Assault With A Deadly Weapon, California Penal Code Section 245(a)(1), occurs whenever anyone assaults another person with a deadly weapon, or a weapon other than a firearm, or when anyone assaults another person using force likely to produce great bodily injury. Contact an experienced Los Angeles Criminal Defense Attorney in order to defend your assault with a deadly weapon charge.
The crime of assault with a deadly weapon can have two different forms of penalties. The crime is a wobbler, which means that the prosecutor may charge the crime as a Felony or a misdemeanor. If you’re charged with the Misdemeanor form of 245(a)(1), you face up to one year in a county jail, a fine of up to $1,000, or both a fine and imprisonment. If you are charged with the Felony form, this may result in a term of four years in state prison and a fine of up to $10,000 (or a combination of prison and a fine).
What Does California Penal Code §245(a)(1) [Assault With A Deadly Weapon] Prohibit?
In sum, to be guilty of Assault With A Deadly Weapon under CPC §245(a)(1), you must:
- Assault someone with a deadly weapon other than a ﬁrearm; OR,
- Use force likely resulting in great bodily injury; AND,
- Act willfully; AND,
- Have facts that would lead a reasonable person to realize the act would result in using force; AND,
- Have the ability to use force likely to produce great bodily injury or to assault someone; AND,
- Not act in self-defense or defense of someone else.
Defining “Assault With A Deadly Weapon” Under California Penal Code §245(a)(1)
To convict you under CPC §245(a)(1),the prosecutor must prove the following beyond a reasonable doubt:
- Deadly Weapon/Application Of Force: You did something using a deadly weapon (other than a ﬁrearm) that, by its nature, would directly and probably result in applying force to a person; OR,
- Application Of Force/Great Bodily Injury: You did an act that, by its nature, would directly and probably result in application of force likely to produce great bodily injury; AND,
- Willfully: You did the act willfully; AND,
- Aware Of Facts/Result Of The Act: When you acted, you knew facts that would lead a reasonable person to realize the act would directly and probably result in application of force to someone; AND,
- Present Ability: When you acted, you had the present ability to apply force likely to produce great bodily injury or to assault with a deadly weapon other than a ﬁrearm; AND,
- Force Not Used In Defense: You didn’t act in self-defense or in defense of someone else.
Note: Force can be applied “indirectly by causing an object or someone else to touch” another person.
Example: A California boxer, Defendant Dmitri, gets into an argument with Victim Vinnie, a patron at a bar. Dmitri wants to punch Vinnie but he’s concerned that using his fists could hurt his chances in an upcoming prizefight. Dmitri reaches into his gym bag and produces a .22 caliber pistol instead. He shoves the weapon in Vinnie’s face. Vinnie apologizes before running from the bar and flagging down Police Officer. He has Dmitri arrested for violating §245(a)(1). Should Dmitri be convicted of the crime?
Conclusion: Dmitri used a deadly weapon to threaten Vinnie. He knew that producing the weapon and shoving it in Vinnie’s face would be an application of force – and we can assume he intended as much, since he was arguing with Vinnie at the time. Dmitri also acted willfully, since he considered exactly how to assault Vinnie before he did it. That Dmitri had a weapon and pulled it out also shows his “present ability” to assault Vinnie, while the facts don’t suggest that Dmitri was defending himself or someone else. But Dmitri assaulted Vinnie with a pistol, a firearm, which is not a weapon covered by §245(a)(1). Dmitri, therefore, shouldn’t be convicted of Vinnie’s accusation.
Penalties For Assault With A Deadly Weapon Under CPC §245(a)(1)
As noted earlier, CPC §245(a)(1) is a “wobbler” in California. You can be charged with either a Felony or a Misdemeanor violation of the law, depending on factors like: the type of weapon used in the assault; whether you hurt someone in committing the crime; and/or the profession of the person you assaulted.
If you’re charged with the Misdemeanor form of Assault With A Deadly Weapon, you face up to one (1) year in a county jail and/or a fine of up to $1,000 (one-thousand dollars). If charged with the Felony form, you face up to four (4) years in state prison and/or fines of up to $10,000 (ten-thousand dollars). Probation, which permits you to serve at least part of your sentence outside jail or prison, is permissible with both forms of Assault With A Deadly Weapon.
Note that California’s “Three Strikes” law may also apply to a conviction under CPC §245(a)(1). Using a firearm in an Assault With A Deadly Weapon or employing force resulting in great bodily injury triggers application of CPC §1170(h). In the event that you receive a “third strike,” you will be sentenced to at least twenty-five years in a state prison.
Defenses To California Penal Code §245(a)(1) – Assault With A Deadly Weapon
You Didn’t Act Willfully
Example: Defendant Dickie is part of a crew working on the side of the road. Dickie holds a pickaxe. At one point, a member of the crew (“Member”) decides to play a joke on Dickie. He sneaks behind Dickie as Dickie pauses to chat with a different crew member, Victim Vidor. Just as Dickie lifts his axe to clear some brush from the handle, Member pushes Dickie, causing him to fall onto Vidor. Dickie buries the axe in Vidor’s shoulder. Vidor, thinking Dickie attacked him, has the police summoned. They arrest Dickie for violating CPC §245(a)(1). Should Dickie be convicted of the charge?
Conclusion: Violation of CPC §245(a)(1) requires a willing act that results in application of force. Here, while there was clearly application of force using a deadly weapon, resulting in a serious injury to Vidor, Member pushed Dickie, causing Dickie to accidentally strike Vidor. The blow itself wasn’t willful. Dickie, therefore, should be acquitted of the charge.
You Didn’t Use A Deadly Weapon Or Force Likely To Result In Great Bodily Injury
Example: Defendant Donald runs an ice cream store. One day, Donald is serving a loud and obnoxious young patron, Victim Veronica. Veronica insults Donald and his other customers. Donald becomes angry and grabs a handful of ice cream. He throws the dessert at Veronica just as Police Officer walks by, sees the assault, and concludes that slipping on the melted ice cream would result in great bodily injury to Veronica. Police Officer arrests Donald for violating CPC §245(a)(1). Should Donald be convicted?
Conclusion: Donald used force by throwing the ice cream. He had the present ability to do so simply by reaching into a container and taking the ice cream. He knew that what he was doing – responding angrily to Veronica by throwing food – would result in application of force. Donald threw the ice cream willingly and he didn’t do it as an act of defense. However, ice cream is not “inherently deadly,” nor is it “likely to cause death or great bodily injury” [emphasis added] simply by being on the floor. Donald shouldn’t be convicted simply because he didn’t use a deadly weapon or force likely to result in great bodily injury.
You Were Lawfully Defending Yourself Or Another Person (Self-Defense Or Defense Of Another)
Example: Defendant Drake witnesses a man attacking a woman, Victim Vonn, behind a gas station. Drake, who has a hammer, swings it at the attacker and drives him off but accidentally strikes Vonn as he finishes a hammer stroke. Vonn, who is furious and injured, calls the police. The police arrive, see Vonn’s injury, and arrest Drake for violating CPC §245(a)(1). Should Drake be convicted of the crime?
Conclusion: Drake had a legal excuse for assaulting the man who was attacking Vonn behind the gas station, so long as the assault ended when the man ran from the scene, and Drake used no more force than was necessary to protect Vonn. (This is known as “not exceeding the scope of defense of another person.”) That Drake accidentally struck Vonn while doing what was reasonably necessary to protect her, therefore, doesn’t deny him defense of another person as legal excuse. Drake was acting lawfully to protect Vonn when he accidentally struck her. Drake, therefore, shouldn’t be convicted of the charge.
The Accusation Is False
Example: Victim Vern hates the police. He decides he’s going to ruin the career of a City detective, Defendant Davis, for whom he reserves a particularly strong disdain. Vern pays a man to hit Vern with a car. Vern is taken to the City Hospital Emergency Room and while there he does an interview accusing Davis of running him over. City police arrest Davis and charge him with violating §245(a)(1). Should Davis be convicted of the charge?
Conclusion: Vern has alleged an Assault With A Deadly Weapon through the use of a deadly weapon (namely, a car). Every element of the crime is present in this example. The only problem is that Vern lied; Davis didn’t have anything to do with the attack that resulted in Vern’s hospitalization. Vern paid to be attacked by someone else. Davis, therefore, shouldn’t be convicted because the accusation is false.
Note: The crimes below are described as “related” because they’re frequently charged with CPC §245(a)(1) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.
The California Penal Code has several offenses related to Assault With A Deadly Weapon: Simple Assault (CPC §240), Battery Causing Serious Injury (CPC §243(d)), Simple Battery (CPC §242), Brandishing A Weapon Or Firearm (CPC §417), Assault With Caustic Chemicals (CPC §244), Assault On A Public Officer (CPC §217.1), Failing To Control A Dangerous Animal (CPC §399), Throwing Dangerous Object At A Motor Vehicle (California Vehicle Code (CVC) §23110(b)), Assault On Emergency Personnel (CPC §241(c)), Assault On A Police Officer (CPC §§243(b) and (c)), and Resisting An Executive Officer (CPC §69).
What Can I Do If I’m Charged With Assault With A Deadly Weapon?
The State of California treats Assault With A Deadly Weapon as a serious offense. If you’re charged with Assault With A Deadly Weapon, it’s essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.
Remember, a professional criminal defense attorney may be able to:
- Negotiate a lesser charge in a plea bargain;
- Reduce your sentence;
- Or even get charges dismissed completely.
The attorneys at KN Trial Attorneys have an excellent understanding of the local courts and an extensive knowledge of California’s criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested for, or charged with, Assault With A Deadly Weapon, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.