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

Last Modified: October 14, 2020
April 14, 2015 | Rabin Nabizadeh | Assault with a Deadly Weapon

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.

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