9 Things You May Not Know About “Assault With A Deadly Weapon”

California Penal Code 245(a)(1)

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What is Assault With a Deadly Weapon?

By: Diana Aizman

California Penal Code Section 245(a)(1) – Assault With a Deadly Weapon is the commission of an assault upon another person using a deadly weapon, another instrument, or by means of force that is likely to cause great bodily injury to another.

Examples:
  • Pointing a gun at someone to shoot them
  • Chasing after someone with an axe
  • Swinging a guitar at someone’s head
  • Trying to stab someone with a long, sharp broken piece of glass
  • Driving your car into someone, whether they are also in a car or on foot

How Does the Prosecutor Prove Assault With a Deadly Weapon?

To prove that you are guilty of “Assault With a Deadly Weapon,” the prosecutor has to prove the following facts or elements1:

  • You willfully assaulted another person with or without a deadly weapon2

To be clear, California’s Penal Code Section 245(a)(1), et seq. provides for penalties to anyone who uses a (1) deadly weapon, (2) instrument other than a firearm, (3) or who uses “any means of force likely to produce great bodily injury.”3

Force With A Weapon

You did an act with a deadly weapon other than a firearm; a firearm; a semiautomatic firearm; a machine gun; an assault weapon; a .50 BMG rifle that by its nature would directly and probably result in the application of force to a person;4

Examples:

Other than the traditional deadly weapon, such as a gun, a “deadly weapon” can also be any object when used in a way that is likely to result in serious harm to another person, such as:

  • Any sharp and/or pointy object, such as a pencil, broken bottle, or a high heel shoe
  • Car
  • Dog
  • Any other object that is used in a way that can cause severe harm to another person
Force Without A Weapon

You did an act with a deadly weapon other than a firearm; a firearm; a semiautomatic firearm; a machine gun; an assault weapon; a .50 BMG rifle that by its nature would directly and probably result in the application of force to a person;5

Examples:

Other than the traditional deadly weapon, such as a gun, a “deadly weapon” can also be any object when used in a way that is likely to result in serious harm to another person, such as:

  • Pushing,
  • Hitting,
  • Punching,
  • Kicking
  • Scratching
  • Choking
  • Biting

When you acted, you were aware of facts that would lead a reasonable person to realize that your act by its nature would directly and probably result in the application of force to someone.

When you acted, you had the present ability to apply force likely to produce great bodily injury with a deadly weapon other than a firearm; with a firearm; with a semiautomatic firearm; with a machine gun; with an assault weapon; or with a .50 BMG rifle to a person. 6

Great Bodily Injury

Great bodily injury means significant or substantial physical injury.  It is an injury that is greater than minor or moderate harm.  No one needs to actually have been injured by defendant’s act.  But if someone was injured, this fact can be used, along with all the other evidence, in deciding whether the defendant committed an assault and if so, what kind of assault it was.

Examples:

Some examples of qualifying “great bodily injury” include the following:

  • Any cuts or lacerations that require surgical stitching
  • Broken limbs
  • Broken/crushed/torn teeth

How Can You Fight Assault With a Deadly Weapon Charges?

The most common defenses that can be used to defend you from “Assault With a Deadly Weapon” are as follows:

Self-Defense

If you honestly and reasonably believe that you are going to suffer great bodily injury, or if you honestly and reasonably believe that another person is about to suffer great bodily injury, you are justified in using as much force as is reasonably necessary to repel the force.  In such an instance, self-defense is a valid defense.

Inability To Carry Out That Threat

If when you acted, you had no present ability to carry out the assault, or to apply force likely to produce great bodily injury with a deadly weapon or otherwise, you are not guilty of this offense.

Example:

You threatened to shoot the alleged victim with a gun that you said you have in your pocket, but you in fact did not have a gun.  In this case, you have not committed an assault with a deadly weapon, because you did not have the present ability to carry out the assault.

Lack Of Intent

If you accidentally assaulted someone without intending to do so, your conduct does not qualify as an assault with a deadly weapon.

Example: 

If you swung a bat intending to hit a baseball, but you accidentally hit the person standing behind you, you did not commit an assault with a deadly weapon, because you did not do so willfully.  It was only an accident.

What Are The Penalties, Punishment and Sentencing Guidelines?

If you are convicted of “Assault With a Deadly Weapon” pursuant to California Penal Code Section 245(a)(1), you face the following penalties:

PenaltiesMisdemeanorFelony
FineMax of $1,000Max of $10,000
ProbationSummary probation for 5 yearsFormal Probation
Jail or PrisonMax of 1 year county jailMax of 2-4 years state prison
StrikeNoYes
Assault With A Firearm

Assault with a deadly weapon is a wobbler offense which means it can be charged either as a misdemeanor or a felony.  The decision of whether a prosecutor will charge it as a felony or a misdemeanor rests on the type of weapon or other instrument that you used to commit the assault; whether the alleged victim sustained an injury and severity thereof; and finally, whether the alleged victim was in a category of “protected persons” (i.e. police officer, firefighter, etc.)

If you used a firearm, you face the following penalties:

Misdemeanor Penalties:
  • Summary probation for a maximum of 5 years
  • A sentence of not less than 6 months and not exceeding 1 year
  • A maximum fine of $1,000 or both jail time and the fine
Felony Penalties:

If you used specific firearms (such as a machine gun, semiautomatic weapons, or a .50 BMG rifle), you may face the following penalties:

  • A maximum sentence of up to 4, 8, or 12 years in the state prison
  • A maximum of $10,000 fine
  • A “strike” on your criminal record pursuant to the California “Three Strikes” Law

If you used any other semiautomatic firearms, you may face the following penalties:

  • A maximum of up to 3, 6, or 9 years in the state prison;
  • A maximum of $10,000 fine
  • A “strike” on your criminal record pursuant to the California “Three Strikes” Law
Penalty Enhancements

If you assaulted a person who is considered to be in a “protected category” (i.e. police officer, firefighter, etc.), you may face the following penalties:

  • Regardless of whether you used a firearm or not, if you knew or had reason to know that they were in the category of protected persons, you may face a maximum sentence of 5 years.
  • If you used any of the firearms specified above against a person in the protected category, your sentence may be increased to 4-12 years.

Resources On The Criminal Court Process

Next Steps If You Have Been Charged

If you have been arrested for and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Footnotes

  1. California Penal Code Section 245(a)(1): 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 ($10,000), or by both the fine and imprisonment. []
  2. Someone commits an act willfully when he or she does it willingly or on purpose.  It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.  Willful Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].  California law defines an “assault” under Penal Code Section 240 (link to p. 40) as an unlawful attempt — coupled with a present ability — to commit a violent injury upon another person. []
  3. California Penal Code Section 245(a)(1), et seq.: “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 ($10,000), or by both the fine and imprisonment.”  345(a)(4): Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury 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 ($10,000), or by both the fine and imprisonment. []
  4. The terms application of force and apply force mean to touch in a harmful or offensive manner.  The slightest touching can be enough if it is done in a rude or angry way.  Making contact with another person, including through his or her clothing, is enough.  The touching does not have to cause pain or injury of any kind.  Least Touching.  People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372]].  A “deadly weapon” other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.  Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147 Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]. []
  5. The terms application of force and apply force mean to touch in a harmful or offensive manner.  The slightest touching can be enough if it is done in a rude or angry way.  Making contact with another person, including through his or her clothing, is enough.  The touching does not have to cause pain or injury of any kind.  Least Touching.  People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372]].  A “deadly weapon” other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.  Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147 Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]. []
  6. To Have Present Ability to Inflict Injury, Gun Must Be Loaded Unless Used as Club or Bludgeon.  People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [82 Cal.Rptr.2d 413, 971 P.2d 618]. []

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