9731
Evidence supported the assault with a firearm conviction where appellant pointed his gun at everyone in the room and instructed them to Break.Appellant argued that an assault is an unlawful <i>attempt</i> to commit a battery and the evidence only showed that he pointed his gun at the victims not that he attempted to shoot them. However, a threatened act may amount to an assault even though the threat is conditioned or qualified. Appellant pointed his gun at everyone in the livingroom and told them to Break. The jury could have reasonably construed this conduct as a conditional threat constituting an assault.id: 9732
Instructing that assault is a general intent crime did not create a mandatory presumption as to defendant's intent.Defendant argued the trial court's improper instructions on assault and assault with a deadly weapon impermissibly relieved the prosecution of proving every element of the offense beyond a reasonable doubt because it created a mandatory presumption as to his intent. However, contrary to defendant's underlying claim, assault with a deadly weapon is a general intent crime. The language at issue describes or defines conduct constituting an assault, including the element of general criminal intent. If the predicates are proven to the satisfaction of the trier of fact, the requisite intent is not presumed; rather, it is established by the evidence.id: 9734
Knife-wielding defendant who chased a father carrying a baby was properly convicted of assaulting the father and the baby.Defendant argued the evidence was insufficient to support the assault with a deadly weapon conviction as to the baby that was being held by the victim-father. However, defendant need not have intended to injure the baby. He chased the father who was carrying the baby and conveyed an intent to cause injury with the knife. A knife attack on the father could forseeably have wounded the baby.id: 9735
Shooting a gun at close range near the victim supported the assault conviction.Shooting a loaded gun in the direction of a moving target from close range constitutes substantial evidence from which the jury could infer that defendant had the intent necessary to support the charge of assault.id: 9736
A defendant's knowledge of ADW victim's impervious defense is not relevant if he has the ability to carry out the method of the assault chosen.Appellant was charged with aggravated assault after being accused of cutting the brake lines in his Youth Authority counselor's car. He argued the court prejudicially erred in instructing the jury that a defendant may be guilty of assault with a deadly weapon or instrument against the victim even though at the time of the assault the victim is so situated as to have an impervious defense. Appellant claimed the instruction failed to inform the jury that the impervious defense must be unknown to the defendant at the time of the assault. However, appellant's knowledge of the probability of success of his or her intended action is not relevant to the jury's deliberation.id: 9717
ADW instruction was not required as a lesser related offense of attempted murder where the defense was alibi and counsel never argued the absence of evidence of intent to kill.The trial court refused defendant's requested instruction on assault with a deadly weapon as a lesser included offense of attempted murder. Defendant concedes ADW was not a lesser included offense of attempted murder, but argued the court should have instructed on ADW as a lesser related offense of attempted murder. However, the instruction was not justified in this case where the record was devoid of evidence from which a reasonable juror could find that defendant did not have the specific intent to kill. The defense presented was complete denial of culpability and alibi and at no time did defense counsel argue the absence or insufficiency of evidence of intent to kill.id: 9718
Assault with a deadly weapon does not require an identifiable and named victim.Defendant was charged with assault with a deadly weapon following an incident involving the firing of shots into a crowd. An identifiable and named victim is not a necessary element to prove assault with a deadly weapon.id: 9719
Assault with a deadly weapon is not a lesser and necessarily included offense of willfully and maliciously discharging a firearm at an occupied vehicle.Assault with a deadly weapon (Penal Code section 245, subd. (a)(1)) is not a lesser and necessarily included offense of willfully and maliciously discharging a firearm at an occupied vehicle (Penal Code section 246).id: 9720
Corpus delicti of conspiracy to commit assault with a firearm was established where four gang members were sitting in a parked car with a loaded semi-automatic weapon.Appellant was charged with conspiracy to commit an assault with a firearm. He argued his admissions were improperly admitted because the corpus delicti of the crime was not first established. However, the evidence that appellant, holding the butt end of a loaded semi-automatic rifle with a banana clip, was sitting in a parked car with three fellow gang members, combined with the deputy's expert opinion that four gang members in a car with a semi-automatic weapon suggests preparation to do a drive-by shooting, was more than adequate to establish the corpus delicti.id: 9569
Evidence supported the ADW strike notwithstanding the possibility he may not have personally used the weapon.One of the strikes alleged against defendant was for a prior assault with a deadly weapon in violation of Penal Code section 245. To support the allegation the prosecution submitted an abstract of judgment stating defendant was convicted of 245(a) ASLT GBI/DLY WPN. Defendant argued the evidence did not establish he personally used a deadly or dangerous weapon as required. However, the evidence supported the finding despite the possibility he may not have personally used the weapon.id: 9334
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245