An assault that seriously injures someone is usually charged as a felony if it was particularly violent or done with intent to inflict great bodily injury. Under Penal Code 245(a)(4), such an assault is a straight felony.
An assault by means likely to produce great bodily injury under California law is:
- An act1 by the defendant that was likely to result in the use of force against someone
- And which was done willfully
- And the defendant was aware of facts that a reasonable person would believe directly and likely result in force being applied
- The force used was likely to cause great bodily injury and,
- The defendant had the present ability2 to apply force
f you threw a knife lightly or some light object that lacked the force necessary to cause significant injuries or the alleged victim was far enough away that a reasonable person would have felt that it was not intended to harm them or could have harmed them, then you lacked the present ability to apply force. There must be the appearance of present ability. The same is true if you had a toy gun that the alleged victim knew was a toy. However, if you used a toy gun that the person believed was real, then an assault took place though you may not be charged with felony assault unless you were robbed.
This code section can be used when no firearm or other weapon was used.
An assault by its legal definition need not have resulted in bodily harm. These include taking a swing at someone with the intent to apply force, throwing an object like a rock or a dish at someone and narrowly missing them.
Whether the prosecution will charge you with felony assault, or if the trier-of-fact will convict you of assault as a felony or misdemeanor, depends upon what constitutes “great bodily injury.”
A serious injury can constitute great bodily injury for purposes of charging someone with felony assault under PC 245(a)(4). It is any significant or substantial injury but it does not necessarily have to be one that causes serious or permanent impairment of a physical condition.
- Broken bones including a broken nose
- Severe black eye that leaves bruises for weeks
- Second degree burns
- Contusions and severe swelling
- Gunshot wounds
- Knife wounds that are deep, cause heavy loss of blood or leave permanent scarring
- Strangulation to the point where a victim passes out
- Bloody injuries
- Bruising and soreness after a sexual assault
- Permanent disfigurement
- Internal organ damage
For purposes of this code section, having to receive medical attention is supportive in proving that great bodily injury did occur or that the force threatened or applied would likely have resulted in any of these injuries.
All elements of a crime must be proved by the prosecution or state by proof beyond a reasonable doubt. It does not mean the complete absence of doubt. If there is a reasonable alternative to the facts that point to guilt or if reasonable minds might differ as to guilt or innocence, then reasonable doubt exists.
Assault is relatively easy to prove. The victim usually has evidence of the force applied though it is not required in order to be convicted under PC 245(a)(4); only that you had the means and intent to inflict great bodily harm. If there are witnesses, then you will have to assert self-defense or some other defense for the assault.
To prove that the force used was likely to cause great bodily injury, the prosecutor need not prove that any injury was inflicted but that the force used or applied was likely to produce it. This might include throwing acid at someone, dousing them with gasoline but not setting them on fire or throwing a knife with the intent to harm.
Any of the injuries that could have been produced by these objects or by the application of force is likely to cause severe burns, internal injuries, substantial loss of blood, severe disfigurement or other substantial injuries.
A violation of PC 245(a)(4)3 is a wobbler offense meaning it can be charged as either a misdemeanor or felony. If convicted you face:
|Fine||Up to $1,000||Up to $10,000|
|Jail or prison||No to exceed 1 year county jail||2, 3, or 4 years state prison|
|Strike||No||Yes if GBI is alleged|
In California, a prior conviction counts as a strike if it was for a serious or violent felony4. The three strikes law significantly increases the prison sentences of persons convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence.
Most felonies involving violence are included for three strikes purposes. This includes specific crimes, like muder and mayhem and rape. It also includes generalized criminal conduct offenses such as felonies in which the defendant personally inflicted great bodily injury on the victim, felonies involving California gang enhancement, and felonies where the defendant used a firearm.
This means that an assault with a deadly weapon is a conviction used for California three strikes purposes. Under three strikes law if a person has a prior felony counting as a prior “strike”, then when sentencing on a 2nd offense, the defendant will be sentenced to double the prison term on the current conviction. If the defendant is facing a 3rd offense it triggers a 25-year to life prison sentence if the third offense is also a “strike” offense. But if the third offense is not a strike offense, the defendant will still face an enhanced sentence. He/she will be sentenced to twice the normal sentence for the third offense.
There are a number of defenses to this crime that your criminal defense lawyer can use depending upon the facts and circumstances of your case:
Self-defense is an affirmative defense meaning that you will have to prove its elements to be exonerated of assault. This includes:
- You reasonably believed you or another person were in imminent danger of physical harm
- And you fought the person who threatened you with only enough force to subdue that person or otherwise defend yourself
If you used more force than necessary, you lose the defense. In this case, if you were attacked with a deadly weapon, then using significant force or the threat of it to protect yourself or others from imminent danger of physical harm would be justified.
Although not a complete defense, if you can show that the victim’s injuries were not substantial or significant, then a jury or judge could find you guilt of a lesser offense such as simple assault or you could be charged under a different criminal code section and be offered a misdemeanor plea.
For instance, if the victim did not receive any medical care or it was minimal, or the assault itself was not sufficient or likely to produce great bodily injury, then you cannot be convicted under this code section. Throwing a punch or a slap, or throwing an object at someone might not be enough for the prosecutor to prove that the force used was likely to produce significant injury.
You may still be charged, however, with a lesser degree of assault.
Occasionally, someone’s act is construed or interpreted by others as willfully trying to inflict harm on another person. If you were being playful but overdid it or threw something without knowing a person was standing nearby, there is no willfulness or deliberate act to harm someone.
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- With a deadly weapon other than a ﬁrearm/a ﬁrearm/a semiautomatic ﬁrearm/a machine gun/an assault weapon/a .50 BMG riﬂe [CALCRIM 875 (2017)] [↩]
- “To Have Present Ability to Inﬂict Injury, Gun Must Be Loaded Unless Used as Club or Bludgeon” [CALCRIM 875 (2017)]. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [82 Cal.Rptr.2d 413, 971 P.2d 618] This Instruction Affirmed. People v. Golde (2008) 163 Cal.App.4th 101, 122–123 [77 Cal.Rptr.3d 120 [↩]
- Penal Code 245(a)(4) – Any person who commits an assault upon the person of another 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. [↩]
- California Penal Code 1192.7(c), 667.5(c [↩]