CASE ALERT

By: Ray Hill, Professor Emeritus, Santa Rosa J.C.

Assault with a Deadly Weapon (245(a)(1) P.C. and Assault with Force Likely to Cause Great Bodily Injury (245(a)(4) P.C.) are Different Definitions Within the Same Crime (Peo. v. Aguayo California Supreme Court (8/15/22) #S254554, in 2022 Cal. Lexis 5013).

   Defendant was repairing her bicycle when her 72-year old father accidently turned on a sprinkler and dampened her cell phone charger. Defendant became irate, yelled expletives and insults, and grabbed a bicycle lock and chain. The father turned his back and started to walk away when the defendant struck him in the back with the lock and chain. During the ensuing struggle, she struck her father 50 times about the head, chest and arms and threw a ceramic pot striking him in the head in a location where he had sustained two brain surgeries. The father was transported to a local hospital, but sustained only minor injuries. Defendant was convicted in San Diego County Superior Court of both Assault with a Deadly Weapon and Assault by Means of Force Likely to Create GBI and received a punishment for multiple acts. 4DCA upheld these convictions and punishments.

   California Supreme Court reversed.  It ruled that Assault with a Deadly Weapon and Assault by Means of Force Likely to Create GBI are different statements of the same offense. A defendant cannot be convicted and punished for both types of aggravated assault committed during the same course of conduct (654/954 P.C.). The case was remanded back to the trial court for further disposition.

   245(a)(1) P.C. includes an assault (or battery) with an object, instrument, or weapon (other than a firearm) used in such a manner as to be capable of producing and is likely to produce death or great bodily injury. This instrumentality is physically held or used by the suspect to complete the corpus. No touching or injury need take place as long as the perpetrator has the requisite general intent to injure, i.e., willfully and unlawfully.

    245(a)(4) P.C. includes an assault (or battery) by any other physical means capable of producing and is likely to produce death or great bodily injury. Again, no touching or injury need take place.

   What about the professional fighter/kickboxer who claims “my hands and feet are deadly weapons”! The California Supreme Court has ruled that a deadly weapon “must be extrinsic (separate) to the human body” (Peo. v. Aguilar (1997) 16 Cal. 4th 1023). So hands and feet are not inherently deadly weapons, but the “manner of use” in assault (or battery) could be charged under Assault with Force Likely to Cause Great Bodily Injury.

   Good to keep these distinctions in mind when investigating, booking and report writing in 245 P.C. cases.

Stay Safe,

RH