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Back Assault on Police and Firefighters by Darren Kavinoky Assault on Police and Firefighters Where a crime is committed against a police officer or firefighter, the punishments are usually increased. The requirement is that the assault on the police officer, otherwise known as peace officers, or firefighter must be performed while someone in that category is performing in the scope of their duties, and the person committing the assault must know that the person is in these categories and are performing their duties. The California criminal jury instructions, known as CALJIC, define peace officers as: „X Any sheriff, undersheriff, or deputy sheriff, employed in that capacity, or a county. „X Any chief of police, employed in that capacity, of a city, or any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, or a city. „X Any chief of police or police officer of a district authorized by statute to maintain a police department. „X Any marshal of deputy marshal of a municipal court. „X Any member of the California Highway Patrol (CHP), whose primary duty is the enforcement of the provisions of the Vehicle Code (or of any other law relating to the use or operation of vehicles upon the highways as that duty is set forth in the Vehicle Code. CALJIC defines firefighters as: ¡§Any person who is an officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, whether the person is a volunteer or partly or fully paid, while he or she is actually engaged in firefighting, fire supervision, fire suppression, fire prevention, or fire investigation is a ¡§fireman¡¨ or ¡§firefighter.¡¨ Assault with a Firearm Assault with a firearm is governed by California Penal Code Section 245. Assault with a firearm is an aggravated assault in which the defendant, with a firearm, threatens a person with death or serious bodily injury. An aggravated assault is an assault accompanied by circumstances that make it more severe, namely the use of a firearm, or the intent to commit another crime, or the intent to cause serious bodily harm. „X Any person who commits an assault with a firearm upon a peace officer or firefighter, engaged in the performance of his or her duties, will be punished by imprisonment in the state prison for 4, 6, or 8 years. „X Any person who commits an assault upon a peace officer or firefighter with a semiautomatic firearm engaged in the performance of his or her duties, will be punished by imprisonment in the state prison for 5, 7, or 9 years. „X Any person who commits an assault upon a peace officer or firefighter engaged in the performance of his or her duties, with a machine gun, assault weapon, or a .50 BMG rifle, will be punished by imprisonment in the state prison for 6, 9, or 12 years. Assault with a Deadly Weapon (other than firearm) There are many means of assault with a deadly weapon other than firearms, which are generally defined as those weapons capable of producing great bodily injury. For example, stun guns, knives, bat, hammer, machetes, cars, motorcycles, and any other weapon capable of producing great bodily injury (one can pretty much use their imagination here). Where an assault involves a peace officer, PC Section 245 (c) governs. This Section reads: ¡§Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 3, 4, or 5 years.¡¨ Defenses The act of assault, which is described as the willful application of physical force upon another person, is not a crime where the assault was done in self-defense or in the defense of another person. The lawful self-defense, or defense of others, takes place where it is reasonably believed that such force is necessary to prevent an imminent unlawful application of force. In terms of peace officers and firefighters, the key word is ¡§unlawful.¡¨ Where the use of force is lawfully made, such as in a lawful arrest, it is not reasonable to offer resistance, and the law offers no respite here. But where an officer or firefighter has exceeded their duties and unlawfully uses force to create great bodily injury, then it is reasonable to use that amount of force necessary to avert the imminent danger. The burden to prove that the self-defense was not lawful is on the prosecution. In a court of law, the burden of the prosecution is to prove the defendant¡¦s guilt ¡§beyond a reasonable doubt.¡¨ Where a reasonable doubt is created, a jury must find that a defendant is not guilty. The crime of assault is a general intent crime, meaning that the defendant intended only his own actions, and not the end result. Such a finding may be negated where it is determined that there was a reasonable and honest mistake of fact. If so, the jury must make a finding of not guilty. Author's Biography: If you stand accused of a crime in or around Los Angeles, Ventura, Orange, Riverside, San Bernardino, San Diego, or San Francisco Counties in California, you can entrust criminal defense attorney Darren Kavinoky to provide the expert legal advice needed to solve your problem.
The Kavinoky Law Firm is delighted to announce that criminal defense lawyer Darren T. Kavinoky has been named a Super Lawyer Rising Star in the September, 2005 issue of Los Angeles Magazine. Additionally, Darren was featured in NEWSWEEK.
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