Is Kicking Someone Considered Assault with a Deadly Weapon?

Posted on March 24, 2022

Maybe. California courts have ruled that hands and feet are not considered “deadly weapons” under California’s assault with deadly weapons law, penal code 245(a)(1). However, kicking someone can still be considered assault with a deadly weapon if it is done with force likely to produce great bodily injury.

Under Penal Code 245(a)(1), assault with a deadly weapon (“ADW”) consists of an assault that is committed either with a so-called “deadly weapon,” OR by means of force likely to produce great bodily injury.

The California Supreme Court has interpreted this language to mean that a person is guilty of assault with a deadly weapon if he commits an assault under either of the two circumstances:

1. With a deadly weapon; OR ,
2. By means of force likely to produce great bodily injury.

The two acts lead to the same charge.

People v. Aguilar

In People vs Aguilar, (1997) 16 Cal. 4th 1023, the California Supreme Court looked at whether hands or feet can be a deadly weapon within the meaning of Penal Code section 245. The Supreme Court made two important rulings in this case.

First, the Court stated that hands and feet are not “deadly weapons” under PC 245(a)(1). Deadly weapons, within the context of Penal Code 245, are limited to objects extrinsic to the human body. The Court did leave open the idea that some footwear (e.g., steel-toed boots) could be capable of being a deadly weapon, but bare feet and plain shoes are not weapons.

Second, the Court provided clarity on the language used in PC 245. In describing the commission of an ADW, Penal Code 245 mentions both:

• An assault committed with a deadly weapon; and,
• An assault committed by means of force likely to produce great bodily injury.

The Supreme Court ruled that in PC 245(a)(1) cases, the focus is more on the nature of the force used, and not on trying to differentiate between the two acts. The Court concluded that either of the above acts will lead to a charge of assault with a deadly weapon.

The Court stated:

Every person who commits an assault upon the person of another with a deadly weapon or instrument or by means of force likely to produce great bodily injury is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime.

(emphasis added). This means a kick can lead to an ADW charge, even if a foot is not a deadly weapon. The kick would just have to be made with enough force likely to produce great bodily injury.

Application of Force Likely to Cause Great Bodily Injury

The above Supreme Court case tells us that an important focus in PC 245(a)(1) cases is on the nature of the force used by a defendant. The definition of “application of force” under Penal Code 245(a)(1) is any harmful or offensive touching. A slight touching will fit under this definition if it is done in an offensive manner.

Please note that an ADW charge can occur even if the force, or touching, in a case did not or could not cause an injury. The main point is whether a person took some forceful action that could have caused great bodily harm.

This means that kicking someone could be considered assault with a deadly weapon under Penal Code 245(a)(1) PC even if the kick did not hit, or did not injure, the intended recipient. Again, the kick would just have to be made with enough force likely to cause great bodily injury.

“Great bodily injury” is defined as significant or substantial physical injury. Note that this is a rather vague definition. It includes something greater than minor harm, but a prosecutor will have to use the facts of a case to show that a force was actually great enough to produce “great bodily injury.”