Assault with Weapon other than Firearm by Darren Kavinoky

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Assault with Weapon other than Firearm
by Darren Kavinoky

Assault with 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. Where someone has been charged with assault with a deadly weapon, the weapon will be confiscated and destroyed, pursuant to California Penal Code Section 245 (e).

An assault which uses force likely to produce great bodily injury, other than the use of a firearm is governed by California Penal Code Section 245 (a) (1) which reads:

“Any person who commits 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 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

Where an assault involves a school employee, PC Section 245.5 governs, which 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 school employee, and who knows or reasonably should know that the victim is a school employee engaged in the performance of his or her duties, when that school employee 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, or in a county jail not exceeding one year.”

Defenses

Where one is not the initial aggressor, but defends himself or another with the type of force that is capable of producing great bodily harm, the best defense is the theory of self-defense. Self-defense shields a person from criminal liability for the harm inflicted on the aggressor. Self-defense is an affirmative defense which excuses or justifies one’s behavior. Self-defense is defined as all the force and means reasonably necessary to prevent an injury which appears about to happen. The standard is that of a “reasonable person.” A reasonable person must believe, and have the grounds for believing, of the imminence and real threat of injury. The type of force allowed in self-defense is that force which matches the original threat and no more. For example, if an aggressor is using fists, the use of a bat (deadly weapon) exceeds the level of force being inflicted. Further, the right to use self-defense lasts only as long as the danger exists.

Assault is a general intent crime, meaning that the perpetrator need not specifically intend an assault to happen. Rather, the person need only intend their own action. However, general intent crimes can be negated by reason of an honest and reasonable mistake of fact. Therefore, a claim of self-defense may be made where a reasonable person would have mistaken the same facts that caused the assault to happen. In such an instance, the self-defense claim would be lawful.

The burden of the prosecution is to prove guilt “beyond a reasonable doubt.” Where guilt is not thus proven, the jury must make a finding of not guilty. In a self-defense case, if the jury has reasonable doubt as to whether the assault was lawful or not, then they must make a finding of not guilty. The jury is instructed of this obligation in the jury instructions which they are told by the judge before deliberations.

Author's Biography:

Darren Kavinoky is the founding partner of The Kavinoky Law Firm, a

criminal defense law firm with six offices throughout California. The

attorneys of the firm take pride in their constant continuing legal

education and unparalleled one-on-one client service. Every attorney at

the firm particpates in ten times the amount of education required by

the state bar.

In addition, the attorneys provide each client with a personal cell

phone number, and they make themselves available to clients at all

times. The attorneys of The Kavinoky Law Firm understand that there is

only one case that matters to you: yours! They are dedicated to treating

each client with personal service to ensure satisfaction.

Darren has defended numerous high-profile clients, developed key

relationships with media leaders, and earned public support for clients