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Assault with a Deadly Weapon



One of the more serious types of assault crimes is assault with a deadly weapon, often referred to as an ADW.  California Penal Code section 245(a)(1) describes the crime of assault with a deadly weapon as follows: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars, or by both the fine and imprisonment.”

As we see from the language of the Penal Code, assault with a deadly weapon can be considered a felony in the state of California.  As such, being charged with assault with a deadly weapon can be extremely serious and should be treated as such. If someone is found in violation of Penal Code 245(a)(1) a prison term and even a strike on your record are real possibilities. It is therefore very crucial to find an experienced attorney, such as the Criminal Defense Office of Leah Legal when you have been accused of these charges.

Under California PC 245(a)(1), in order to be found guilty of committing an ADW, there are several elements that must be met by the prosecution:

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Elements of Assault With A Deadly Weapon

  • The person has to have done some act with a deadly weapon that would probably result in applying force against another person, OR
  • The person has to have done some act that would probably result in applying force to another person and the force was likely to cause great bodily injury,
  • The person has to have done this act willfully.
  • When the person did this act, he or she knew certain facts that a reasonable person would think would probably result in the application of force against another.
  • The person had the present ability to use force with a deadly weapon against the other person, or the force would likely bring about great bodily injury.

Deadly Weapon -  When PC Code 245(a)(1) talks about a deadly weapon, it means anything that could be used in a way to bring about death or great bodily injury. Objects or instruments that we know are very deadly by their nature are guns and knives.  But a deadly weapon can also mean any object, instrument or weapon that is used in a way that it is capable of causing death or great bodily injury. This can include a brick, bat, tool, violent pet or even a car or other vehicle! A vehicle by its nature is not meant to be a deadly weapon, but if it is used to intentionally ram into another person and cause him or her great bodily injury or death, it is considered a deadly weapon. For example: Joe was driving down the street when someone cut him off. He became exceedingly angry and as they approached a red light and the car ahead came to a stop, he hit the gas pedal ramming his car into theirs. By using his vehicle as a means to inflict great bodily harm, this constitutes the crime of assault with a deadly weapon.

Great Bodily Injury - Remember though, that an assault with a deadly weapon can be accomplished either by a deadly weapon or by force likely to bring about great bodily injury. So this means that we don’t even need a weapon to accomplish this.  An assault causing great bodily injury by using enough force with one’s bare hands is enough to be considered an assault with a deadly weapon if the great bodily injury or harm is a substantial or significant injury. An example of this would be a professional wrestler who throws someone else to the ground without their consent. This would be considered assault with a deadly weapon because the wrestler is more skillful than an ordinary person, and his wrestling with another is likely to cause great bodily harm.

Willfully - What does it mean for a person to commit an act willfully?  It means that he or she did the act on purpose. What it does not mean, however, is that the person had the intention to break the law or hurt someone else.  There is NO requirement of intent to cause injury. Simply intent to act upon the other person.

Application of Force - What does the Code mean by application of force or applying force against another person?  It means touching in a harmful or offensive manner.  It is enough if the touching is done in a rude or angry way even though the touching is very slight.  The touching can also be indirect by causing an object or another person to touch someone.  And finally, the touching does not have to cause pain or injury of any kind; all that is required is that there was a good chance that the touching could have caused pain or injury.

Penalties for Assault

Assault with a deadly weapon can be charged as either a misdemeanor or a felony depending on the facts of the case and the discretion of the prosecutor. This means that the crime of assault with a deadly weapon is considered a “wobbler”. Penalties will vary from case to case dependent on the specific circumstances. For instance, the penalty for an assault with a deadly weapon charge in a case where a gun was utilized by a previous violent offender may be different, and perhaps more serious, than that of a case in which a first time offender is being charged and the weapon is a knife. The prosecution will also take into consideration who the victim is and how serious the injury was. If the victim was a firefighter who was very severely injured, for example, the penalties will be harsher.

Potential consequences for assault with a deadly weapon when charged as a felony can include formal probation, two, three or four years in state prison, and/or a maximum fine of $10,000.

Potential consequences for assault with a deadly weapon when charged as a misdemeanor can include summary or informal probation, a maximum of one year in county jail, and a maximum of $1.000.

If the assault with a deadly weapon involves a firearm or semiautomatic firearm, the penalties can increase to longer prison terms.

In addition, if an assault with a deadly weapon involved a firearm or caused great bodily harm or was committed against a police officer, the penalties can include it being a strike.  The potential for a strike is very serious and very crucial to take into consideration while deciding which strategies to use during an assault with a deadly weapon case. If someone has a strike and is then later charged with a felony, he or she can face twice the sentence for the subsequent felony.  When someone reaches three strike convictions, he or she faces 25 years to life in state prison.

Defenses for Assault

A successful defense for an ADW case can be tricky but the Criminal Law Office of Leah Leah has been handling cases such as these for many years. Some possible defenses include:

  • There was a lack of a deadly weapon or the force likely to cause great bodily injury
  • You acted in self defense or in defense of someone else
  • You didn’t act willfully or you lackedthe requisite intent to commit the violation
  • This was a false accusation. If this is the case, your attorney must conduct interviews of witnesses who can help bring the truth to light.

Related Offenses

Assault, California PC 240 - The crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  The offense of assault is almost exactly like an assault with a deadly weapon, except that there is no requirement of deadly weapons or force likely to cause great bodily harm.

Battery, California PC 242 - Assault charges often are partnered with battery charges. In contrast with an assault charge, a requirement of the use of force or violence exists for the validity of a battery case. While there is not a necessity for the existence of bodily injury, there must be use of force and successful unlawful touching (harmfully or offensively).

Disturbing The Peace, California PC 415 - Another charge that often accompanies an assault case is disturbing the peace. You may be in violation of PC 415 if you speak in a way that instigates a fight with another person in public, if you get into a fight publicly, or if you cause others to be disturbed as a result of your noise.