What is the legal test for finding a defendant guilty of assault with a deadly weapon and assault with force likely to cause great bodily injury?

California, United States of America


The following excerpt is from The People v. Ulloa, E050308, Super.Ct.No. RIF150576 (Cal. App. 2011):

Here, we agree with defendant that the magistrate did make factual findings that the door was closed and that only the tip of the knife went through the door, and we accept such factual findings as true. Otherwise, we independently review whether the legal conclusion that this was not assault with a deadly weapon and with force likely to cause great bodily injury. As for the section 422 charges, there were no factual findings; thus, we review those charges independently. Within that purview, "a decision of the magistrate dismissing charges, absent findings of fact, is erroneous as a matter of law if the evidentiary record discloses a rational basis for believing the defendant guilty of the charged crime." (People v. Slaughter, supra, 35 Cal.3d at p. 642.)

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A. Assault With a Deadly Weapon and With Force Likely to Cause Great Bodily Injury

An "assault" is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240.) A person violates section 245, subdivision (a)(1) by committing an assault upon the person of another with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. ( 245, subd. (a)(1); People v. Winters (2001) 93 Cal.App.4th 273, 275.)

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