Assault with a Deadly Weapon
California Penal Code Section P.C. 245(A)(1)
What is Assault with a Deadly Weapon?
In California, Penal Code §245(A)(1) is the law that defines an assault with a deadly weapon. That could mean an assault with a firearm, knife, a metal object(s) like a pipe, or a car, to name just a few. The law includes any instrument that by their nature or use are likely to cause great bodily injury. There have been instances where prosecutors have charged people under this statute for using items such as soda cans or even cacti to assault someone.
Elements of the crime
To convict someone under this statute, prosecutors need to prove that a defendant acted with a deadly weapon in a way that would directly and probably result in harm to another person, knowing that they would likely do so, and that they had the ability to do so. The defendant must have done the act willfully, as in, on purpose. No one actually needs to be injured to be charged under this statute.
Penalties for Assault with a Deadly Weapon
Assault with a deadly weapon in California is considered a “wobbler” crime. A wobbler means that a crime can be charged as either a felony or a misdemeanor depending on the facts and circumstances.
If the prosecution chooses to file as a felony, the punishment includes imprisonment in the state prison for: two, three, or four years. Please note that this is a much more serious penalty than the same term of years to be served in a county jail facility, and the time you actually serve will be much longer than if you are convicted of a crime with a jail sentence rather than a prison sentence. Additionally, if an assault is committed with a semi automatic firearm, punishment can be imprisonment in the state prison for: three, six, or nine years. That would fall under Penal Code Section 245(b), which is essentially like an aggravated version of the crime of Assault with a Deadly Weapon.
On the other hand, If the prosecution chooses to file as a misdemeanor, the punishment includes imprisonment in the county jail for up to 364 days, summary probation, and/or a fine of $10,000.
Additionally, if as a result of the assault, a person is killed or seriously injured, the prosecution may likely file charges for attempted murder, murder, or manslaughter depending on the circumstances and facts. There are also other sentencing enhancements that can be applied to vastly increase the amount of time you may be facing if charged with this crime. For example, if anyone is seriously injured or the alleged victims are especially young or old, you could be facing more time. That’s why it’s very important that you hire an attorney who is very knowledgeable about these crimes and knows how to respond to them.
If the prosecution chooses to file as a felony, the punishment includes imprisonment in the state prison for: two, three, or four years. Please note that this is a much more serious penalty than the same term of years to be served in a county jail facility, and the time you actually serve will be much longer than if you are convicted of a crime with a jail sentence rather than a prison sentence. Additionally, if an assault is committed with a semi automatic firearm, punishment can be imprisonment in the state prison for: three, six, or nine years. That would fall under Penal Code Section 245(b), which is essentially like an aggravated version of the crime of Assault with a Deadly Weapon.
On the other hand, If the prosecution chooses to file as a misdemeanor, the punishment includes imprisonment in the county jail for up to 364 days, summary probation, and/or a fine of $10,000.
Additionally, if as a result of the assault, a person is killed or seriously injured, the prosecution may likely file charges for attempted murder, murder, or manslaughter depending on the circumstances and facts. There are also other sentencing enhancements that can be applied to vastly increase the amount of time you may be facing if charged with this crime. For example, if anyone is seriously injured or the alleged victims are especially young or old, you could be facing more time. That’s why it’s very important that you hire an attorney who is very knowledgeable about these crimes and knows how to respond to them.
Defenses and Strategies
The prosecution bears the burden of proving every element beyond a reasonable doubt. As such, some common defenses to assault with a deadly weapon include but are not limited to:
Lack of intent:
The crime of Assault with a Deadly Weapon requires that you acted intentionally. Driving your car at someone to intentionally injure them would count, but falling asleep at the wheel and accidentally hitting a pedestrian would not. You could probably be charged with something else, though!
Insufficient evidence in the prosecution case in chief:
The prosecution must prove all of the elements of the crime. If there is any aspect of the case that they cannot prove, your attorney may be able to have the charges reduced or even dropped.
No Deadly Weapon was used:
An experienced attorney can argue that either no weapon was used in the assault or that the instrument used was not a deadly weapon.
Self Defense:
Self defense is an affirmative defense. In other words, you are essentially admitting that there was an assault, but that you acted in reasonable self defense. This becomes difficult when you use weapons. If someone punches you, but you escalate the fight by using a knife or a gun, the self defense argument can fail.
Mistaken identity:
One of the elements a prosecutor must prove is the identity of an assailant. If you’re wrongfully accused of assault, you need to hire an attorney to fight your charges right away. A lawyer can be very expensive but when your freedom is on the line you need to make sure no stone is left unturned in your defense.
Lack of intent:
The crime of Assault with a Deadly Weapon requires that you acted intentionally. Driving your car at someone to intentionally injure them would count, but falling asleep at the wheel and accidentally hitting a pedestrian would not. You could probably be charged with something else, though!
Insufficient evidence in the prosecution case in chief:
The prosecution must prove all of the elements of the crime. If there is any aspect of the case that they cannot prove, your attorney may be able to have the charges reduced or even dropped.
No Deadly Weapon was used:
An experienced attorney can argue that either no weapon was used in the assault or that the instrument used was not a deadly weapon.
Self Defense:
Self defense is an affirmative defense. In other words, you are essentially admitting that there was an assault, but that you acted in reasonable self defense. This becomes difficult when you use weapons. If someone punches you, but you escalate the fight by using a knife or a gun, the self defense argument can fail.
Mistaken identity:
One of the elements a prosecutor must prove is the identity of an assailant. If you’re wrongfully accused of assault, you need to hire an attorney to fight your charges right away. A lawyer can be very expensive but when your freedom is on the line you need to make sure no stone is left unturned in your defense.
Conclusion
While we hope that we’ve been able to help provide a brief overview of the law, it’s important to remember that every case is unique, and there is no substitute for the experience that a team of former prosecutors has when it comes to defending against criminal charges. If you’re facing charges of your own or have questions about the legal issues involved in your case, contact the law firm of Gomez, Radford, & Rome today. Our team of skilled attorneys is available 24/7 to provide free consultations and help you understand your legal rights and options. We serve all of Southern California and are based in Los Angeles. We are committed to providing our clients with the best possible defense.