When is a deadly weapon not a deadly weapon?

In a recent post, I discussed the various sections of Penal Code section 245.  One of the ways that can be charged is “assault with a deadly weapon.”

So what exactly is a deadly weapon?

Case law through the years has shaped what can be a “deadly weapon” for this code section.  A deadly weapon is one that is capable of producing great bodily injury or death.  Traditional weapons, such as knives and clubs would fall into that category, but so could other common objects.  A tree branch could be a deadly weapon in the right circumstances.

But when can a weapon NOT be a deadly weapon?

A recent case in the California Court of Appeals involved a minor who used a butter knife to try and attack another person.  The kid tried to slash at the victim’s throat, making several swipes.  No matter how much he tried, the injury he inflicted was only a welt, but no cuts.  When he tried to cut the victim’s face and throat a second time, the handle broke off, yet still no injury was inflicted.  At his juvenile trial, the judge found the evidence was sufficient and upheld the charge of 245(a)(1) – Assault with a deadly weapon.

The appellate court overturned that decision, making findings that the butter knife did not qualify as a deadly weapon in this case.  They found that the butter knife was not used “in a manner as to be capable of producing and likely to produce, death or great bodily injury.”  Why?  Because no matter how hard the kid tried to inflict substantial injury, the knife simply wouldn’t cooperate.  It was an object that was unable to inflict the injury required.  He may as well have been using his fingernail.

Why is this one case decision important?  Obviously, for the minor involved, overturning his conviction is important, but it also points out an important point of our criminal justice system.  Not everything is what it seems.  Just because charges are filed does it mean that’s the end of the story.  Even judges get it wrong have to make tough calls sometimes, too.  Level the playing field with your attorney.

The entire case decision can be found here.

Joe Dane


(714) 532-3600

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