Can a Sidewalk be Used for Assault with a Deadly Weapon? - Criminal Law - California Case Law
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Can a Sidewalk be Used for Assault with a Deadly Weapon?

The sidewalk, when used improperly, can be a deadly weapon.

The Second Appellate District Court upheld a juvenile offender’s conviction for assault with a deadly weapon this week, finding that the defendant didn’t actually have to touch the sidewalk to use the sidewalk as a deadly weapon. (Here, the defendant allegedly punched, stomped, and kicked the victim’s face while the victim was lying on the sidewalk.)

Fourteen-year-old appellant J.L. got in a fight with two schoolmates in his driveway in 2010. According to court records, the schoolmates called J.L. moderately-offensive names. J.L. then chased the boys, and punched and kicked one of them in the face. After the boys complained to the police, J.L. was charged and convicted with assault with a deadly weapon and assault with force likely to produce great bodily injury.

J.L. appealed, arguing that neither his fists, feet, nor the sidewalk qualified as deadly weapons. While the court agreed that his hands and feet alone were not deadly weapons, they disagreed with his sidewalk argument.

The court drew parallels between J.L.'s case and People v. Russell, a case in which a defendant pushed a victim in the path of an oncoming car, causing the victim's body to be hit by the car windshield. In Russell, the Seventh Appellate District Court upheld the defendant's assault with a deadly weapon conviction. That court found that the defendant used the car as a deadly weapon, even though he never touched the car.

As the same logic could be applied to J.L. and the sidewalk, the court upheld the conviction.

There was, however, some relief for J.L.: Though the court found there was more than sufficient evidence to conclude that J.L.'s hitting, kicking and stomping were likely to cause the victim great bodily injury -- even if it did not actually do so -- the appellate court held that J.L. could not be charged with both assault with a deadly weapon and assault likely to cause great bodily injury because the petition could not be sustained on more than one count for a single incident of aggravated assault under the relevant statute.

If you face a similar, double-count situation with one of your clients, cross your fingers that you will be successful in persuading the court to dismiss the assault with a deadly weapon count. The court notes, "Assault with a deadly weapon is a serious felony. Assault likely to produce great bodily injury is not necessarily so."

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