Assault with a Deadly Weapon–Penal Code 245(a)(1)

San Diego Criminal Defense Lawyer Explains Assault with a Deadly Weapon Laws in California:

California Penal Code § 245(a)(1) is referred to as Assault with a Deadly Weapon (ADW) or sometimes as aggravated assault.  As explained below, there are two ways to commit this crime.

What is Assault with a Deadly Weapon?

The first way the crime can be charged is when you use a deadly weapon to attack or assault someone.  Per the California Criminal Jury Instructions (CALCRIM), to convict you of Assault with a Deadly Weapon, prosecutors must prove:

  1. You made some act with a deadly weapon which by its nature would directly and probably result in the application of force upon a person.
  2. You did that act willfully;
  3. You were aware that your actions would result in the application of force to someone;
  4. You had the present ability to apply force with a deadly weapon.

Per CALCRIM, the term “deadly weapon” refers to essentially two types of objects, both of which it classifies as weapons:

  1. Any object, instrument or weapon that is inherently deadly or dangerous
  2. Any object, instrument or weapon that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

The first category of weapon is inherently deadly, such as butcher knife.  The objects in the second category are considered weapons when they are used as weapons.  It refers to objects that are not normally used as weapons, such as pencils, letter openers, beer bottles, steel-toed boots, vehicles, etc.  Both categories refer only to inanimate objects—body parts, such as fists or teeth, are not considered weapons.

What is Assault with Force Likely to Produce Great Bodily Injury?

The second way the crime can be charged is when you assault someone with any means of force likely to produce great bodily injury.i Here, you can be convicted even if you had no weapon.  To convict you of ADW using this theory, the prosecutors must prove:

  1. You acted in a way that would directly and probably result in the application of force to a person, and
  2. The force you used was likely to produce great bodily injury;
  3. You did that act willfully;
  4. You were aware that your actions would result in the application of force to someone;
  5. You had the present ability to apply force likely to produce great bodily injury.

This charge is usually brought when you assault someone using your own body, such as your fists, feet, teeth, etc., in order to cause great bodily injury.  “Great bodily injury” means significant or substantial bodily injury—more than minor or moderate harm.  This is a nebulous definition that gives prosecutors substantial leeway in what charges they decide to bring against you.  In some cases, it is unclear what type or how serious of an injury your actions might have caused.  However, the following types of injuries are likely to qualify:

  1. Broken bones
  2. Cuts requiring stitches and/or staples
  3. Missing teeth or body parts
  4. Substantial bruising, black eyes, bleeding, etc.

In order to convict you of ADW here, the prosecutors need not prove that you actually caused someone else to suffer great bodily injury, only that your actions were likely to cause great bodily injury.

How Do I Defend Myself Against Assault with a Deadly Weapon Charges?

The following are a few strategies you may use to defend yourself against charges of Assault with a Deadly Weapon:

Self-Defense or Defense of Others

If you applied reasonable force on someone in self-defense, you have an argument for having the charges against you dismissed.  The judge will instruct the jury that, in order to convict you, the prosecutor must prove that you were not acting in self-defense or defense of someone else.  The typical dispute here is whether or not you acted reasonably when defending yourself.  As the saying goes, “You can’t bring a knife to a fist fight.”

No Force Likely to Produce Great Bodily Injury

Another hotly litigated issue is whether or not your action was likely to produce great bodily injury.  You and your lawyer will obtain as much evidence as possible on the severity of the injury to attempt to minimize it or attack the credibility of any claims by the complainant.  It is not uncommon for a complainant to suddenly think he won the lottery and exaggerate injuries, much like in a personal injury lawsuit after a car crash.  You and your lawyer must be careful to weed out excessive or fraudulent claims on the part of a complainant.

Mistake or Accident

You can only be convicted of a crime if your act was volitional and willful.  For example, intentionally pushing someone and causing injury may be sufficient reason for ADW charges to be brought against you.  However, if you tripped or were pushed into someone else, which caused injury to that person, then your action was accidental and not a basis for criminal charges.

Mistaken Identity

It is not uncommon for ADW charges to arise out of a melee scenario such as a bar fight.  In these situations, it may be difficult for witnesses to distinguish whose arms or feet belong to the person doing the damage.  In this type of circumstance, it is important for you and your lawyer to act quickly to prove your innocence or attack the reliability of the eyewitness identification.

Inability to Apply Force

The prosecutors must prove that you had the present (or immediate) ability to apply force or use the weapon to apply force at the time that you acted.  You and your lawyer should investigate the detailed facts surrounding the incident.  Timing and spacing are very important factors to consider.  How far away from the complainant were you?  How long did the incident last?  Where there any other intervening events at play?

When Does a Prosecutor Bring Assault Charges?

A prosecutor is most likely to bring Assault with a Deadly Weapon charges when the complainant is severely injured or when you used an object widely regarded as a weapon.  For example, a domestic violence dispute involving use of a butcher knife, chasing someone else in your car, a fight involving repeated kicks and/or punches to the complainant, a fight involving multiple people against just one person, etc.

What is the Sentence and Punishment for Assault?

Penal Code 245(a)(1) is a “wobbler”, which means it can be charged either as a felony or a misdemeanor.  If you are convicted of a misdemeanor, you can be imprisoned for a maximum of one year in the county jail.  If you are convicted of a felony, you face imprisonment in the state prison for 2 to 4 years.  Additionally, the felony may be a strike felony, under the California Three Strikes law.  If you are charged with a felony, you must ensure you hire a lawyer who knows what steps to take to try to avoid a strike conviction.

If you actually caused great bodily injury (GBI), the prosecutors will likely charge you with Assault with a Deadly Weapon plus a sentencing enhancementii or actually causing GBI.  The enhancement adds an additional prison term of three years (minimum) on top the sentence for the crime itself.  In addition, the enhancement qualifies the crime as a serious or “violent crime”iii “strike” under California’s Three Strikes Law.  Personally inflicting GBI may also qualify the crime as a “serious crime”iv “strike” under California’s Three Strikes Law.

If you have been arrested for Assault with a Deadly Weapon, contact us right away to help you beat the charges.  Read about what you can do to help us win your case.  Call us at 619-792-1451 or email us right away.

iSee Penal Code 245(a)(4)

iiCalifornia Penal Code 12022.7

iiiPenal Code 667.5(c)(8)

ivSee Penal Code 1192.7(c)(8), (23)