When is Assault with a Deadly Weapon a Felony?

A Caltrain operator was hospitalized after allegedly being attacked following San Francisco’s Pride festival. According to the San Jose Mercury News, Maria Posada-Valderrama assaulted the Caltrain worker while being visibly intoxicated.

Witnesses say that Posada-Valderrama and her friend were asked to get off the train because they were heavily intoxicated, rowdy, and causing problems for other passengers. She and her friend continued to argue with the Caltrain operator, and they each allegedly spit on her and then hit her with a purse.

Law enforcement reports that footage from surveillance cameras show Posada-Valderrama attacking a second Caltrain operator who was escorting her off of the property. The first Caltrain operator suffered a serious concussion and had to be hospitalized overnight, the Mercury News reports.¹

The 22-year-old woman was booked on four felony counts, including assault with a deadly weapon. Could she be convicted of felony assault with a deadly weapon for using her purse and hands to attack the Caltrain operator? Let’s take a look at what factors a judge and jury will consider…

Assault with a Deadly Weapon in California (Penal Code Sections 240-245)

Assault is described by California law as, “an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.”² This does not necessarily mean you made physical contact with the other person. The prosecution simply must prove that you engaged in a physical act that led another person to reasonably believe you were trying to injure him or her.³

To be convicted of an assault charge, the following four criteria must be met:

• You did something that resulted in using force against someone else;
• You did so willfully;
• A reasonable person would believe that your act could cause harm; and
• You had the ability to apply force to the other party.⁴

To be convicted of assault with a deadly weapon under California Penal Code Section 245, the prosecution must also prove that you used a deadly weapon to cause bodily harm or injury during the assault. What does the law consider a deadly weapon? Aside from firearms, you could be found guilty of assault with a deadly weapon if you used:

• Bombs;
• Knives;
• Baseball bats;
• Lamps;
• Other household items; or
• A purse.

Consequences of Committing Assault with a Deadly Weapon

If you are being charged with assault with a deadly weapon under California Penal Code Section 245, you face either misdemeanor or felony penalties, depending on the circumstances of your case. A misdemeanor conviction can result in a sentence of up to one year in county jail.

For a felony, you can face a sentence of two, three or four years in state prison and up to $10,000 in fines.

Is Assault with a Deadly Weapon a Felony?

Whether you are charged with a misdemeanor or felony for assault with a deadly weapon depends on several factors. These include:

• The type of weapon used to commit the alleged assault;
• Whether the other party was injured and how severe the injury was; and
• Whether you committed the assault against a firefighter, police officer, or other protected person while he or she was performing his or her duties.

For example, using a firearm such a semi-automatic weapon to commit assault is a felony under California Penal Code Section 245. The penalties for this increase to four, eight, or twelve years in state prison and fines up to $10,000.

Committing this crime against a peace officer with such a violent weapon can also result in up to nine years in state prison. A felony charge for assault with a deadly weapon is typically reserved for more harmful weapons such as guns, knives and bombs.

If you are facing felony assault with a deadly weapon charges, your skilled attorney can raise several defenses on your behalf, including:

• The deadly weapon did not actually cause bodily harm of the other party;
• You were acting in self defense or defending somebody else; or
• You did not intentionally harm the other person.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

If you are facing allegations of assault with a deadly weapon, you will need a knowledgeable attorney to aggressively defend you. Our attorneys at Wallin & Klarich have been successfully defending our clients accused of assault for over 40 years.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our experienced attorneys are available to help you no matter where you live.

Call us at (877) 4-NO-JAIL or (877) 466-5245 to discuss your case. We will get through this together.

<sup>1. [http://www.mercurynews.com/ci_26058428/female-caltrain-officer-hospitalized-after-assault-by-sf]↩
2. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=240-248]↩
3. [Id.]↩
4. [http://law.onecle.com/california/penal/245.html]↩</sup>