Assault With a Deadly Weapon vs. Attempted Murder; Criminal Defense Perspective in California Law
But I didn’t try and kill anyone. I hear it a lot. So why am I charged with attempted murder and not assault with a deadly weapon? It’s a very serious and complicated legal question. First, the decision to charge crimes is in the exclusive discretion of the district attorney. A lawyer or lawyers at the DA’s office decide if a crime should be charged as an attempted murder and the defendant could face life in prison, or the crime should be an ADW and the defendant could be facing some number of years in prison or could even get probation in some case.
Assault is the intentional causing of “apprehension”. Assault with a deadly weapon simply adds the element of the deadly weapon which could be a gun, a knife, force likely to cause great injury or other things. Attempted murder requires an intent to kill and at least one step in furtherance of that intent to kill.
Fighting the two charges is also complicated. The best defense to an attempted murder is often trying to eliminate the intent element. If we can prove to the jury or convince a DA that there was no intent to kill, the complexion of the case changes in a very significant way. We go from a situation where we are facing a minimum of 15 to life in prison (or more) to a case where we could go home the next day. This is not to say there would be no punishment for an ADW, it’s simply that it’s no longer a life case and is even probation eligible. In some cases it may not even be a strike offense and can be reduced to a misdemeanor.
ADW is punishable by 2 to 12 years in prison depending on the specific Penal Code Section, but there could be additional time for special allegations, priors or other things. One of the big risks with litigating a serious assault case is the very real possibility of the case becoming a murder case at some point down the road, usually after the preliminary hearing. If the evidence at the preliminary hearing is favorable for the prosecution, they may feel like they have the ability to convict on the more serious charge. In the alternative, they may file the more serious charge to help leverage a settlement prior to trial. Few people want to go to trial on a life case when they can settle the with no risk for a short, fixed term in prison or even better.
In either the case of an attempted murder charge or an Assault with a deadly weapon charge, the best defense is a strong offense. Engage with your lawyer early in the proceedings. Make sure your lawyer and his investigative team is conducting his investigation early on. Don’t let your lawyer wait until after the preliminary hearing before he starts working on the case. This could be weeks or months later. Witnesses and evidence could be lost. Valuable bargaining power could be left behind. Favorable settlements often come from quality investigation. When the district attorney feels they have some problems with their case, that is when they are at their most vulnerable.
If you or someone close to you is facing a serious assault charge or even attempted murder, call a lawyer with a proven track record of success. Call someone who does criminal defense every day and has been battling inside of the courtroom for over 20 years.
Attorney Jeffrey Vallens, (818) 783 5700, (805) 230-3651, or email: vallenslaw@yahoo.com