How California Law Defines Assault with a Deadly Weapon

Under California Penal Code § 245, assault with a deadly weapon (ADW) occurs when someone attacks or attempts to attack another person with the intent to cause great bodily injury through the use of a deadly weapon.

Examples of attacks that could warrant this charge include:

  • Trying to stab someone with a knife
  • Striking someone in the head with a gun
  • Throwing a bottle of alcohol at someone in a fight

Note that this charge applies when someone was injured as well as when someone could have been injured.

You Could Face Other Charges in Addition to ADW

In addition to assault with a deadly weapon charges, you might be charged with other criminal offenses related to ADW. These include:

  • Assault on a public official – under California Penal Code § 217.1, this includes committing an assault, preventing the performance of a public official’s duties, or retaliating against them.
  • Brandishing a firearm or weapon – under California Penal Code § 417, this involves being accused of using a deadly weapon in a fight or exhibiting or drawing a deadly weapon.
  • Failing to control a dangerous animal – under California Penal Code § 399, this involves allowing an animal to roam free, failing to use ordinary care to contain it, resulting in another person suffering serious bodily injury or death due to the dangerous animal.

Prevent Harsh Penalties with an Oakland Assault Attorney

Assault with a deadly weapon is a wobbler crime. This means it can be charged as a misdemeanor or a felony, depending on your case.

A misdemeanor conviction for ADW could result in serving one year in county jail and fines up to $1,000. Felony assault with a deadly weapon charges could result in up to four years in state prison and fines up to $10,000. It also counts as a strike on your record.

If you were charged with assault with a deadly weapon on a peace officer, this is considered a straight felony. Here, you could spend up to twelve years in state prison if the crime was committed with a firearm.

Additional Consequences for an ADW Conviction

In addition to incarceration and fines, there are other penalties you could also face, such as:

  • Completion of community service
  • Parole or probation requirements
  • Trouble finding gainful employment
  • Issues with child custody
  • Citizenship or immigration troubles
  • Completion of court-mandated substance-abuse treatment
  • Completion of court-mandated mental health counseling
  • Suspension or revocation of your professional licenses
  • Completion of court-mandated anger management
  • Loss of federal student aid eligibility
  • Loss of firearm rights
  • Trouble finding safe or affordable housing

Aggravating Factors Can Increase Your Charges

Typical aggravating factors that could push your ADW charges from a misdemeanor to a felony include:

  • Lack of remorse
  • The victim suffering serious bodily injury
  • Your criminal history
  • The crime happening in the presence of a child
  • The victim being a child
  • The use of a firearm

Elements for Assault with a Deadly Weapon Charges

The prosecution must prove assault with a deadly weapon beyond a reasonable doubt. The specific elements that must be met include:

  • Direct application of force
  • The use of a deadly weapon
  • Great bodily injury to a victim
  • The act being willful

The Direct Application of Force

Under California Penal Code § 245(a)(1), the application of force involves any offensive or harmful touching. This includes the slightest physical contact if it is done in an offensive or rude way. For a conviction to occur, the state will need to prove that the application of force would likely have resulted in serious bodily injury.

Use of a Deadly Weapon

For ADW charges to apply, there must have been the use of a “deadly weapon.” Virtually any object could be considered a deadly weapon under the worst circumstances. Common types of weapons considered “deadly weapons” under the California statute include:

  • Unloaded guns
  • BB guns
  • Animals that attack on command
  • Brass knuckles
  • Switchblades
  • Baseball bats
  • Bottles
  • Pencils
  • Vehicles

Great Bodily Injury to a Victim

Under the California statute, great bodily injury includes any substantial physical injury such as dog bites, lacerations, broken bones, gunshot wounds, and black eyes, to name a few.

It is important to remember that a victim does not necessarily have to have suffered any of these great bodily injuries for assault with a deadly weapon charges to apply. If the defendant’s application of force could have caused any of these types of great bodily injuries, the ADW charges may be relevant.

The Act Was Willful

The jury must find that you acted willfully to convict you of assault with a deadly weapon. This means that you acted on purpose, but not necessarily that you intended to cause anyone harm or break the law.

You Have Options for Assault with a Deadly Weapon Charges

A powerful and exhaustive defense is needed to fight ADW charges. Whether it be a pre-trial diversion program or a compelling defense at trial, an Oakland assault with a deadly weapon attorney from Morris Law will relentlessly dismantle the prosecution’s case.

Pre-Trial Diversion Programs May Be Available

It may be appropriate to work out a plea agreement with the state’s prosecutor depending on the details of your case

This may be possible when the victim did not suffer a serious injury, you are a first-time offender, or you are dealing with mental health or substance abuse issues. Pre-trial diversion may be possible under the following:

Here are common defenses used to obtain acquittals for assault with a deadly weapon charges.

The Actions Were Not Willful

If you were not acting with the intent to cause great bodily injury, or you committed an act accidentally that had no intention of causing harm to anyone, your ADW charges should be dismissed.

The Defendant Acted in Lawful Self-Defense

This defense might be possible if you believed you were in imminent danger and used force to avoid bodily harm.

However, for this defense to be successful, you must only exercise the appropriate level of force based on the specific details of your case.

The Object Was Not a Deadly Weapon

If the alleged weapon in question cannot be considered lethal, you should not be convicted of assault with a deadly weapon charges.

Get Help from an Oakland, CA Assault with a Deadly Weapon Lawyer

It may feel like the odds are stacked against you, but you’re not alone. As a skilled trial lawyer with experience handling cases throughout the bay area, Seth Morris has the knowledge and resources needed to fight for a dismissal of your charges.

Schedule your confidential consultation with an experienced Oakland lawyer for gun charges at Morris Law to get started on your defense strategy. Fill out our secured contact form or call our office at 510-330-0814 today.