What Is Considered Felony Assault In San Mateo County?
Whether or not an assault is considered a felony assault in San Mateo County will depend on the facts of the case, the degree of injury suffered, the number of victims, if a weapon was used, the nature of the weapon, and the criminal history of the defendant. If a weapon was used, we need to be concerned about whether our client will be charged with “assault with a deadly weapon”, which is a strike under California law. There are two ways which a deadly weapon can qualify, the first is an object that is made solely for the purpose of inflicting death or great bodily injury. Then the second way was addressed in December 2018 California Supreme Court opinion. The Court held that the if an object is not made solely for purpose of inflicting death or great bodily injury, such object may still quality if such object was capable of inflicting death or great bodily injury AND the manner it was used was likely to result in death or great bodily injury.
Can I Face Charges Of Assault With a Deadly Weapon Even If I Don’t Have The Weapon On Me At The Time Of Arrest?
The weapon does not need to be on you at the time of arrest in order to be charged with assault with a deadly weapon; if you are accused of personally using the weapon, then you can still be arrested, charged, prosecuted, and ultimately convicted, so long as the fact finder or jury finds sufficient proof that you had used the weapon at the time of the offense. Of course, it would not help your case if you were arrested while in possession of the actual weapon, but there are many cases in which prosecutors have attempted to prove the presence of a gun or firearm despite one never having been recovered.
Additionally, one can be charged with assault with deadly weapon even if they never used or touched the weapon in question. One can have criminal liability as an aider and abettor to another who was the one to use the weapon in an assault.
What Is Considered Great Bodily Injury In An Assault Case In California?
Typically, the term “great bodily injury” is used in two manners. Penal Code Section 245(a)(4), prohibits assault that is likely to result in great bodily injury. It is a non-strike assault charge, which is something we often try to plea down to as a lesser offense. If you have personally inflicted great bodily injury on another person, that is an enhancement (Penal Code Section 12022.7(a)). With such enhancement added to a felony, your case becomes a strike and three years plus can be added to your sentence. On its face, the phrase “great bodily injury” just means that the injury suffered was more than minor or moderate. It will be for the jury to find beyond a reasonable doubt that that injury was “great bodily injury.”
I Was Arrested For An Assault But My Gun Was Not Loaded. Can I Still Be Convicted Of This Offense?
You can be convicted if the facts show that you used the gun as a deadly weapon. Both 1) pointing a loaded firearm at someone and 2) actual discharge of a firearm would be grounds to be charged with assault with a deadly weapon. If the firearm was not loaded, then it would have to be shown that the firearm was used in another way, such as to bludgeon. One would need to conduct the analysis of the December 2018 California Supreme Court case. If the characteristics of the unloaded firearm itself along with the manner of its use were not likely to result in great bodily injury, such as to bludgeon another person, then it could be argued that you should not be charged with an assault with a deadly weapon. We do see this
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