Assault with a Deadly Weapon

California Laws 2016 – Concealed Weapons on School Grounds (CA Penal Code 626.9 & 30310)

The California state legislature enacted 807 new laws during the 2015 legislative session

The rules governing the carrying of licensed concealed weapons on or near school grounds (CA Penal Code sections 626.9 & 30310) were changed this year.

The changes allow the holder of a valid license to now carry a concealed firearm to carry a firearm in an area that is within 1,000 feet of, but not on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12.

On the other hand, the changes deleted the exemptions that previously allowed a person holding a valid license to carry a concealed firearm to bring or possess a firearm on the campus of a university or college and that previously allowed a person to carry ammunition or reloaded ammunition onto school grounds if the person is licensed to carry a concealed firearm.

The new law did create an additional authorization for a person to carry ammunition or reloaded ammunition onto school grounds if it is in a motor vehicle at all times and is within a locked container or within the locked trunk of the vehicle.

California Laws 2016 – Gun violence restraining orders (Assembly Bill 1014)

The California state legislature enacted 807 new laws during the 2015 legislative session.

Numerous and substantial changes were made to the laws regarding gun violence restraining orders. The full details of the changes, which were enacted by Assembly Bill 1014.

Major provisions of the bill authorize courts to:

Issue a temporary emergency gun violence restraining order if the court finds that there is reasonable cause to believe that the subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue an ex parte gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of harm to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue a gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a period of one year when there is clear and convincing evidence that the subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

The new law authorizes the renewal of the order for additional one-year periods and permits the restrained person to request one hearing to terminate the order during the effective period of the initial order or each renewal period.

The new law requires courts, upon issuance of gun violence restraining orders, to order the restrained person to surrender to the local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns and requires the local law enforcement agency to retain custody of the firearm or firearms and ammunition for the duration of a gun violence restraining order.

To help protect individuals against false claims in applications for gun violence restraining orders, the new law makes it a misdemeanor for anyone to file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass the person who is the subject of the requested order.

Finally, the new law also provides that a person who owns or possesses a firearm or ammunition with the knowledge that he or she is prohibited from doing so by a gun violence restraining order is guilty of a misdemeanor and shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a 5-year period, commencing upon the expiration of the existing gun violence restraining order.

California Laws 2016 – BB guns in public (CA Penal Code 16700(b)(5))

The California state legislature enacted 807 new laws during the 2015 legislative session.

These days, of course, carrying around a realistic-looking BB gun can get you killed. In any effort to reduce the likelihood of such a tragic event happening in California, several provisions of law relating to BB, pellet, paintball and airsoft guns were changed this year.

Penal Code section 20165 previously excluded all BB guns from the existing prohibition on “imitation firearms”. Under the new law, BB, pellet, paintball and airsoft guns are considered “imitation firearms” and therefore illegal unless they meet specified requirements, the full details of which are available here:

Among the exceptions are the color requirements designed to make these recreational guns readily identifiable as non-lethal. New Penal Code section 16700, subdivision (b)(5), provides that these guns are not considered “imitation firearms” when they consist of:

“A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device’s complete contents.”

Driver Accused of Assault with a Deadly Weapon After Hitting Cyclist From Behind (CA Penal Code 245)

When people think of an assault with a deadly weapon (more commonly referred to as an “ADW”), the image of a motor vehicle rarely comes to mind. Yet, a man from Bolinas (62) has recently been arrested for just such a violation of the law, in a supposed instance of road rage. A bicyclist was apparently traveling down Point Reyes and Petaluma Road in Marin County when he encountered the 62-year-old man’s car. Evidently, the cyclist had moved into an improper lane in order to take a photograph and the driver was angered by this, yelling and making obscene gestures. The driver was arrested on suspicion of assault with a deadly weapon after having allegedly struck the cyclist from behind.

California law concerning assault with a deadly weapon is quite broad. Any time that one individual assaults another with a weapon that could be considered, subjectively, ‘deadly,’ or in a circumstance in which serious injury may occur, they may have committed an ADW (CA Penal Code 245). Normally, when it comes to an ADW, the weapon in question is a firearm, knife, or other such common weapon. However, the law also considers dogs and even cars ‘deadly’ when they are used to injure or attempt to injure another person.

ADWs in California are technically ‘wobblers,’ meaning that the prosecutors in charge of the case determine whether or not to treat the crime as a felony or as a misdemeanor, depending upon the weapon used, whether or not there was an injury, and other considerations specific to each case. If convicted, the Bolinas man in the case above could spend up to 1 year in county jail. However, a conviction on a felony charge of ADW could mean facing up to 4 years in state prison.

Sacramento Band Assaulted with a Deadly Weapon (CA Penal Code 245)

A 25-year-old man was recently arrested on charges of assault with a deadly weapon when he allegedly attacked and stabbed members of a Sacramento musical group, the Slaves, with a large, “Rambo-type’ hunting knife.  Local law enforcement officials have now classified the occurrence as a hate crime.  Members of the Slaves were injured, including the lead guitarist, whose hand was broken during the incident as he attempted to protect a friend and fellow band mate.  However, none of the musicians sustained life-threatening injuries and are expected to continue with their planned gigs.  Police determined that the attack was motivated by hate after learning that homophobic slurs were used during the attack, which seems otherwise unprovoked.

According to California law, sentencing enhancements may come into play when it is clear that a particular crime has been motivated by hatred for another person or group of persons due to their membership, or assumed membership, in a particular protected class.  These include crimes motivated by hatred for another individual or group of individuals based on their sexual orientation, disability status, ‘race,’ ethnicity, religion, or the like.  As the alleged perpetrator of the aforementioned crime stands accused of assault with a deadly weapon, often more commonly referred to as an “ADW” (CA Penal Code 245), he may already be looking at a variety of penalties.

An ADW is a ‘wobbler’ in California, meaning that prosecutors must determine, depending on the fact of the case at hand, whether they will treat it as a misdemeanor or as a felony.  Felony charges will likely result in this particular case due to the violence inherent in the attack.  Penalties for such an assault with injuries often include up to 4 years in state prison.

However, there is also the matter of the crime being designated as a ‘hate crime’ to consider (CA Penal Code 422.55, 422,6, 422.7, and 422.75).  ‘Hate crime’ penalties for felony charges include an additional maximum of 3 years in prison, to be added to whatever sentence is handed down by the court pertaining to the original crime.

 

Richmond Man Assaulted with BB Gun on Wildcat Canyon Trail (CA Penal Code 246.3)

A 50-year-old man from Richmond (name withheld for privacy) was taking a walk near the Wildcat Canyon Trail in Wildcat Canyon Regional Park when he was suddenly struck in the nose with a BB gun.  Turning around, he noticed that a stocky, dark-haired teen was standing there with a gun; the teen quickly ran away and law enforcement agents were unable to find him.  The Richmond man seems to have suffered a nosebleed due to the incident, but he was not seriously injured.  Although this may seem like a minor incident, it has renewed interest in whether or not BB guns should be considered dangerous weapons, even deadly.

BB guns and other imitation guns have long been ‘under fire’ in California for quite some time.  In August of 2014, Senate Bill 199 made it a misdemeanor to carry an imitation firearm in public, if it is not painted in several approved bright colors.  California Penal Code 246.3 (“Negligent Discharge of a Firearm”) pertains to the discharge of many types of firearms, in particular, BB guns are included.  The law dictates that any person who purposefully discharges a BB gun, or other firearm, in a manner that could be considered grossly negligent (meaning that someone could get hurt, seriously injured, or killed) may be charged with negligent discharge of a firearm.

However, you must have purposefully used the BB gun under circumstances in which you knew that you might cause great bodily injury or death.  If caught and convicted, the teen involved in the Wildcat Canyon shooting may face severe penalties. CA PC 246.3 is a ‘wobbler’ in California; this means that prosecutors will be the ones to determine whether the crime is treated as a misdemeanor or as a felony. Felony conviction may mean 3 years in prison, whereas a misdemeanor conviction might end in 1 year in county.

Young Child Assaulted by Stranger in Marina (CA Penal Code 245(a)(1))

In a seemingly random case, a strange man accosted a 5-year-old girl while she was walking with her mother in the Marina District early Wednesday morning.  As the two proceeded to Union and Octavia, a man who seemed to look as if he was homeless reached out, grabbed the young girl’s neck, and threw her into a nearby wall.  He was arrested on charges of aggravated assault, false imprisonment, and child abuse.

Under California law, a distinct difference is drawn between the crime of ‘assault’ and the crime of battery.  Thus, assault (CA Penal Code 240) is defined as the mere attempt to cause bodily injury to another person, whereas the term ‘battery’ only applies when bodily injury is actually caused.  While simple assault is considered only to rise to the level of a California misdemeanor, aggravated assault is quite another matter.  Simple assault only involves intent, a person’s assailant need not even touch the alleged victim.  Aggravated assault (CA Penal Code 245(a)(1), however, is also often referred to as “assault with a deadly weapon.”  This means that prosecutors may charge an individual with aggravated assault if either a) a deadly weapon was used in a particular assault or b) when enough force was used in the assault that it is likely that serious bodily injury could have occurred or did occur.

Due to the vast number of different circumstances that could be involved in any particular assault, this crime is considered a ‘wobbler’ in California.  What this means is that prosecutors are the ones who determine, based on the facts of a particular case, whether to treat it as a misdemeanor or as a felony.  Whereas a conviction on the basis of a misdemeanor aggravated assault charge could mean spending 1 year in county jail and paying a $10,000 fine, a felony conviction of the same might warrant up to 4 years in state prison and a ‘strike’ on a person’s record pursuant to the California “Three Strikes” law.

Possession of Illegal Weapons (CA Penal Code 30600)

It seemed like an unusual alliance, San Francisco pot clubs and local law enforcement working together?  Yet, this type of cooperation is something that seems as if it will be indicative of the future of the Bay area.  Every so often, police in S.F. host a gun buyback.  This offers an opportunity for individuals who are in possession of illegal or banned weapons, like assault rifles, to receive anywhere from $100 to $200 for turning these guns in.  Who funded the enterprise this year?  It was several different S.F. pot clubs, making it clear that they are an integral and positive part of their communities.  Police were happy to have them on board and deemed the event, which was in the Western Addition, a success.  Over 90 guns were taken off of the streets in one Saturday and pot clubs paid for all of them.

Gun violence remains an issue in the Bay area and laws relating to gun violence have become stricter over the years.   California law dictates that all state gun sales go through an authorized dealer, and that the person buying them is subjected to a background check.  California has also banned most assault weapons and any .50 caliber rifles, deeming them too dangerous to be on the streets (CA Penal Code 30600) which prohibits selling, manufacturing, or possessing these types of guns without a permit.  If an individual is found guilty of a violation of CA PC 30600, they may be subject to up to 3 years in county jail (if it is prosecuted as a felony) or as little as 1 year in county (if prosecuted as a misdemeanor).

Generally, gun buyback programs are accepted as a positive step in controlling gun violence in the city and the most recent one is no exception.  In fact, it has been reported that the involvement of local pot clubs has provided law enforcement with much needed financial support for their endeavors, while, at the same time, alerting citizens to the fact that pot clubs are not the source of violence, but are, in fact, working against it.

 

San Leandro Man Accused of Assault with a Deadly Weapon on Police Officers (CA Penal Code 245)

When law enforcement officials from the Hayward police department pulled over a 2004 InfinityFX35 Sunday afternoon, they did not expect that the driver might be in possession of a firearm, or that it would be fired.  No one is certain how it happened, or whether it happened as has been reported, yet, Hayward police allege that they were forced to return fire against the driver of the car.  Now, a 28-year-old man has been arrested, not only in conjunction with this incident, but also with another set of shots fired in the Harder Road and Mission Boulevard area Saturday evening.  The man stands accused of assault with a deadly weapon (2 counts), attempted murder (2 counts), and of being a felon carrying a firearm.

“Assault with a Deadly Weapon”, often referred to as an “ADW,” is addressed in California Penal Code 245.  This crime may be committed by the actual use of a weapon that is ‘deadly’ or by using any means of force that might end in great physical injury to another person.  This law distinguishes simple ‘assault’ from more potentially serious assaults.  In California, an ADW is a ‘wobbler.’  This means that prosecutors handling the case must determine how serious the particular circumstances of a case are, and then decide whether to treat it as a misdemeanor or as a felony.  Prosecutors’ decisions are often based on several different factors, including the type of weapon used during the assault, the injuries sustained by the alleged victim, and whether the alleged victim falls into the class of ‘protected persons’ (like a police officer).  A misdemeanor conviction will likely mean that an individual will spend 1 year in county jail.  Felony conviction penalties include up to 4 years in state prison, unless the weapon in question is a firearm.  In that case, it would become “Assault with a Firearm” (CA Penal Code 245 (a)(2)).