California Penal Code Section 245(a)(1) PC: Assault With A Deadly Weapon

1. Definition and Elements of the Crime

The basic charge of assault is defined in California Penal Code Section 240 as an unlawful attempt to inflict bodily injury on another person. An even more serious charge can be filed, however, when an assault involves the use of a deadly weapon or of excessive force that is likely to result in severe bodily injury. This charge is labeled “assault with a deadly weapon” and is covered under California PC Section 245(a)(1).

The following four elements must be proven beyond all reasonable doubt to establish that assault with a deadly weapon has occurred:

  1. The defendant did, in fact, attack the victim by means of a deadly weapon that by its very nature would be likely to inflict injury or by means of application of sufficient force to produce a severe injury.
  2. The defendant committed the above act of his or her own free will.
  3. When the defendant acted, he or she was aware, or should have been aware, that his action was likely to result in the application of deadly force to another person’s body.
  4. At the time the defendant acted, he or she was capable of delivering deadly force to the other person.

It is important to remember that no actual injury need have occurred for the charge of assault with a deadly weapon to be valid. The attempt to injure is all that the crime encompasses. However, a resultant injury can serve as evidence that the victim was indeed assaulted.

Another crucial legal term to be aware of is “deadly weapon.” This can include any object whatsoever that is used as an instrument of assault and is capable of causing serious injury or death. The object can be a “traditional weapon,” such as a knife or a club, but it can also be an ordinary object like a glass bottle, steel-toed boot, pool cue, or automobile.

2. Examples of Assault With a Deadly Weapon

To illustrate what assault with a deadly weapon looks like and further clarify its exact definition, we can benefit from the following two examples:

  1. A man is driving through town when he spots another man, with whom he has a running feud, walking near the street curb. He immediately speeds at the pedestrian with his car, intending to hit him. Although no bodily contact was ever made, and a car is not normally conceived of as a weapon - nonetheless, the charge of assault with a deadly weapon still holds.  If there is sufficient evidence to show the accused intended to kill the man, the filing DA may even file a charge of attempted murder under Penal Code 664/187.
  2. One man in a barroom lunges at another man and punches him forcefully in the face on the heels of a heated argument. Due to his advanced martial arts skills, the man is able to inflict serious injury to the other man’s face with a single blow. In most cases, several successive punches or kicks would be required before it would be assault with a deadly weapon, but in this case, one hard punch qualifies.

3. Related Offenses

Other offenses that are similar or closely related to assault with a deadly weapon include:

  • Simple assault, which is covered under California Penal Code Section 240
  • Battery, which involves actually making contact while having intent to harm and is covered under PC Section 242
  • Domestic battery, which is committed against a spouse or romantic partner, and is addressed in PC 243(e)(1)
  • Domestic Violence, Corporal Injury to a spouse or intimate partner, which requires the victim suffer a physical injury, is codified in PC 273.5
  • Assault with a firearm, which is dealt with under PC 245(a)(2)

4. Legal Defenses

When someone is accused of assault with a deadly weapon, there are several viable defenses that skilled defense attorneys often use, including:

  • The defendant was acting in self defense or in defense of another, being under a reasonable persuasion that bodily injury was about to be inflicted on himself or another person. Excessive force, however, cannot have been used by the defendant, or it will invalidate this defense.
  • The defendant’s act was involuntary, or he was unaware that his actions were putting the plaintiff in danger of physical harm.
  • Though the defendant had ill intent, he or the weapon he used was incapable of actually inflicting any real harm.

5. Possible Penalties

Assault with a deadly weapon is considered a “wobbler,” meaning that it can be filed as either a misdemeanor or a felony. Prosecutors will look at factors such as the following in deciding how to file the charge:

  • The presence or lack of physical contact or injury
  • The severity of any resultant injury
  • The type of weapon the defendant allegedly employed
  • The defendant’s past criminal record

Sentencing for a misdemeanor conviction will often include:

  • Up to a year’s time in the county jail
  • Heavy court fines and victim restitution requirements
  • Confiscation of the weapon used to commit the assault

Stricter sentences occur in the following circumstances:

  • A felony conviction, which can expose an accused to 2, 3 or 4 years state prison, compared to a maximum of only one year in county jail if the accused is convicted of a misdemeanor. A felony ADW (assault with a deadly weapon) conviction will also result in a “strike” on the defendant’s criminal record, in accordance with California’s Three Strikes law, which will lead to enhanced punishments for any future convictions.
  • If the victim was a law enforcement officer, five extra years can be added to the sentence.
  • If a firearm was the deadly weapon used in the assault, the prison term can reach as high as 12 years.

6. Criminal Defense for Assault with a Deadly Weapon

Given the serious consequences of an assault with a deadly weapon conviction, it is imperative to secure the services of an attorney with the experience and passion in defending against such charges. Ann Gottesman has extensive legal expertise necessary to obtain the best possible outcome to every variety of case involving an assault with a deadly weapon charge. Having the right attorney fighting at your side often makes the difference between a felony conviction, and a reduction to a lesser offense, or in some cases, a total dismissal.  The sooner you contact your attorney, the better your chances of success.

If you or a loved one have been accused of committing assault with a deadly weapon in Pasadena, do not hesitate to call Ann Gottesman at 626-710-4021 for immediate attention to your case. You can schedule a free consultation with her at her office located at 740 East Colorado Boulevard, Suite 204, Pasadena, California. Feel free to call for further information on how to best approach and fight your assault with a deadly weapon case, and be assured that Ann Gottesman will fight tirelessly and skillfully on behalf of each one of her clients.