Review of Assault with a Deadly Weapon Charges and Defenses
California Penal Code 245(a)(1) PC describes the crime of assault with a deadly weapon as when someone attacks, or attempts to attack, another person with a deadly weapon (other than a firearm), or by a means that is likely to cause great bodily injury.
Assault with a deadly weapon is also commonly known as “ADW” and normally charged when there is an unlawful attempt to injure another individual by using a deadly weapon.
A “deadly weapon” is just about anything that could be used as a weapon that can cause a serious injury, such as knives, bats, bricks, razor blades, and others.
A common example of PC 245(a)(1) assault with a deadly weapon includes a situation where someone makes an attempt to stab another person with a knife while they are fighting.
Assault with a deadly weapon under PC 245(a)(1) is a California “wobbler” that can be charged as either a misdemeanor or felony offense.
In a situation where a firearm was used during the assault, then the penalties for a conviction are more severe.
Penal Code 245(a)(1) defines ADW:
- “Any person who commits an assault on another person with a deadly weapon or instrument, other than a firearm, will be punished by imprisonment in a state prison for two, three, or four years, or a county jail for up to one year, or by a fine up to ($10,000), or both.”
For more detailed information, our Los Angeles criminal defense lawyers are providing a review below.
Is PC 245(a)(1) a Misdemeanor or Felony Offense?
As noted, ADW under PC 245(a)(1) is a “wobbler” where the prosecutor has the discretion to file the case as a misdemeanor or felony crime.
Subsection (a)(1) of Section 245 states that anyone committing an assault on someone else with a deadly weapon or instrument other than a firearm is guilty of a wobbler crime.
If the PC 245(a)(1) case is initially charged as a felony, it could still be reduced to a misdemeanor:
- by plea negotiations with the prosecutor, or
- a Penal Code 17b PC motion to reduce in court.
If convicted of ADW as a misdemeanor, the penalties include up to one year in the county jail and a fine up to $1,000.
If convicted of assault with a deadly weapon as a felony, then the penalties include two, three, or four years in a California state prison and a fine up to $10,000.
ADW is a straight felony crime if the victim was a police officer or firefighter and is punishable by up to five years in prison. If an actual firearm was used, then it's punishable by up to 12 years in prison.
Penal Code 245 (a)(2) Assault with a Firearm
Closely related PC 245(a)(2) assault with a firearm law is used by prosecutors when there is a use of firearms specifically.
A felony conviction for assault with a firearm carries a penalty of two, three, or four years in the state prison and fines.
A misdemeanor conviction for subsection (a)(2) requires a minimum of six months in a county jail, while there is no minimum jail sentence for a PC 245(a)(1) offense.
Penal Code 245(a)(3) PC deals with the use of specific dangerous types of firearms such as machine guns and other assault weapons.
Where the prosecutor proves one of these specific types of more regulated firearms was used in an assault, the PC 245 is a straight felony crime punishable by an increased sentence of four, eight, or twelve years in a California state prison.
Further, if a semi-automatic firearm was used, then it's also a straight felony offense carrying a penalty of three, six, or nine years in the state prison.
Penal Code 245(a)(4) Aggravated Assault Charges
Another closely related Penal Code 245(a)(4) PC is the statute used by prosecutors to charge someone with aggravated assault.
Under subsection (a)(4), the prosecutor has to prove a defendant used sufficient force on the victim that was likely to produce great bodily injury (GBI), which is described as a significant injury.
While this subsection (a)(4) falls under the umbrella PC 245 assault with a deadly weapon statute, the prosecutor is not required to prove the defendant was armed with a weapon.
California Penal Code 245(a)(4) PC is called assault by means likely to produce great bodily injury.
It includes an assault with defendant's bare hands involving a significant level of force and therefore danger to the victim.
PC 245(a)(4) charge is also a wobbler that is punishable by the same penalties as a subsection (a)(1) charge.
What are the Related California Crimes?
- Penal Code 217.1 PC – assault on a public officer,
- Penal Code 240 PC – simple assault,
- Penal Code 242 PC – battery,
- Penal Code 243(b) and (c) – battery on a police officer,
- Penal Code 244 PC - assault with caustic chemicals,
- Penal Code 417 PC – brandishing a weapon,
- Penal Code 664/187 PC – attempted murder.
How Can I Fight Assault with a Deadly Weapon Charges?
If you were charged with California Penal Code 245(a)(1) assault with a deadly weapon, there are several common defenses we can use, such as;
- not a deadly weapon,
- not a willful act,
- false allegation.
One of the most common defenses is to make an argument of self-defense and defense of others.
Whenever a defendant uses force against someone, there is normally an opportunity to raise an issue as to whether they were reasonably reacting to a real or perceived threat of imminent harm to themselves or someone else by the alleged victim.
We might be able to show defendant only used enough force necessary to stop the danger and it was an appropriate level.
Not a deadly weapon
In order to be found guilty under PC 245(a)(1), it has to be proven a defendant committed the assault with a lethal weapon.
Perhaps we could make an argument that while the defendant did commit an assault, it was not done using a deadly weapon.
If we can cast doubt on this issue, we might be able to persuade the District Attorney to reduce the felony charges to a Penal Code 240 misdemeanor simple assault.
Not a willful act
In order to convict a defendant of PC 245(a)(1) ADW, they must prove they acted willfully beyond a reasonable doubt.
We might be able to argue they didn't act with the required intent. Perhaps the alleged assault was an accident with no specific purpose or intent.
If you are under investigation, or already arrested and charged with assault with a deadly weapon under Penal Code Section 245 PC, contact our team of criminal defense lawyers for an initial consultation.
We can review all the details of the case and provide advice on the best steps to improve the chances of getting the charges reduced or dismissed, which includes prefiling intervention to prevent formal charges from being filed before court.
Eisner Gorin LLP has two office locations based in Los Angeles County. Contact our firm at (310) 328-3776.