Domestic violence is treated as a serious offense in California, much more so when the offense involves a deadly weapon. In California, domestic violence involving deadly weapons can result in a charge of assault with a deadly weapon or assault with a firearm.

The consequences of a charge of assault with a deadly weapon may differ from those of a domestic violence crime such as spousal (or domestic) battery. In this light, offenses of domestic violence involving deadly weapons can increase penalties.

Spousal battery, a California domestic charge, is defined as:

Willful and unlawful use of force or violence upon the person of another when that person is a spouse or former spouse, a person the defendant is cohabiting with, a person who is the parent of the defendant's child, a fiancé or former fiancé, or a person with whom the defendant has or has had a dating relationship with.

Spousal battery is punishable by up to one year in a county jail, a fine of up to $2,000, or by both fine and imprisonment.

Assault with a deadly weapon is defined as:

An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another with a deadly weapon or instrument other than a firearm.

Assault with a deadly weapon is punishable by two, three, or four years in a state prison or up to one year in a county jail, a fine of up to $10,000, or by both fine and imprisonment. If the assault involved a firearm, there is a minimum term of imprisonment of six months.

Crucially, there is no requirement that the weapon was used. Even just attempting to commit a violent injury on another can be considered assault with a deadly weapon in the eyes of the court. Let's look at a few examples to illustrate the legal definition of assault with a deadly weapon and assault with a firearm.

John and Mary had an argument wherein John pointed a loaded gun at Mary. John did not fire the gun, but Mary called the police. John could be charged with assault with a firearm because he attempted to commit a violent injury and had the present ability to do so.

Sam got angry with another bar patron. He pulled out his knife and threatened to use it against the other person. Sam could be charged with assault with a deadly weapon.

During a fight with her husband, Jane grabbed a heavy wrench from the garage and attempting to swing it at her husband's head. Jane could be charged with assault with a deadly weapon.

Enhanced Penalties

As long as the alleged victim of the incident falls under California Family Code §6211, the judge can treat the offense as one involving domestic violence. This results in different consequences than assault with a deadly weapon does alone. These penalties are mandatory under California Penal Code §1203.097. Specifically, if the victim falls under one of the definitions under FC §6211 and the judge places the defendant on probation, the probation should be a minimum of 36 months, the court may issue a criminal protective order, the defendant will be ordered to pay a fine of a minimum $500 (plus penalty assessments), and be ordered to complete a 52-week batterers intervention program.

Weapon Seizure

Law enforcement may seize any firearms and deadly weapons at the scene of a domestic violence crime, even if the aggressor is arrested. In some cases, the weapon could be used as evidence, in which case it will be collected by law enforcement. Typically, law enforcement may only take temporary custody of weapons in plain sight. However, they may take custody of weapons found in lawful searches. Firearms and deadly weapons are held for at least 48 hours. Law enforcement will generally not release a firearm back to its lawful owner until its use as evidence has been served, following the resolution of the case.

Call a California Domestic Violence Defense Attorney for Help

If you are facing charges for any crime involving domestic violence, you need to be working with an attorney. These cases can be very fact specific. Speak with a California domestic violence defense attorney if you are facing charges. Involving an attorney early on can help mitigate the negative consequences of your offense and give you peace of mind knowing your rights are protected.

If you are facing domestic violence charges in the Tulare, Fresno or Kings County area, call experienced criminal defense attorney Christopher Martens today for expert counsel. At The Law Offices of Christopher Martens, we can help you fight your charges and clear your name. With over ten years of criminal defense experience, attorney Martens is ready to defend your rights.  Contact our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] to discuss a possible plan of action for your case.