California Penal Code 245(a)(1) defines assault with a deadly weapon (ADW) as trying to attack or attacking a person with a lethal weapon. This offense is a wobbler with a felony charge punishable with a maximum of 4 years of imprisonment. The offense can also result in other severe consequences with effects that last for a lifetime. 

It is imperative to seek help from an experienced criminal lawyer when you face an assault with a dangerous weapon charge. The California Criminal Lawyer Group in Bakersfield will help you easily handle your charges. We are more than ready to help you secure the best legal services.

Legal Definition of Assault with a Lethal or Deadly Weapon in California 

ADW is prosecuted under California Penal Code 245(a)(1). This law defines assault with a lethal weapon as attacking another person or intending to attack with a lethal weapon by force with the intention or likelihood of causing great bodily injury (GBI) to that person. Under this law, prosecutors should prove these elements beyond moral certainty to secure a guilty verdict for assault with a lethal weapon: 

  • You were involved in an act involving applying force on another individual. 
  • You used a dangerous weapon likely to cause GBI. 
  • The action was willful. 
  • You knew that anyone would know that your actions would directly require the utilization of force on the target person. 
  • You could utilize a dangerous weapon that could cause severe bodily harm.

An alleged victim in an assault with a lethal weapon should not necessarily sustain any injuries for a conviction to suffice. Prosecutors focus on whether the alleged action would require force rather than whether the perpetrator applied the force. 

From this definition, several elements need to be explained for a detailed understanding of ADW under California Penal Code 254(a)(1). This includes:

  • What is the definition of applying force to another person? 
  • What is a lethal weapon in an assault with deadly force? 
  • What does serious injury refer to? 
  • What is a willful act? 

Here are detailed answers to these questions. 

Definition of Applying Force on Another Person 

California laws define applying force as any offensive touching, including the slightest contact. 

When it comes to assault using a dangerous weapon, a charge under California Penal Code 254(a)(1) can suffice even during an indirect touch.

Please note that the alleged offender should not apply force for the conviction to suffice. All that is needed is an action that could have required force toward a target person.                                    

For instance, if you throw a few rocks at someone and one slightly touches the alleged victim, the court can charge you with assault with a dangerous weapon, even if the rock does not touch that victim. You will be charged for ADW even when you missed the alleged victim. 

Definition of Deadly Weapon in ADW Charges 

Under California Penal Code 254(a)(1), a deadly or lethal weapon includes any object that can cause GBI or death. This includes different objects, like knives and firearms.

 A deadly weapon could also be one that could be used to kill or cause serious harm to another person. These weapons include: 

  • A gun used to hit another party.
  • A bottle that is thrown at the alleged victim to attack them.
  • A dog ordered to attack someone.
  • A car used to run over someone.

Definition of Great Bodily Injury 

A GBI is any severe physical injury with a greater risk of extreme pain or death. The GBIs include the following: 

  • Gunshot wounds.
  • Broken bones.
  • Lacerations.
  • Black eyes.
  • Dog bites.

Definition of Willfully 

California laws define "willfully" as the purpose or willingness to commit an action or an omission. It does not require the intention to violate a law or injure someone. 

For instance, suppose John and Mike are arguing, and John throws a ball toward Mike. The ball misses him but bounces off a wall, which hits him. John would be charged with assault using a dangerous weapon since he wanted to hit Mike, although it initially missed him. Therefore, John cannot argue that he did not want to hit Mike because what matters in an assault with deadly weapon charge is that he wanted to throw the ball in Mike's direction. 

Penalties for California ADQ

A violation of California Penal Code 245(a)(1) is a wobbler if the offense does not involve a firearm. Therefore, it is charged as a misdemeanor or felony. A misdemeanor charge for the offense carries the following punishment:

  • At most twelve months in county jail.
  • Misdemeanor or summary probation.
  • A fine of up to $1,000.

A felony charge for this crime carries the following punishment:

  • Formal or felony probation.
  • No more than forty-eight months of imprisonment in the state prison.
  • A monetary court fine not exceeding $10,000.

Terms and Conditions of Summary and Formal Probation for ADW Charges 

The court will impose specific terms and conditions if they decide to place you on probation for ADW charges. These terms and conditions vary based on whether you are on summary or formal probation.

If you are placed on informal probation, the common conditions that the court will impose on you include the following:

  • Pay the fines imposed by the court.
  • Compensate the victim.
  • Pay the victim's court cost.
  • Participate and complete community service.

If you are placed on formal probation, the court will impose the following conditions:

  • Complete counseling sessions.
  • Participate in community services.
  • Pay the victim's court costs.
  • Attend regular meetings with your probation officer.

Please note that violations of these conditions can have your probation revoked and have you complete your jail or prison sentence.

Penalties for ADW or Assault with a Deadly Weapon

ADW penalties vary according to the type of weapon used. If the defendant uses a weapon such as a pistol or a revolver, the charges become wobblers and carry similar charges as defined above.

However, if the weapon used includes a machine gun, a 50 BMG rifle, a semi-automatic firearm, or an assault firearm, this becomes a felony. Penalties can be up to 12 years of imprisonment.

Penalties for ADW on a Peace Officer, Like Firefighter or Police

An assault using a dangerous weapon on law enforcement or a firefighter is a felony. However, for this to suffice, you should reasonably know their status. This crime carries a maximum sentence of 60 months of imprisonment. It can go up to 12 years if you commit this offense with a gun. 

Assault with a Lethal Weapon as a Strike in California 

Assault with a lethal weapon can be a strike under California's 3-strike law under the following circumstances:

  • You were sentenced to a felony.
  • Used force or a lethal weapon that produced severe bodily injury.
  • The victim incurred those injuries.

The felonies that fall under this category include:

  • One that does not involve the use of a lethal weapon, but the force used could likely produce serious bodily injury.
  • A felony that involves the use of a lethal weapon where the victim incurs GBIs.
  • The defendant used a dangerous weapon regardless of whether or not the victim incurred significant bodily injury.  

Consequences of an ADW Conviction on an Immigrant 

A sentence for assault with a lethal weapon in California can affect your immigration status if you are an immigrant since it is a severe felony. Under California law, an aggravated felony includes any violent crime. As such, ADW is a sseverefelony, attracting immigration consequences that include deportation and being denied entry when you leave the country and try to return.

Other Potential Consequences for Assault with a Lethal Weapon 

The court can confiscate the weapon used in your ADW charge if you are found to be the owner of the weapon used in this offense. They usually deem the weapon a nuisance, confiscate and sell it at a public auction, or destroy it.

You can also be prohibited from purchasing, acquiring, or owning a firearm in the future if the weapon used is a gun and you are sentenced for a Felony ADW. California laws provide that anyone sentenced to a felony in a crime of violence should be prohibited from acquiring or possessing a firearm.

Defense Strategies for Assault with a Lethal Weapon in California

There are several defense strategies you can use against your ADW charges. However, these charges vary according to your specific facts and circumstances. Here are the most common legal defenses that you and your attorney will consider:

Your Actions Were a Result of Self-Defense 

You can use self-defense as your legal defense strategy for assault with a lethal weapon if your attorney proves the following in court: 

  • You believed that you were in imminent danger.
  • You believed that the force used under these circumstances could stop the danger.
  • You used enough force in your defense.

Please note that proving these facts can be challenging. Therefore, you must gather evidence to prove it. Some helpful evidence to rely on includes medical expert testimonies, eyewitness accounts, and surveillance videos.

Here is an example of how self-defense can be a legal defense strategy against ADW charges:

Mary and Kelly are walking home at night. A man jumps out of the alley and threatens to attack Mary. However, she grabs a bottle from the alley and throws it at the man, who sustains serious bodily injury.

Suppose this man files ADW charges against Mary; she can use self-defense as a legal defense strategy and make her innocent. Her actions were solely based on the belief that she was in imminent danger, making her actions self-defense. Besides that, she was accompanied by her friend, who was an eyewitness to the circumstances of the event. This makes her a reliable piece of evidence against the accusations.

Lack of Intent 

One of the main elements of the ADW charges is that your actions were willfully intended to inflict serious bodily injuries on the plaintiff. Therefore, if your actions were accidental, they do not qualify as ADW.

Here is an example that will help you understand this legal defense strategy better:

Suppose you are playing baseball with a friend and accidentally hit him while standing behind you. You have not committed an ADW crime since the action was accidental.

The Alleged Weapon Used was Not Deadly 

You can argue that the alleged weapon used in your ADW charges is not deadly. California laws define a lethal weapon as any object or instrument that is inherently dangerous or capable of causing severe bodily injuries. Therefore, you can support your defense by highlighting several aspects that prove that the object used was not deadly. It usually involves hiring a weapon expert who can testify that the object alleged to have been used does not qualify as a dangerous weapon.

This legal defense is suitable for reducing your felony ADW charges to a misdemeanor, which carries a less severe punishment.

False Allegations 

It is uncommon to be falsely accused of committing a crime. However, if the complaint was motivated by revenge, anger, or jealousy, you can argue that the accusations against you are false. Your attorney can help you prove this through critical evidence like witness statements, emails, text messages, and phone records. This will have the court dismiss your charges or offer a favorable plea bargain.

You Could not Carry Out the Threat as Alleged 

Sometimes a plaintiff can allegedly claim that you carried out a, whereas you could not carry out the crime. This will be the inability to use enough force to produce serious bodily injury. If you can prove this, you're innocent of the ADW charges. Let us look at this example to gain a better understanding of this legal defense:

The plaintiff alleges that you threatened to shoot him with a gun that he believes you had hidden in your pocket, whereas you did not have that gun. In such a situation, you are not guilty of committing ADW since you could not carry out the alleged assault.

Expunging an ADW 

You can erase your criminal history after completing your jail term or probation. Expungement means you will have records about your ADW charges removed from your criminal records. This is crucial in finding a job, housing, or a college application.

Please note that you can still have your ADW charges expunged even after violating one of the probation’s terms and conditions. Nevertheless, it is at the judge's discretion to decide whether your case should be expunged based on the nature of your case. An expunction gives you a fresh start. You can confidently say to employers or during an application for college or high school admission that you have never been convicted without lying.

Related Offenses

There are several offenses related to ADW in California. These crimes are considered "related" since they are frequently charged with A PEN 254(a)(1) and share some common elements. The common offenses related to assault with a lethal weapon include the following:

  • California Penal Code 240: Simple assault.
  • California Penal Code 245(a)(2): Assault with a firearm.
  • California Penal Code 417: Brandishing a weapon.
  • California Penal Code 217.1: Assault on a public officer.
  • California Penal Code 399: Failure to control a dangerous animal.
  • California Penal Code 244: Assault with a caustic chemical.

Below is a detailed look at these related offenses:

California Penal Code 240: Simple Assault 

California Penal Code 240 defines assault as an unlawful attempt to cause injury to another person. This includes the slightest touch or touching that occurs indirectly, such as through the plaintiff's clothes.

A simple assault conviction in California is a misdemeanor that attracts:

  • Up to six months of custody in county jail.
  • A maximum fine of $1,000.

California Penal Code 245(a)(2): Assault with a Firearm 

You can be charged with assault with a firearm along with ADW charges if you use a firearm. The firearms include assault weapons, rifles, shotguns, pistols, and machine guns. A violation of this subsection can take different forms, like pointing the firearm at the victim, striking the victim with the gun, or shooting the victim.

Assault with a firearm is a wobbler under California laws. A misdemeanor charge conviction will result in:

  • Six to one year of custody in a county jail.
  • A maximum fine of $10,000.

Felony charges attract the following penalties:

  • 2, 3, or 4 years of imprisonment.
  • A maximum fine of $10,000.

Even though assault with a firearm is a wobbler in California, it can become a straight felony if the offense involves 50 BMG rifles, machine guns, semi-automatic firearms, or assault weapons. In that case, it becomes punishable by:

  • 3, 6, or 9 years of imprisonment for using a semi-automatic firearm.
  • Four, eight, or twelve years for using a 50 BMG rifle, assault weapon, or machine gun.

California Penal Code 417: Brandishing a Firearm or a Weapon 

California Penal Code 417 defines branding a firearm or weapon as drawing a deadly or lethal weapon to fight or threaten another person rather than in self-defense. A conviction for this crime is a misdemeanor punishable by:

  • A maximum of $100,000.
  • No more than twelve months of custody in jail.

California Code 217: Assaulting a Public Officer

California Penal Code 217 defines assaulting a public officer as committing an assault on anyone listed as a "public officer" under California Penal Code 830.1 and 830.5 in retaliation or preventing their official duties. You will be guilty regardless of whether you committed the crime with a dangerous weapon.

A guilty verdict for assault on a public officer is a wobbler. At most, a misdemeanor charge is punishable by twelve months in county jail, while a felony is punishable by a maximum of three years in jail. A misdemeanor charge carries a maximum fine of $1,000, while a felony charge carries a court fine of at most $10,000.

California Code 399: Failing to control a dangerous animal 

Under California Penal Code 399, it is an offense to willfully leave a dangerous animal to roam freely, resulting in another person being killed or suffering severe bodily injury. This offense can be considered ADW if you instruct the animal to attack or know that the animal can attack when asked.

Failure to control a dangerous animal is a wobbler. The charges differ depending on whether the victim suffered a severe bodily injury. If the purported victim dies due to the attack, this offense becomes a felony.

As a misdemeanor, these charges are punishable by a maximum fine of $1,000 and a maximum of six months of custody in county jail. As a felony, these charges are punishable by a maximum of three years of custody in county jail and a maximum fine of $10,000.

California Code 244: Assault with a Caustic Chemical 

California Penal Code 244 defines assault with a caustic chemical as throwing or placing a flammable substance, corrosive acid, or chemical on another person to disfigure or injure that person. The crime is a felony punishable by imprisonment for 2, 3, or 4 years and a fine that doesn't exceed $10,000.

Find an Experienced Assault and Battery Lawyer Near Me 

You should contact a criminal defense attorney immediately if you face accusations of assault with a deadly weapon. A lawyer enables you to start fighting for your rights as soon as possible and maximizes the possibility of dismissing or reducing your case. Hiring one on time improves your chances of charge reduction or dismissal.

If you are looking for a reliable criminal defense attorney in Bakersfield, the California Criminal Lawyer Group attorneys are ready to offer the best legal services you can acquire. We have a track record of protecting our client's rights and taking significant measures to protect their freedom. Call us today at 661-750-8230 to schedule a case evaluation.