Cal. Penal Code § 245(c); Assault with a Deadly Weapon on a Peace Officer Attorney

Assault with a Deadly Weapon on a Peace Officer
Police Misconduct Attorney Jerry L. Steering interviewed about Jovan Jimenez case

CAL. PENAL CODE § 245(C); ASSAULT WITH A DEADLY WEAPON ON A PEACE OFFICER.

Assault on a peace officer is not all that easy to define; in very large part because certain California appellate judges don’t want “bad guys” to escape criminal prosecution, even when their conduct didn’t actually violate any law in California.

In addition, when the police go “hands-on” with a civilian, it’s often all too easy for police officers and their friends at the District Attorney’s Office to get a panel of jurors to agree that the accused committed an act the likely result of which would be the application of force upon another; here a peace officer. This is especially true for the crime of assault with a deadly weapon upon a peace officer. Cal. Penal Code § 245(c).

BOUVIER’S LAW DICTIONARY AND JUDICIAL PERVERSION OF CLEARLY WRITTEN CRIMINAL STATUTES BY “CREATIVE JUDICIAL ACTIVISM” FROM THE RIGHT.

In California an “Assault” is a strange crime in California. An assault is defined as: ” . . . an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Cal. Penal Code § 240“.

In California “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”  Cal. Penal Code §  21a. Therefore, an assault with a deadly weapon must include a person actually attempting to inflict a violent injury on the person of another.

So, one cannot logically be guilty of an assault if they didn’t intend to injure another. Right? Not really; not in California.

Take the case of a person who shoots a gun in a wild and reckless manner, but not intending to injure anyone; like a biker New Year’s Eve party, just a bunch of guys/\girls shooting bullets up into the air to celebrate; not to harm another. What happens if one of those bikers at a New Years Eve party shoots his/her pistol into the air and the bullet falls back to earth and strikes another? Is that person guilty of assault with a deadly weapon? Well, not according to the clear wording of the California assault statute, as the biker would have had to intend that his/her bullet actually struck another. So, what was the California Supreme Court supposed to do when faced with this situation; like a biker shooting his/her pistol into the air on New Year’s Eve, without the intent to harm anyone.

In People v. Williams, 26 Cal.4th 779 (2001), the California Supreme Court ignored the plain language of Cal. Penal Code §  21a and held that because in 1872 Bouvier’s Law Dictionary  defined an attempt as: “(1) “[a]n endeavor to accomplish a crime carried beyond mere preparation, but falling short of execution of the ultimate design [26 Cal.4th 786] in any part of it” (1 Bouvier’s Law Dict. (1872) p. 166); (2) “[a]n intent to do a thing combined with an act which falls short of the thing intended” ( ibid. ); and (3) “an intent to commit some act which would be indictable”, that definition number three included our hypothetical; the biker celebrating by shooting bullets in the air but without the intent to harm another.

This “judicial tinkering” is the perfect example of supposedly “conservative” appellate judges engaging in extreme judicial activism. The perversion of the clear language of Section 240 is more than a difference of legitimate legal opinions between Judges. It is simply judges desiring to punish individuals for actions by them that simply are not criminalized by statute in the Penal Code. The Williams decision is so wrong and wrongful that a California Court of Appeal Opinion on this issue that followed the People v. Williams decision noted that

” . . . the Williams interpretation of section 240 is based upon a mistake of fact, which produced an error of law. Williams asserts the definition of assault in section 240 was first enacted in 1872 and bases its statutory construction on that fact. “Because section 240 was enacted in 1872 and has not been amended, we must construe the Legislature’s intent as of 1872.” ( Williams, supra , 26 Cal.4th at p. 785.)

In fact, the present definition of assault was enacted in 1850 as section 49 of the Crimes and Punishment Act. (Stats. 1850, ch. 99, § 49, p. 234.) It was codified without change in 1872 as section 240 of the new Penal Code. The Supreme Court cases interpreting the 1850 enactment, relied upon by the Code Commissioners in their report to the Legislature, state the 1850 language incorporates the common law definition of assault, which required an intent to inflict injury. This construction, consistent with Smith , would have required reversal of defendant’s conviction in this case. It would not , for reasons we discuss, have required the characterization of section 240 as a specific intent crime.

Nonetheless, we are bound by Williams . We shall conclude the defendant was properly convicted of a negligent assault on the facts of the case.” People v Wright, 100 Cal.App.4th 703. 707 (2002),

ASSAULT ON A PEACE OFFICER IS ANOTHER “OOHEY GOOEY” STATUTE THAT CAN POSE GREAT HARDSHIP AND DIFFICULTY ON INNOCENTS.

Cal. Penal Code § 245(c); Assault with a deadly weapon on a peace officer provides:

(c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

(d) (1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.

(2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years

Cal. Penal Code § 245(c)

Accordingly, if the police grab you and you instinctively move in a way to reduce the pain and force being applied to you by the police, if the cops arrest you and beat you badly enough, your local Deputy District Attorney may just falsely prosecute you to protect the offending officer. This is more common than you may think.

Jerry L. Steering interviewed on Good Morning America, with co-counsel Bob Dole in Washington, D.C. (Harbert v. U.S.A.) and with former partner Melvin  M. Bellli (The King of Torts)

Jerry L. Steering, is a Police Misconduct Attorney Specializing in Defending bogus Criminal Cases and Suing Police Officers for Violating your Constitutional Rights since 1984 for Excessive Force,  Police Brutality, False Arrest, Malicious Prosecution, K-9 Maulings, Police Beatings and Shootings and Wrongful Death, Concealing & Destroying Exculpatory Evidence and Whistle Blower Retaliation. Tel: (949) 474-1849

 

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