Assault With A Deadly Weapon

Assault with a deadly weapon is defined under penal code 245 (a)(1) as attacking or attempting to attack someone else using a deadly weapon or with means likely to cause the other person great bodily harm. This crime is considered a wobbler in California, meaning the judge can decide to charge it as a felony or misdemeanor depending on the factors surrounding the case.

Assault with a deadly weapon is mainly considered an aggravated assault or ADW. This crime carries hefty fines and severe penalties, and a conviction for this crime can cause limitations and affect your life. If you are facing charges under PC 245(a)(1), ensure you contact a criminal defense attorney to guide you through the case and help you fight for your justice. At Michele Ferroni Pasadena Criminal Attorney Law Firm in Pasadena, we have helped hundreds of clients facing similar charges attain justice. Contact us today and let us help you too.

Defining Assault with a Deadly Weapon

For you to be convicted under PC 245(a)(1), the prosecutor must beyond reasonable doubt prove that you:

• Assaulted another person using a deadly weapon other than a gun; OR
• Used force that is likely to cause great bodily harm; And
• Acted willfully; AND
• A reasonable person would have known that the act would result in using force; AND
• Had the capability of using force likely to assault someone or cause great bodily harm; AND
• You were not acting in self-defense or defense of another person.

The alleged victim does not have to get injured for you to be convicted for this crime. The prosecutor mainly focuses on whether your acts resulted in applying force.

Let’s look at the legal definition of some of the terms used above.

Application of force

Penal code 245(a)(1 defines the application of force as touching another person in an offensive or harmful manner; even a slight physical contact is considered an application of force if done in an offensive or rude way. An ADW can occur even when the touching is not direct. For instance, someone causes an object to touch the alleged victim. Again, you do not have to succeed in applying force for you to be convicted for this crime. All that is required is that:

• You took actions that,
• Were likely to result in force being applied to another person.

Deadly weapon 

Under this statute, a deadly weapon is defined as any type of object or weapon capable of causing significant bodily injury or death. Common examples of these weapons include knives and guns. However, other objects can also be considered lethal if they cause another person to kill them. For example:

• A BB gun.
• A bottle used to attack another person.
• A dog that attacks people on command.
• A pencil, if used to stab another person.
• An unloaded gun if used to hit another person.
• A car, if used to run a person down.

Willfully

Under PC 245(a)(1), a person acts willfully when they do something on purpose/willingly. Note that the person must not intend to hurt anyone or break the law for them to be convicted under this statute. For instance, Mike and Mesy are playing soccer together when they get into an argument. Messy picks the ball and throws it in the direction where Mike is standing. The ball hits Mike, who files ADW charges against Messy. Messy argues that he is not guilty because his intention was not to hit Mike with the ball. This is not considered a valid defense because his will was not to hit Mike; he willfully threw the ball in his direction.

Great bodily injury

Great bodily injury is defined as a significant physical injury under California law. In other terms, significant bodily injury is considered injury greater than any minor harm. Here are some injuries considered as significant bodily injuries:

• Black eyes.
• Lacerations.
• Dog bites.
• Gunshot wounds.
• Broken bones.

Penalties for Assault With a Deadly Weapon

Assault with a deadly weapon is charged as a wobbler under California law if the weapon used to commit the crime was not a firearm. When a crime is considered a wobbler, the prosecutor can decide to charge it as a felony or a misdemeanor.

If convicted as misdemeanor, the defendant can face:

• One year detention in county jail.
• Summary probation.
• Fines of up to $1,000.

If charged as a felony, you can face:

• Four years imprisonment in state prison.
• Fines of up to $10,000.
• Felony probation.

It is important to note that these penalties are not applicable if the lethal weapon used was a firearm or the crime was against a firefighter or a police officer.

Assault With a Deadly Weapon Using a Firearm

If the crime was committed using an ordinary firearm like a pistol or revolver, the offense is still charged as a wobbler and carries similar penalties as stated above. But in this case, the misdemeanor conviction carries a minimum detention of six months.

A crime committed using the following weapons is considered a straight felony:

• An assault weapon.
• A 50 BMG rifle.
• A semiautomatic firearm.
• A machine gun.

This crime is charged as a felony, and its penalties include imprisonment in state prison for twelve years.

Assault With a Deadly Weapon on a Firefighter or Police Officer

You will be charged with a straight felony of ADW if:

• The person attacked with a deadly weapon was a firefighter or a police officer, and
• A reasonable person should have known this, or the defendant was aware.

ADW with the above factors is punishable by imprisonment in state prison for five years. However, if a firearm was used to commit the crime, the sentence could be raised to 12 years.

ADW With a Motor Vehicle

If the defendant committed the crime in question using a motor vehicle, they could be charged with a felony or a misdemeanor based on the factors surrounding the case and their past criminal convictions (if any). If the defendant is accused of a misdemeanor, the court has no right to take any action against them. Still, the California motor vehicle department has the right to suspend their driving license and impose relevant restrictions. However, if they are charged with a felony, both the motor vehicle department and the court can impose a lifetime ban on driving.

Possible Defenses to Assault with a Deadly Weapon

Using a legal defense to fight your charges can help your charges be dismissed or your penalties reduced. Below are some of the major defenses you can use to fight your assault with a deadly weapon charge:

• No willful act — One of the major elements of this crime is a willful act. You cannot be convicted for assault with a deadly weapon if you did not act willfully. You could have a valid defense if your intent was not to use the weapon to assault the victim. If, for instance, you can prove that it was accidental and you were not trying to achieve anything through your acts, your charges may be dropped.
• You did not use a deadly weapon — For you to be convicted for assault with a deadly weapon, you must have used a deadly weapon to commit the crime. Even if you committed an assault but did not use a deadly weapon, you cannot be charged with ADW. If, for example, you can prove that you committed the assault using slippers or any item that is not considered lethal, your charges may be reduced to a simple assault.
• You did not use force that could result in great bodily harm — Measuring the amount of force used to commit an assault is nearly impossible. But, if, for example, you exposed a knife in a harmless way or in a manner not likely to cause harm to anyone, then you did not use force that could cause significant bodily injury, and you cannot be convicted for ADW.
• You acted in self-defense — This defense can only be applicable if you :

1. Used the lethal weapon to avoid physical harm.
2. Believed you were about to be attacked.
3. Used a reasonable amount of force.
4. Thought the force was necessary to prevent yourself from harm.

• You were falsely accused — Your rival could have made false accusations to make you suffer. If the allegations are false, a skilled defense attorney may be able to help you examine the mental stability and motive of the alleged victim and prove your innocence.

Is Assault with a Deadly Weapon Under the Three-Strikes Law in California?

For you to receive a strike under the “Three strikes law”, it will depend on the following factors:

• If you used a lethal weapon or used force likely to result in great physical injury.
• If the victim sustained serious bodily injuries.
• If you are charged with a misdemeanor or felony charge.

You will not receive a strike under the “Three strikes law” if charged with a misdemeanor. This also applies if you are accused of a felony where you did not use a deadly weapon to commit the crime even though you used great force that was likely to cause significant physical harm. However, this is only applicable if the victim did not sustain substantial bodily injury.

But, you can receive a strike under the Three Strikes law if you are charged with a felony where you did not use a deadly weapon to commit the crime, but you used a significant amount of force that made the victim sustain a severe physical injury. If you used a lethal weapon to commit the crime, you would receive a strike regardless of whether the alleged victim sustained any injuries.

Can an Assault with a Deadly Weapon Conviction be Expunged?

Being erased from a crime means that the defendant is set free from penalties or disabilities that may arise from the conviction.

An ADW conviction can be expunged and as well as your criminal history. However, this is only possible if you:

• Complete your probation period.
• Successfully served your jail term.

At times, your conviction can still be expunged even if you violate a probation rule.

Does an Assault with a Deadly Weapon Conviction Affect My Immigration Status

A conviction under penal code 245 (a) (1) does not affect your immigration status. However, if you are not a U.S citizen charged with an aggravated felony, you risk being deported or marked.

In this case, an assault with a deadly weapon is considered an aggravated felony since it is a violent crime.

Can this Conviction Affect My Gun Rights?

No, if you are charged with a misdemeanor for ADW. However, California law prohibits anyone convicted of a felony from possessing or owning a gun.

Related Offenses

There are various crimes that are charged with assault with a deadly weapon. Some of these crimes include:

(Ca PC 417) Brandishing a Weapon

This statute prohibits:

• Fighting with a lethal weapon.
• Drawing or exhibiting a deadly weapon, a firearm.
• Displaying a lethal weapon in a rude or threatening way.
• Doing the above while not acting in self-defense or defense of others.

Unlike in assault with a deadly weapon, brandishing a weapon does not require you to assault the victim for you to be found guilty.

Penal code 417 is charged as misdemeanor, and the punishments include:

• Fines of up to $1,000 if you committed the crime in a public place.
• Sentencing of up to one year in county jail.

This crime is charged as a misdemeanor even if it took place near school property. However, it can be a wobbler if committed in a daycare facility while open and with kids. If charged with a felony, you can be detained in state prison for three years.

(Ca PC 240) Simple Assault

This statute prohibits committing or attempting to commit a violent injury to another person. Even the slightest touch (including touching another person through clothes) is enough evidence to have you charged for simple assault. Even if the touching was indirect, you could still be convicted under pc 240.

Note that the prosecutor does not have to prove the touching for you to be convicted. You can be found guilty without touching the victim. California law convicts simple assault as a misdemeanor, and you could face the following:

• Maximum fines of $1,000.
• Six months detainment in county jail.
• Both the sentencing and fines.

(Ca PC 217.1) Assault on a Public Officer

There are elements that a prosecutor must prove for you to be convicted for assault on a public officer. They must prove beyond reasonable doubt that you:

• Executed an assault.
• The person you assaulted was a public official or their close relatives.
• You aimed to stop the official from working.

Penal code 217.1 is charged as a wobbler in California, meaning it can be a felony or misdemeanor based on your criminal history and facts surrounding the case.

Misdemeanor penalties include:

• Maximum fines of $1,000.
• Imprisonment in county jail for up to one year.

Felony penalties include:

• Maximum fines of $10,000.
• Imprisonment in state prison for three years.

(Ca PC 243 (d) ) Aggravated Battery With Great Bodily Injury

This statute prohibits striking someone else in a harmful or offensive way, causing serious bodily injury. A prosecutor must prove two major elements for you to be convicted under this statute. They must beyond reasonable doubt prove that you:

• Intentionally touch the alleged victim in a harmful or offensive manner.
• The victim suffered physical injury due to the force or touch.

Penal code 243 (d) is considered a wobbler, meaning the prosecutor can charge it as a misdemeanor or felony.

The penalties for a misdemeanor charge under this statute include:

• Imprisonment in county jail for up to one year.
• Maximum fines of $1,000.

A felony conviction carries the following penalties:

• Imprisonment in state prison for four years.
• Maximum fines of up to $10,000.

As per penal code 12022.7, if you are charged with a felony battery, and the victim sustained severe physical injury, your sentence may be enhanced, and you face six years of imprisonment instead of four.

(Ca PC 242) Simple Battery

This statute prohibits willfully using force against someone else. Note that you willfully commit a crime when you do it on purpose. You can still act willfully even if you did not intend to break the law, gain anything, or hurt another person. Assault with a deadly weapon and battery are related in that an assault becomes battery after completion.

Simple battery is charged as a misdemeanor, and the penalties include:

• Maximum fines of $1,000.
• Imprisonment in county jail for six months, OR
• Both fines and imprisonment.

Even a slight touch can lead to a conviction for battery if it's done in an angry or rude manner. The victim does not have to experience pain from touching.

(Ca Pc 244) Assault with Caustic Chemicals

This statute prohibits throwing or placing or causing another person to throw or place any flammable substance, corrosive acid, vitriol, or caustic chemical maliciously or willfully with the aim to disfigure or injure another person’s body. In this case, a flammable substance is described as any flammable liquid that has a flashpoint of 150 degrees. For instance petroleum products, or gasoline. Assault with caustic chemicals and assault with a deadly weapon are related because caustic chemicals are extremely dangerous and are likely to cause serious bodily harm.

PC 244 is charged as a felony, and the penalties include:

• Maximum fines of $10,000.
• Imprisonment of up to 4 years; OR
• Both fines and imprisonment.

(Ca PC 399) Failing to Control a Dangerous Animal

According to California law, a dangerous animal is any:

• Wild animal.
• A domestic animal that is vicious or s prone to hurting humans.

There are elements that the prosecutor must prove beyond reasonable doubt for you to be convicted under this statute. They must prove that you:

• Were in control or owed an animal considered dangerous.
• You knew, or a reasonable person must have been aware that the animal was dangerous.
• Willfully let the animal run free or failed to use extra care in controlling the animal.
• The animal led to the death of another person or caused them significant bodily injury.
• The victim tried their best ad took necessary precautions to prevent themselves from being hurt by the animal not unless they were below five years or had a disability preventing them from escaping or avoiding the animal.

If charged with failing to control a dangerous animal, you will likely face:

If the victim died

If you failed to control a dangerous animal and it led to someone’s else death, you will be charged with a felony, and the penalties include:

• Three years imprisonment in state prison.
• Maximum fines of $10,000.
• Felony probation.

If the Victim Sustained Severe bodily injury

If you failed to control a dangerous animal that made another person suffer severe bodily injury but did not die, the crime is charged as a wobbler. The prosecutor can charge it as a felony or misdemeanor based on factors surrounding the case and your criminal history.

If charged with a felony for failing to control a dangerous animal, you are likely to face:

• Maximum fines of $10,000.
• Felony probation.
• Three years detainment in state prison.

If convicted with a misdemeanor, you will face:

• Misdemeanor probation.
• Maximum fines of $1,000.
• Six months detainment in county jail.

Find a Pasadena Criminal Defense Attorney Near Me

If you or someone you know has been accused of an assault with a deadly weapon, it is important to contact a criminal defense attorney. An experienced criminal lawyer can help you fight for your charges and have your charges reduced or even dismissed. At Michele Ferroni Pasadena Criminal Attorney Law Firm in Pasadena, we are ready to help you fight for your rights and ensure you get the justice you deserve. Call us today at 626-628-0564 for a free consultation.