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California’s Assault With A Deadly Weapon Laws

Facing charges of assault with a deadly weapon can lead to the worst possible outcome if you do not retain the right criminal defense attorney.

Are you facing either a misdemeanor or felony counts for California Penal Code 245(a)(1): assault with a deadly weapon and are located in the greater San Diego area, Los Angeles, or Orange County? If that is the case, then finding a San Diego criminal defense lawyer is imperative when trying to keep control of your rights and your freedom.

How Does California law define assault with a deadly weapon?

Under California Penal Code 245(a)(1), assault with a deadly weapon also referred to as AWD, is when an assault is committed towards another person with either a deadly weapon, or another instrument that is not a firearm, or with a force that is likely to result in great bodily injury.

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Closely Related Offenses

The following is a list of statutes that are closely related to assault with a deadly weapon. It’s important to note, these associated crimes can be charged instead of OR in addition to AWD depending on the specifics of each case.

California Penal Code 243(e)(1), domestic battery;

You commit this crime when you willfully and unlawfully inflict force and/or violence on an intimate partner, such as a current or former spouse, girl/boyfriend, cohabitant, fiance(e), the co-parent of your child, or someone with whom you were in a dating relationship with.

California Penal Code 243(d), battery causing serious bodily injury;

Also known as aggravated battery, this occurs when one person willfully and unlawfully touches another person in an offensive or harmful manner and the touching resulted in great bodily injury.

California Penal Code 422, criminal threats;

This law states it is a crime to threaten another person, placing them in a state of sustained fear for their lives/safety or for the lives/safety of their immediate family members.

California Penal Code 273.5, corporal injury on an intimate partner;

Willfully inflicting physical injury on your spouse, cohabitant, or intimate partner, resulting in a traumatic condition is a crime and covered under California’s domestic violence crimes.

California Penal Code 243.4, sexual battery;

This crime is committed when someone intentionally and unlawfully touches the intimate part(s) of another person for the purposes of sexual abuse, arousal, and/or gratification.

California Penal Code 261, rape;

Using force, fraud, threats, or violence to have non-consensual intercourse with another person is a crime.

Who Can Be Charged

For a more extensive understanding of situations that can lead to charges of PC 245(a)(1), assault with a deadly weapon take a look at the examples below. These scenes illustrate who can be charged with AWD.

Some examples of AWD, PC 245(a)(1) are as follows:

  • Hitting another vehicle while road rage driving in an attempt to hurt the other person, or chasing after them with your vehicle while they are on foot, biking, or skating.
  • Swinging a bat or large musical instrument at someone.
  • Chasing after someone with a hatchet, chainsaw, ax, or another hardware tool.
  • Attempting to stab someone with a long, sharp object, like a hunting knife, fire poker, or broken glass beer bottle.

Here are some specific examples in which California assault with a deadly weapon, PC 245(a)(1) may be filed:

  • When a couple is having a very heated fight and in a passionate rage the girlfriend attempts to stab her boyfriend with a kitchen knife.
  • Or when the boyfriend attacks his girlfriend during a verbal fight and punches her in the face or tackles her through a door.
  • Although, in this case, California assault charges and parallel battery charges could be filed as well, under California Penal Codes 240 and 242.
  • Two men get into a fight at a bar. One of the men takes a beer bottle, breaks it, and uses the broken bottle as a weapon to beat the other man up.

It is also very important to note the differences between California assault with a deadly weapon and California battery. California PC 245(a)(1), AWD and PC 245(a)(2), AWD with a firearm, can still be filed even if you did not actually cause injury towards another person by your behavior. In order for California battery charges to be filed against you, you would have had to actually cause harm and injury to the other person.

An associated crime that carries different and harsher consequences is California Penal Code 245(a)(2), assault with a firearm as aforementioned. For this sort of crime, the penalties are more serious. Here are some examples:

  • Pointing a loaded gun at someone to shoot them, even if you do not shoot them, the action is still considered assault with a deadly weapon, in this case, a firearm.
  • Instead of pointing a gun at someone you use it as a blunt object and attack someone with it, hitting them in the head.

What The Prosecution Must Do

If California AWD charges are filed against you, it is the prosecutors' job to prove that you committed an assault on another person both willfully and with intent. More specifically, the prosecutors have to prove whether a misdemeanor or felony charges can be filed if:

  • The victim was actually harmed and the extent of their suffering or severity of their injuries.
  • The type of weapon or instrument that was allegedly used to commit the crime.
  • Who the victim was can be very important because harsher consequences might be filed if the victim was a member of law enforcement or other protective agency. The penalties can vary as well depending on whether the victim was on or off duty.

Legal Defense

There are steps you can take to fight against serious allegations of AWD. One of the first things legal experts recommend is finding a criminal defense attorney who understands all the elements of PC 245(a)(1).

Take a look at the following list of common defenses that have been used to contest accusations of assault with a deadly weapon.

Lack of Intent

Willfully acting with the intent to inflict violence that could result in possible injury is an element of AWD. If you did not willfully commit an assault on another person, then you should not be guilty of it.

Example:

Dinah didn’t like his neighbor, Aaron and would make his feelings known whenever Aaron jogged by. Dinah was working on his truck in the driveway and let his pit bull relax on the porch. When Aaron jogged by, Dinah didn’t notice his pit bull attack the jogger, until Aaron began screaming. Dinah pulled his dog off of Aaron’s bleeding leg and rushed the aggressive dog inside. Aaron screamed he was pressing charges for assault with a deadly animal and went home to call the police.

Dinah did not order his dog to attack his neighbor and did not know the pit bull would react that way. He did not willfully use the dog as a deadly weapon nor did Dinah intend for Aaron to get hurt. Although there are consequences for this incident, Dinah should not face charges for assault with a deadly weapon.

False Accusations

Allegations for violent or potentially violent crimes can lead to a wrongful arrest. It’s not unheard of for law enforcement to make an arrest without having the full volume of evidence. This can happen in cases where someone wants revenge on another person and fabricates allegations to get back at them.

Aggravated assault crimes do not require actual physical injury to even occur, just the attempt. Regardless of whether or not the alleged victim has bruises or other obvious physical signs of violent force inflicted upon them, accusations like AWD or similar offenses can still be made.

Was it self-defense?

Committing an assault with a deadly weapon in order to protect oneself or in the defense of others does not mean you should be guilty of AWD. These three factors play a role in this legal defense:

  • You had a reasonable belief that you or another person were in imminent danger of being hurt or worse,
  • You believed using physical force was needed to prevent/stop the imminent danger, and
  • You only used what you thought was a necessary level of force to defend yourself or another person.

Example:

Sharon got off of work late and was walking to her car in the shopping mall parking lot. A white van slowly drives by and stops just a few parking spots beside her car, blaring the headlights. She gets scared because she didn’t understand why they parked so close to her in an empty parking lot. A man gets out of the passenger side. She screams, grabs two cans of soda from her purse and throws them at him. Each can strike him in the head and she quickly jumps into her car.

Sharon was under a reasonable belief that she was in imminent danger of possibly being assaulted, raped, and/or kidnapped. She felt the level of physical force was appropriate and necessary for her to get to safety.

When facing charges for AWD, the best possible choice you can make is to find the right San Diego criminal defense lawyer. This is because, under PC 245(a)(1), AWD, and PC 245(a)(2), AWD with a firearm, charges can be filed even though you technically did not cause actual injury to anyone by your violent or erratic behavior. So facing these types of charges are very serious, especially when considering the penalties that result from being convicted.

Penalties for assault with a deadly weapon

In California, PC 245(a)(1) assault with a deadly weapon is also called a “wobbler” which means that this crime can be charged as either a misdemeanor or a felony. Each case is dependent upon the specific circumstances of the situation and your actual criminal background history. The following is a list of possible penalties for California assault with a deadly weapon, PC 245(a)(1).

Misdemeanor Counts for AWD:

  • facing “summary probation” for up to 5 years,
  • face up to the 1-year maximum sentence in county jail,
  • pay a maximum fine of up to one thousand($1,000) dollars,
  • OR you could face both jail time and a fine

For misdemeanor penalties under PC 245(a)(2), AWD with a firearm:

  • A misdemeanor assault with a deadly weapon depends on the type of firearm used. If it is a regular firearm, then you might face misdemeanor charges.  However, if you used a machine gun, semiautomatic firearm, or assault weapon, then you will face felony charges.
  • You could face “summary probation” for up to 5 years,
  • face a jail sentence with a minimum of 6 months or for a maximum of 1 year,
  • a fine of one thousand($1,000) dollars,
  • OR you could face both jail time and the fine

Felony Penalties for PC 245(a)(1), AWD, depends upon what the type of weapon or instrument was used, or if you used force resulting in great bodily injury. These penalties are as follows:

  • Felony (formal) probation with a maximum sentence of 2 to 4 years in a California State Penitentiary,
  • As much as ten thousand($10,000) in fines, and
  • a “strike” on your permanent criminal record under the California “Three Strikes” Law if you personally used a weapon or inflicted great bodily injury upon another individual.

Penalties for PC 245(a)(2), AWD with a firearm:

Depending on the specific type of firearm, whether it was a semi-automatic, rifle, machine gun or other types of firearm:

  • you could face 4, 8, or 12 years in state prison (machine guns or assault weapons),
  • or 3, 6, or 9 years in state prison (semiautomatic firearm),
  • Up to ten thousand($10,000) in fines; and
  • Get a “strike” on your criminal record under California’s “Three Strikes” Law.

If it is proven that you knew or had knowledge that the victim was a part of the category of protected officials, the consequences are enhanced. The penalties for committing AWD, with or without a deadly weapon, against someone that is part of the protective services, like, a peace officer or a firefighter are:

  • Possible sentencing of 5 years in state prison, OR
  • If a firearm was used in the assault, you could face increased sentencing of 4 to 12 years in prison.

Penalties for Closely Related Offenses

It is important to mention that the following offenses are sometimes associated with violent crimes and can be charged in addition to AWD PC 245(a)(1).

California Penal Code 243(e)(1), domestic battery;

Misdemeanor;

Fines of up to two thousand dollars, and/or

Up to one year in county jail.

California Penal Code 243(d), battery causing serious bodily injury;

Misdemeanor;

Summary (informal) probation,

Up to one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Formal (felony) probation,

2, 3, or 4 years in county jail, and/or

As much as ten thousand dollars in fines.

California Penal Code 422, criminal threats;

Misdemeanor;

Up to one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Up to four years in state prison,

A maximum fine of ten thousand dollars, and

A strike under California’s Three Strikes Law

California Penal Code 273.5, corporal injury on an intimate partner;

Misdemeanor;

Up to one year in county jail, and/or

Fines of up to six thousand dollars.

Felony;

2, 3, or 4 years in state prison, and/or

Fines of up to six thousand dollars.

California Penal Code 243.4, sexual battery;

Misdemeanor;

Possibly up to 5 years of summary (misdemeanor) probation

Up to six months in jail, and/or

As much as two thousand dollars in fines.

Felony;

Formal (felony) probation,

2, 3, or 4 years in state prison,

As much as ten thousand dollars in fines, and/or

Lifetime registration as a tier three sex offender.

California Penal Code 261, rape;

Felony;

3, 6, or 8 years in state prison,

As much as ten thousand dollars in fines,

Lifetime registration as a tier three sex offender, and

A strike under California’s Three Strikes Law

Finding the right San Diego criminal defense attorney is the smartest move to make when facing any of the aforementioned offenses, including assault with a deadly weapon. They can help you find out what exact charges are being brought and how to go about defending yourself with every avenue of opportunity possible.

A skilled and experienced criminal defense lawyer can look into whether there were any potential police missteps, legal loopholes, or to help clearly define the differences between a misdemeanor and felony under the law in order to prevent the harsher convictions of California’s “Three Strikes” law.

Call Us For Legal Help

If you are facing charges for assault with a deadly weapon and need a San Diego criminal defense attorney, then consider the Law Offices of Anna R. Yum. Based out of San Diego, Attorney Yum can also take cases from Orange County and Los Angeles. As a highly recommended and trusted criminal defense lawyer and one of the top 40 under 40 attorneys by the National Trial Lawyers, you can be sure that every possible avenue will be taken to gain you the best possible results. As a winner of the 2015 Avvo Clients’ Choice award for criminal defense, Attorney Yum provides a legal defense that will surely exceed your expectations.

For any questions about San Diego’s criminal defense lawyer, Anna R. Yum, call us at (619) 233-4433. Call us or contact us online for a free no-obligation legal consultation.

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