Assault with a Deadly Weapon: CA Penal Code 245

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Los Angeles Criminal Defense Attorneys: Assault with a Deadly Weapon

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If you’ve been accused of assault with a deadly weapon in California, you could be subject to extremely serious penalties, including lengthy prison sentences and a criminal conviction on your record. Fortunately, there is help available. The Los Angeles criminal defense lawyers of the Law Offices of David S. Chesley represent criminal defendants across the greater LA area and are committed to resolving each case we take as favorably as possible. We are tough negotiators who know how to get prosecutors to make deals and never hesitate to take a case to trial if it in the interest of justice.

Don’t lose hope. The California criminal defense attorneys at The Law Offices of David S. Chesley have the experience you need to defend yourself against these charges.  Call us at 800-755-5174 or send us an email to schedule your free consultation.

What Is Assault with a Deadly Weapon?

California law defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Note that by law, there needs only be an “attempt.”  You could be charged with assault even if you didn’t touch the other person.

Under California law, assault with a deadly weapon (“ADW”) occurs whenever someone attempts to commit a violent injury upon another person in two scenarios:

1. The assault is committed with a commonly considered deadly weapon, such as a firearm or a knife; or
2. The assault is committed with some instrument and by means of force likely to produce great bodily injury.

The second scenario is important because it allows the prosecution to charge defendants with ADW even if you weren’t using a gun or knife. For example, let’s say someone is in a bar fight and starts brandishing a broken bottle. A broken bottle is not typically considered a deadly weapon, but that person could be charged with ADW under California law if he slashed at another person’s neck with it. It simply needs to be an “instrument” used with “force likely to produce great bodily injury.”

Other less common examples of ADW may include ordering a vicious dog to attack someone, stabbing someone with a screwdriver, or attempting to run someone down with a motor vehicle.  However, it’s important to note that attacking someone with your hands or feet cannot be considered assault with a deadly weapon, as your hands and feet are not considered instruments.

Possible Penalties

It is possible for assault with a deadly weapon to be charged as a misdemeanor or a felony depending upon a variety of factors. The severity i penalties sought by the prosecution will vary according to the following factors:

• The severity of the alleged victim’s injury
• The type of weapon that was used to commit the assaults, with firearms carrying the heaviest penalties
• Whether the alleged victim was a police officer or firefighter

The potential penalties associated with an assault with a deadly weapon charge depend significantly on the specific facts of the incident in question. Here are some of the possible penalties for various scenarios:

1. Assault with a deadly weapon that is not a firearm:
   1. Felony charge: two, three, or four years in state prison and/or a fine of up to $10,0000
   2. Misdemeanor charge: up to one year in county jail
2. Assault with a firearm:
   1. Felony charge: two, three, or four years in state prison and/or a fine of up to $10,0000
   2. Misdemeanor charge: up to one year in county jail but not less than six months
3. Assault with a semiautomatic firearm:
   1. Felony charge only, no misdemeanor charge available
   2. Punishable by imprisonment for three, six, or nine years in state prison
4. Assault with a machine gun:
   1. Felony charge only, no misdemeanor charge available
   2. Punishable by imprisonment for four, eight, or twelve years in state prison
5. An assault upon a peace officer or firefighter:
   1. With a deadly weapon other than a firearm: imprisonment in state prison for three, four, or five years
   2. With a firearm: imprisonment in state prison for four, six, or eight years
   3. With a semiautomatic weapon: imprisonment in state prison for five, seven, or nine years
   4. With a machine gun: imprisonment in state prison for six, nine, or twelve years

As you can see, the penalties increase significantly for semiautomatic weapons and machine guns. It’s also interesting to note that the penalties are even more severe if a police officer or firefighter was involved. For example, there is no misdemeanor charge available if you assaulted a police officer with a weapon other than a firearm.

It’s also important to note that, when charged with assaulting a police officer or firefighter, the statute requires two additional elements: (1) that the defendant knew or should have known the victim was a police officer or firefighter; and (2) that the police officer or firefighter was assaulted when performing his or her duties.

What The Prosecution Has to Prove
It’s one thing to be charged with a crime, but it’s important to remember that the prosecution must prove that you committed the crime you are charged with in order to get a conviction. Every crime has “elements” which the prosecution must prove, beyond a reasonable doubt, in order to convict you. For ADW, the prosecution has to prove the following elements:

1. The defendant acted intentionally or willfully;
2. The defendant committed an act that by its nature would result in the application of force on another person
3. The defendant committed the act with either a deadly weapon or some other instrument with enough force that it was likely to produce serious injury
4. The defendant knew or should have known that the act would directly and probably result in the application of force;
5. And when the defendant acted, he or she had the ability to apply force with a deadly weapon or to produce serious injury.

Note that the prosecution does not have to prove that the defendant actually injured the alleged victim. All the prosecution needs to prove is that you intended to commit serious injury and had the ability to do so. Using our example of the bar fight from above, let’s say a person tried to stab the victim with the broken bottle but missed. This conduct could result in an ADW charge.

Possible Defenses

If you’ve been charged with ADW, it’s important to understand that there are defenses that you can raise to avoid conviction. In many cases, however, it can difficult to tell whether these defenses apply without significant legal training and experience, so anyone who has been accused of assault with a deadly weapon should discuss their case with a criminal defense lawyer in Los Angeles as soon as possible.

Some common defenses that defendants raise in ADW cases include:

• Self-defense. If you assaulted the other person in defense of yourself or someone else, you might be able to avoid conviction. For example, if the bar patron from above was being attacked when he stabbed the other person, he can argue that he committed the act in self-defense.
• No deadly weapon. What constitutes a deadly weapon is more complicated than it appears. What if the gun was unloaded?
• Force insufficient to produce great bodily harm. This is another grey area. How do you determine that the act committed was with enough force to cause serious injury and that was your intent?
• Lack of Intent. If you are able to prove that you did not intend to assault the victim or to cause harm, you may be able to avoid conviction.
• False Accusations – In some cases, people who claim to be victims are simply lying about what took place. This can occur for a variety of reasons, including jealousy, anger, or a desire for revenge. An attorney can often cast doubt on false allegations by pointing out inconsistencies in the accuser’s story or using circumstantial evidence that causes the judge or jury to question the accuser’s narrative.

Again, it’s important to note that the prosecution must prove all the elements of the crime beyond a reasonable doubt in order to convict you. Importantly, even if there are not any defenses available, an attorney may be able to negotiate a favorable plea deal with the prosecutor or have the charges against you reduced. In many cases, we can have ADW charges reduced to simple assault or battery charges, which are much less serious. Contact us today to find out how we can help you.

Call Us Today to Speak with an LA Criminal Defense Lawyer

Being charged with assault with a deadly weapon is a very serious matter that can result in years of jail time. The Law Offices of David S. Chesley offers our clients aggressive, high-quality representation with over 50 years of courtroom experience. We’ll help you understand your rights and give you the best defense possible. If you would like a free consultation with a criminal defense lawyer in LA, call us at 800-755-5174 or email us today!