ADW as a strike?

Proposition 36 – Changes to 3rd Strike Law

Does Assault with a deadly weapon, if a knife is used,
Penal Code 245 a 1 count as a strike under the 3 strike law 1170.12 or 667?

Here’s what I found on probably the best and most comprehensive CA Criminal Law website.

2.3. Assault with a deadly weapon and California’s “three strikes” law

Penal Code 245 assault with a deadly weapon can be a strike under California’s “three strikes” lawIF the allegation is that you either

  • inflicted “great bodily injury” on someone in the commission of the ADW,
  • personally used a firearm in the commission of the ADW, or
  • committed assault with a deadly weapon against a peace officer.  Serious Felonies Penal Code 1192.7 c on state website

This means that, if you have a “strike” assault with a deadly weapon conviction on your record and you are subsequently charged with any California felony, you will face twice the normal sentence for that felony.41  shouse law

Unfortunately,  one cannot trust verbatim everything one reads on the internet.   The law is complex and a moving target.  Check with competent counsel.  I checked with Mr. Marcus Musante, Esq and he said knives are always strikes.  I researched and found the citation.

1192.7 c 31 assault with a deadly weapon, [definition – shouselaw]   firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245

People v Delgado   245 a 1 – assault with a deadly weapon — punishes assault committed either by means “likely to produce great bodily injury” (GBI), or by use of “a deadly weapon . . . other than a firearm.” Only the latter version qualifies as a serious felony.  1192.7 c 31

Resources

Serious felonies under California three strikes law are listed in California Penal Code Section 1192.7(c).    Violent felonies under California three strikes law are listed in California Penal Code Section 667.5 c.

Shouse Law on 3 strikes (1994) & Prop 36 (2012)

Wikipedia as 3rd Strike

Amendment of the 3 strikes law – by Richard Couzens

CA Court Website

1170.12 Aggregate and consecutive terms for multiple convictions; Prior conviction as prior felony; Commitment and other enhancements or  punishment.

(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following:

(b) Notwithstanding any other provision of law and for the purposes of this section, a prior serious and/or violent
conviction of a felony shall be defined as:

(1) Any offense defined in subdivision (c) of Section 667.5  as a violent felony or any offense defined in subdivision (c) of
Section 1192.7  as a serious felony in this state.

People v. Leng, 71 Cal.App.4th 1, 12 (1999) [prior juvenile adjudication for PC 245(a)(1) assault was not a strike under the three strikes law where prosecutor failed to establish it was a violent or serious felony] (“Appellant received a second strike sentence based on the trial court’s finding that his prior juvenile adjudication for assault was within Welfare and Institutions Code section 707, subdivision (b), and thus constituted a strike pursuant to section 667, subdivision (d)(3).  However, the prosecution failed to introduce any evidence to establish the serious or violent nature of the underlying adjudication.  Under the same set of circumstances, the court would not have been able to impose the same second strike sentence on an individual who had suffered a prior conviction for assault as an adult, unless the prosecution had proved the serious or violent nature of the prior offense.  Thus, section 667, subdivision (d)(3) treats the personal liberty of similarly situated parties in a disparate manner.”)  Shouse Law

Other Pages in Criminal Law  Section

pdf’s of codes & research with highlights

 

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