California’s Assault With A Deadly Weapon Laws

What to Expect at the Bail Hearing

The bail hearing will be your first court hearing if you are under arrest as a suspect in an ADW case. Depending on whether your arrest occurred on a weekday, weekend, or holiday, this hearing could occur within twenty-four hours to forty-eight hours. 

During this hearing, your attorney will decide your bail eligibility and the amount you should pay based on the following factors:

• The circumstances and facts of the alleged ADW offense
• Whether you are a flight risk
• Your criminal record
• Your attorney’s mitigating arguments

Although these facts are vital considerations when determining your bail amount, the judge could set any amount he/she finds ideal in your case. Below are the possible outcomes of the bail hearing:

• The judge will release you on your Own Recognizance (without bail)
• The judge will set the amount you should pay and the conditions you should comply with while you are out on bail
• The judge will deny your bail request, meaning you will await your case trial date while behind bars

If your offense involves assault with a deadly weapon, the court could require you to pay bail of up to $50,000 to receive your pretrial freedom. However, if your ADW offense is a misdemeanor, your bail amount will be lower. 

ADW Offense at a Glance

According to Penal Code (PC) 245(a)(1), you commit an ADW offense when you attack or attempt to attack someone else with a dangerous weapon that is capable of causing severe bodily injury or death. 

Depending on your case’s facts and criminal history, the prosecutor could file this violation as a felony or misdemeanor because it is a wobbler. Below are examples of instances that could attract ADW charges:

• Throwing a machete at another person during a fight
• Attempting to stab another person using a sharp, broken soda bottle
• Telling your Rottweiler to attack another person
• Chase another person with an axe or chainsaw

When the police arrest you as a suspect in an ADW case, they hold you in custody until you post your bail. If the police grant you a chance to call someone, you should contact your attorney or someone who can hire an attorney to help you prepare defenses to challenge the allegations you are up against.

Elements the Prosecutor Will Prove to Secure a Conviction Against You Under PC 245(a)(1)

For the court to convict you for a PC 245(a)(1) violation, the prosecution team must prove the following facts or “elements of the crime” beyond a reasonable doubt:

• You engaged in any act or used force that could have led to someone else sustaining a direct injury
• You committed the act using a dangerous weapon or significant force that could likely cause severe bodily injury to another person
• You did the act knowingly and willfully
• The other individual feared for his/her safety or health because your acts were inherently dangerous
• When you engaged in the act, you had the mental and physical ability to apply the necessary force using the weapon to produce a severe bodily injury
• You were not defending yourself or your property (self-defense)

It is worth noting that the court can convict you for an ADW charge even though the other person (victim) did not sustain an injury. The judge will generally focus on whether your acts or behavior could have resulted in the direct application of bodily force on another person, regardless of how slight.

Below is a brief definition of critical legal terms in the above-mentioned elements of the crime:

Application of Force

Application of force means you touched another person offensively, regardless of how slight. For the sake of PC 245(a)(1), the touching could be indirectly using an object or dangerous weapon.

Deadly Weapon

A deadly weapon is any object or weapon type that is capable of causing severe bodily injury or death, including an axe, knife, or gun. However, it is worth noting that other objects like a pencil, brass knuckles, or a bottle could also qualify as a deadly weapon when used in a certain way.

Great Bodily Injury

According to PC 245(a)(1), a great bodily injury is any severe physical injury, including dog bites, broken bones, cuts, black eyes, or gun wounds.

Willfully

You commit an act willfully when you do it knowingly and on purpose. You would be guilty under PC 245(a)(1) even if you had no intent to hurt anyone or violate a law.

Penalties to Expect at Your Sentencing Hearing Upon a PC 245(a) Violation Conviction

As mentioned in the previous paragraph, you will face felony or misdemeanor charges for an ADW offense. The prosecutor is likely to file misdemeanor ADW charges against you if any of the following facts are true:

• The victim did not sustain injuries, or the injuries were not severe.
• The weapon you used was not inherently lethal. for example, a pencil
• You do not have a criminal background
• Your case has no aggravating circumstances

If the court convicts you of a misdemeanor ADW charge, your sentence could include a fine of up to $1,000, misdemeanor probation, or jail time. However, if your ADW charge qualifies as a felony, your sentence will be harsher, including:

• Two (2), three (3), or four (4) years of jail time
• A fine not exceeding $10,000
• Felony probation

Factors That Could Aggravate the Above Penalties Upon an ADW Charge Conviction

Your penalties for a PC 245(a)(1) charge will be stiffer if certain aggravating circumstances or factors exist in your case. For example, the above penalties will be harsher if the following is true:

The Victim Was a Police Officer

ADW will attract felony charges if the victim of the crime is a firefighter or a police officer. In this situation, a PC 245(a)(1) violation conviction will carry a jail time of three (3), four (4), or five (5) years if the involved weapon is not a gun. However, if the weapon in question is a gun, you will face a jail sentence of four (4), six (6), or eight (8) years. 

If the involved weapon is an assault rifle or machine gun, your jail sentence upon a PC 245(a) violation conviction will be six (6), nine (9), or twelve (12) years.

You Used a Firearm

If the involved weapon were an ordinary gun, like a pistol or revolver, your offense would remain a wobbler, meaning the penalties you would face upon conviction are similar to the ones mentioned above. The only notable difference is that the minimum jail time will be six (6) months in this case.

However, if the involved weapon was a semiautomatic gun, the prosecution team will file your ADW offense as a felony carrying three (3), six (6), or nine (9) years of jail time. On the other hand, if the involved weapon was an assault rifle or machine gun, your sentence upon a PC 245(a)(1) violation conviction will include four (4), eight (8), or twelve (12) years of jail time. 

Other Repercussions of a Conviction Under PC 245(a)(1)

In addition to the above standard legal penalties, a PC 245(a)(1) violation conviction will also carry the following life-changing consequences:

A Strike Under the Three Strikes Law

Your ADW will count as a strike under the three strikes law if any of the following facts are true:

• You used force that is capable of causing a severe injury to the victim, and the victim sustained a severe bodily injury
• You used a lethal weapon, regardless of whether the victim sustained an injury or not

If it is your “third strike,” meaning you have two prior convictions for a violent or serious felony in your record, a felony ADW charge conviction could attract 25 years to life in jail. 

Deportation

The repercussions of an ADW charge conviction become even more serious if you are an alien or non-citizen because it qualifies as a crime involving moral turpitude. That means you could be deported to your home country and marked inadmissible. When you are marked inadmissible, you cannot do the following:

• Re-enter the country
• Apply for adjustment of status
• Apply for a green card

Loss of Your Gun Rights

Unfortunately, a felony ADW charge conviction will make you lose your gun rights. According to PC 29800, any person with a felony conviction on his/her record cannot buy, carry, possess, or receive a firearm. A conviction under VC 29800 can attract a jail time of up to three (3) years and a fine not exceeding $10,000.

Challenges Securing Employment

Since your potential employer will likely consider your criminal record during recruitment, a PC 245(a)(1) charge conviction could make it overwhelming and a hassle to secure a reliable job. That is true, regardless of whether your offense is a misdemeanor or a felony.

Challenges Securing an Apartment

Finding a place to rent could also be a hassle after a PC 245(a)(1) violation conviction because your prospective landlord will also check your criminal record before letting you stay in his/her residence. 

Defenses an Attorney Can Assert to Challenge an ADW Charge at Trial

When backed up with proper arguments, the following legal defenses can work in your favor to convince the jury or judge to drop or reduce your ADW charges:

• You were acting in self-defense.
• You are a victim of mistaken identity
• You are a victim of false allegations
• There was no lethal weapon
• The act was unwillful
• You were involuntarily drunk or under the influence
• You were insane at the time of the offense
• The arresting police officers violated your constitutional rights
• You do not have the physical ability to injure the victim

A seasoned defense attorney can provide convincing arguments and evidence to support these legal defenses for the best possible outcome. Examples of evidence that could work in your favor include the following:

• Emails and text messages
• Surveillance videos
• Eyewitness statements or testimonies

Offenses Related to ADW Offense Under PC 245(a)(1)

The prosecution team could file ADW charges alongside other related offenses because they share similar or related elements of the crime. Examples of these offenses include the following:

Brandishing a Weapon

According to PC 411, it is unlawful to brandish your weapon or firearm. For the sake of this statute, to “brandish” means to exhibit or show your weapon in a suggestive or threatening way. For example, when you grab your pistol and point it at your girlfriend’s mother, the prosecutor could file PC 411 charges against you. 

Unlike an ADW charge, a PC 411 charge is punishable as a misdemeanor. Some of the penalties to expect include:

• Up to one year of jail time
• A fine not exceeding $1,000

To defend you against these allegations, your defense attorney can argue that:

• You did not have a deadly weapon or firearm
• You did not behave in a threatening way
• You were acting in self-defense

Simple Assault

PC 240 defines simple assault as the unlawful attempt to commit a violent injury to someone else, and you have the physical ability to do so. For example, pushing another person during an argument could qualify as simple assault under PC 240. The penalties for a conviction under this statute could include a fine not exceeding $1,000 and up to six months of detention in the county jail.

However, if the victim was an on-duty police officer or firefighter, this sentence could double. The key to securing a favorable outcome is retaining the services of an attorney. Your attorney can apply the following defenses to secure a case dismissal or a reduced sentence:

• You are a victim of mistaken identity
• You did not have the intent to commit the act
• You were defending yourself or a loved one

Assault on a Public Official

When you assault a police officer to prevent him/her from performing his/her duties or in retaliation, you could face misdemeanor or felony penalties under PC 217.1. For the sake of this statute, a “public official” could be any of the following:

• A former or current prosecutor
• A former or current public defender
• A governor 
• County supervisors
• Mayor
• A judge
• The Vice President or President

Examples of acts that could attract charges under this law include the following:

• Threatening to use your pepper spray on a traffic police officer
• Throwing a chair to hit a public defender

The maximum sentence you could face upon a PC 217.1 violation conviction includes the following:

• Up to three (3) of jail time
• A fine amounting to up to $10,000

Simple Battery

According to PC 242, you commit the crime of simple battery when you use violence or force against someone else, even if your conduct does not cause him/her to sustain an injury or pain. Examples of situations that could attract simple battery charges include:

• A woman throws a stone at a boy who just insulted her
• Pushing another man because he just cut in front of you in a line at the food store
• A waiter spitting on his/her supervisor for treating him disrespectfully

Since the crime is punishable as a misdemeanor, your penalties will include up to six (6) months of jail time and a fine not exceeding $2,000. Depending on your unique case facts, the court could also require you to enroll in a counseling session and perform community service. 

Attempted Murder

You commit attempted murder when you intentionally take a direct step to kill another person or fetus, but he/she fails to die. Generally speaking, an attempted murder offense is a felony and will attract half the sentence you would face for a murder charge conviction. 

Like a murder offense, the prosecutor will file attempted murder charges as either first-degree or second-degree, depending on your unique case circumstances. The prosecutor will file first-degree attempted murder charges against you if your acts were willful and premeditated. 

If the court convicts you of a first-degree attempted murder charge under PC 664/187, your sentence will include up to life in jail. However, if you are guilty of a second-degree attempted murder charge, your sentence could include five (5), seven (7), or nine (9) years of jail time.

Expungement Eligibility Upon a PC 245(a)(1) Charge Conviction

Upon a conviction for an ADW offense under PC 245(a)(1), you could qualify for an expungement, which releases you from all disabilities caused by a conviction. Whether you entered a guilty plea at your arraignment or received a guilty verdict at trial, an expungement is a post-conviction relief option you should consider.

According to PC 1203.4, an expungement will set aside your conviction or withdraw your plea of guilty or no contest to re-enter a not-guilty plea. However, not every person qualifies for an expungement. According to this statute, you could qualify to expunge your ADW charge conviction, regardless of whether it is a misdemeanor or a felony, as long as:

• You have completed your misdemeanor or felony probation
• You do not have any pending charges
• You are not on probation or serving a sentence for any offense

Therefore, if you want to petition the court to expunge your ADW charge conviction, you must complete your probation and abide by all the required terms within that period. Alternatively, you can request the court for an early termination of your probation. 

Considering how tough it is to secure reliable employment in the current economy, you should do everything possible to make yourself the best candidate. Aside from improving your odds of securing employment, expungement has several other benefits, including:

• Increases your odds of maintaining or securing a practice license
• It gives you a fresh start from all your criminal past

Once you secure an expungement of your ADW charge conviction, the court will dismiss the case, meaning you can legally say you do not have a criminal record in most cases. Like any other legal process, hiring an attorney is important if you want to file an expungement petition.

Aside from helping you stay informed, your attorney can help prepare for the expungement hearing to increase your odds of securing a favorable outcome. If the court denies your expungement petition, you should wait at least six months to file another petition. 

Alternatively, a reliable and seasoned attorney can help you seek other post-conviction relief options to avoid the detrimental consequences of an ADW charge conviction. Examples of these post-conviction relief options you could consider include:

• The Governor’s Pardon
• The Certificate of Rehabilitation
• Motion for a new trial
• Re-sentencing