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San Diego Assault with a Deadly Weapon Attorney

Definition

For a person to be convicted of Assault with a Deadly Weapon (California Penal Code 245), all of the following must have occurred.

  • The defendant must have acted in a way that would most likely result in force upon another person.
  • The act was completed with a deadly weapon, OR the act would most likely produce great bodily injury.
  • The defendant completed the action willfully.
  • The defendant, as a reasonable person, knew that the act would most likely harm another person.
  • The defendant had the means to use a deadly weapon or severe force in such a way that it was likely to harm another person.

The application of force refers to any offensive or harmful touching, even if it is slight, which is done in an aggressive way.  Even if the touching did not cause injury or the contact was indirect, it may still be considered assault with a deadly weapon.  It’s important to remember that it is still considered assault even if someone doesn’t succeed in applying force.  

For example: A boy gets into a fight on the playground and throws rocks at another boy.  Even though none of the rocks actually make contact, it may still be considered assault with a deadly weapon if the prosecutor convinces the jury that the stones were potentially a deadly weapon.

Deadly weapon is defined by California law as an object, weapon, or instrument that is used in a way that is likely to cause serious harm.  This includes weapons that you might naturally think of, such as guns and knives, but it also includes other potentially dangerous objects such as a screwdriver, a bottle, a gun that is not loaded, a pencil, a car, or a dog.  Parts of the body, such as hands and feet, can also be considered deadly weapons if used in a way likely to cause great bodily injury.

Great bodily harm is defined as significant physical injury that is greater than minor harm.  This definition is very vague, leaving a lot of room for juries to decide what constitutes great bodily harm.  

Willful action is when something is done with intention and purpose.  The definition does not require that someone intended to break the law, hurt someone, or gain some kind of advantage.   

For example: A couple is having a fight in their car and the woman decides to get out and walk.  The man follows her in the car in a way that leads witnesses to believe he is trying to hit her.  Even though he may argue that he was not intending to hit her with the car, he may still be guilty of assault with a deadly weapon because of how he chose to follow her. 

Awareness that the act may lead to the application of force means that you are aware that your actions are likely to harm another person.  

For example: Two men are having an argument and one man pulls out a gun and shoots at the ground to intimidate the other.  Even though the man with the gun did not intend to hurt the other person, he was aware that his actions may have caused harm.  In this situation, the man with the gun may be charged with assault with a deadly weapon.  

Assault vs. Battery in California

People often use the phrase, “assault and battery,” which might suggest that they are the same thing; however, it is important to understand the difference between the two.  In California, assault (including assault with a deadly weapon) involves an action that might result in physical harm or unwanted contact, while battery involves an actual infliction of force against someone else.  One way to think of the difference between the two is that assault is like attempted battery, while battery is like a completed assault.

 

 OFFENSE COMPONENTS OF OFFENSE  POSSIBLE PENALTIES (Misdemeanor)  POSSIBLE PENALTIES (Felony)  LEGAL DEFENSES
 ASSAULT

 The defendant willfully acted in a way that would likely result in force upon another person.

The defendant had the awareness to understand the action would likely cause harm to another person.

The defendant had the means to apply force.

 Misdemeanor Probation

Up to 6 months in county jail 

A fine of up to $1,000 dollars

Community Service

Completion of Batterer’s Program

 N/A

 Self-defense

Defense of others

Lack of means to inflict force

No intention of using force

Wrongfully accused

BATTERY 

 The defendant willfully used force against another person.

The defendant made physical contact with the other person.

 Misdemeanor probation

A fine of up to $2,000 dollars

Up to 6 months in county jail

Community Service

Completion of Batterer’s Program

 N/A

 Self-defense

Defense of others

Consent

It was an accident

ASSAULT WITH A DEADLY WEAPON

The defendant willfully assaulted another person using a deadly weapon

Or the defendant used another means of force to cause great bodily injury

Misdemeanor probation 

1 year in county jail

A fine of up to $10,000

Restitution to the victim

Community Service

Anger management courses

Confiscation of weapon(s)

Up to 4 years in California state prison

A fine of up to $10,000

Restitution to the victim

A strike on defendant’s record

Confiscation of weapon(s)

Self-defense

Defense of others

Consent

No Intention of using force

Actions did not cause great bodily injury

Penalties

Assault is considered a wobbler in California, meaning that the offense can be charged as either a misdemeanor or a felony depending on the specifics of the case and the defendant’s criminal history.  When a prosecutor is deciding how to charge the case, he or she takes the following into account.

  • The type of weapon used.
  • Whether or not the alleged victim suffered bodily injury.
  • The severity of the injury.
  • Who the alleged victim was (it may be charged as a felony if the victim is a protected person such as a police officer).

If the prosecutor decides it is a misdemeanor case, and the deadly weapon was not a firearm, penalties may include misdemeanor probation, up to one (1) year in jail, and/or a maximum fine of one thousand dollars ($1,000).

If the prosecutor decides it is a felony case, and the deadly weapon was not a firearm, penalties may include felony probation, up to four (4) years in prison, and a fine of up to ten thousand dollars ($10,000).

Assault with a Deadly Weapon – With a Firearm

An assault with a deadly weapon charge carries an additional penalty of a minimum of six (6) months in county jail if the weapon used was a firearm.  If the weapon used was a semi-automatic firearm, it will always be considered a felony and possible prison time increases to three (3), six (6), or nine (9) years.

Assault with a deadly weapon is always charged as a felony when the weapon involved includes machine guns, assault weapons, or .50 BMG rifles.  When one of those weapons is involved, the potential prison time increases to four (4), eight (8), or twelve (12) years.

Assault with a Deadly Weapon – On a Law Enforcement Official or a Firefighter

In California, penalties for assault with a deadly weapon increase if the alleged victim is a police officer or a firefighter who is engaged in his/her duties.  The defendant must have known that the alleged victim was an on-duty police officer or firefighter in order for the harsher penalties to be applied.  When this is the case, assault with a deadly weapon is always considered a felony.  If there was no firearm involved, the penalty is time in state prison of three (3), four (4), or five (5) years.  If there was a firearm involved, the penalty depends on the type of firearm used.

  • Ordinary firearm: four (4), six (6), or eight (8) years
  • Semi-automatic firearm: five (5), seven (7), or nine (9) years
  • Machine gun, assault weapon, or .50 BMG rifle: six (6), nine (9), or twelve (12) years

Assault with a Deadly Weapon – California’s “Three Strikes” Law

If you receive a “strike” on your record and are then charged with any other felony, you will receive twice the regular sentence for that felony.  If you get three “strikes,” you may face 25 years to life in California state prison.  Assault with a deadly weapon counts as a strike under California’s “Three Strikes” Law if one of the following is true.

  1. The defendant caused great bodily injury
  2. The defendant assaulted a police officer or firefighter
  3. The defendant used a firearm while committing the assault

Legal Defenses against Assault with a Deadly Weapon Charges

Assault with a deadly weapon carries harsh penalties in the state of California.  If faced with these charges, count on the legal team at Ross Law Center to provide you with the best legal defense possible.  Common defenses against assault with a deadly weapon include the following.

  1. The defendant did not use a weapon or means of force that would likely cause injury
  2. The defendant acted in self-defense
  3. The defendant did not intend to do harm
  4. The defendant was falsely accused

No Use of Weapon or Means of Force that Could Cause Injury

If you did not use a deadly weapon or force against someone that would likely cause serious injury, you cannot be considered guilty of assault with a deadly weapon.  However, the definitions of these two things involve some gray area.

Self-Defense

A self-defense strategy can be used against an assault with a deadly weapon charge if the defendant believed that they or another person were in immediate danger, they had to use force to protect themselves, and they used the minimum amount of force necessary.

No Intention of Harm

If the defendant did not willfully cause harm or the charges may have been accidental, your attorney at Ross Law Center will help ensure that all of the facts come to the surface and the case is dropped.

Falsely Accused

Strong emotions, such as jealousy, anger, or a desire to get revenge, often lead to someone falsely accusing another person of assault with a deadly weapon.  When this is the case, an experienced attorney will be able to effectively gather evidence to ensure that the defendant is not falsely charged.

Related Offenses

Assault

Simple Assault (PC 240) is the same as assault with a deadly weapon except that there is no requirement that a weapon is involved or that a specific amount of force was used.

Battery/Battery Causing Serious Bodily Injury

Battery (PC 242) is different than assault in that it requires the physical use of force against someone else.  However, you can be guilty of battery even if you did not actually harm someone else, you only needed to have made physical contact in a harmful manner.  If you do cause serious injury, you may be charged with battery causing serious injury (PC 242(d))

Brandishing a Weapon or Firearm

Brandishing a weapon or firearm (PC 417) refers to drawing, displaying, or using a firearm or other dangerous weapon in an offensive manner.  

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Ross Law Center
750 B Street #3300
San Diego, CA 92101
858-805-5772
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Ross Law Center
380 South Melrose Drive #363
Vista, CA 92081
760-484-1525
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