Assault with a Deadly Weapon

Assault with a deadly weapon under Penal Code section 245(a)(1) is assault committed by means of a deadly weapon or force likely to inflict great bodily injury.

Elements of Assault with a deadly weapon

For the prosecution to prove you guilty of assault with a deadly weapon, he or she must establish beyond a reasonable doubt that: 1) you committed an act that inherently would cause the application of force upon the person of another; 2) you performed that act with a deadly weapon or by means of force likely to produce great bodily harm; 3) you willfully committed the act; 4) when you committed the act, you knew, as you reasonably should have known, that the act would cause the application of force upon the person of another; and 5) when you committed the act, you had the ability to apply force by means of a deadly weapon or a weapon likely to produce great bodily injury.

  • What is “application of force” under Penal Code section 245(a)(1)?

Just like the “application of force “ in simple assault, “application of force” under assault with a deadly weapon need not involve any sort of injury or that the victim was directly targeted.   All that is required is that you willfully committed an act that by its nature would probably result in force upon the person of another.  For example, if you throw a butcher knife at somebody but miss hitting him or her, you can still be charged with assault with a deadly weapon.  A butcher knife is a deadly weapon and you engaged in an act that you knew or reasonably should have known would result in great bodily injury upon your target.  It matters not that your target dodged the hit and was never injured.

  • What is a deadly weapon?

A deadly weapon is any instrument that by its nature is likely to result in death or great bodily injury.  Obvious examples include knife and guns.  But anything can be deemed a deadly weapon if used in a manner likely to produce great bodily harm.   Some examples of “less obvious” deadly weapons are a butter knife, an unloaded gun, and a car.  If these objects are used in a way that is likely going to result in application of deadly force or force likely to produce harm, they can be deemed a deadly weapon under the code section.   Note that hands and feet or any other human body parts are not inherently deadly weapons.  But an assault by means of one’s hand or feet can be assault with a deadly weapon if the hand or feet is used in a manner likely to produce great bodily harm upon the person of another.

  • What is “great bodily injury?”

Great bodily injury is a vague term and open to discretionary interpretation by judges and prosecutors.  In general, however, it is significant or substantial physical injury, and not just a minor harm.  Let’s assume that you are a boxer and you use your hands to punch somebody.  You may be accused of assault with a deadly weapon.  That is because, given your level of skill as a boxer, you may have used your hands in a manner likely to produce great bodily harm upon the person of your target.

  • What is “willfully” under Penal Code section 245(a)(1)?

If you intended to commit the act, then you acted willfully under Penal Code section 245(a)(1).  Just like the willful element in simple assault, the willful element under 245(a)(1) does not require that you break the law or hurt anyone.  As long as you intended to commit the very act likely to produce great bodily harm, then you have satisfied this element of the code section.  For example, if you pursue somebody with your car in a manner that is likely to result great bodily harm to that person, it matters not that you did not intend to hit them.  As long as you intended to use your vehicle in a manner that you knew or reasonably should have known would likely inflict harm upon your target, then you satisfied the willful element under the code section.

  • What does it mean to be “aware” that the act might lead to the application of force?

As mentioned before, you need not have intended to use force against your target.    You must have intended to use force that you knew or should have known would likely result in great bodily harm.  For example, if the weapon you used was a butter knife and you used it in a manner that was likely to produce death or great bodily harm, it is hard to argue that you did not know or was not aware or could knot have known that your action would inflict deadly force or great harm upon the person of your target.

Penalties for Assault with a Deadly Weapon

Assault with a deadly weapon under code section 245(a)(1) is a wobbler, which means that it can be charged as either a misdemeanor or a felony, depending on the specific facts of the alleged offense and your criminal history.   In deciding whether to charge the alleged offense as a felony or a misdemeanor, the prosecutor considers factors such as the type of instrument used, whether the act resulted in actual injury upon the victim, and the severity of those injuries.  The identify of the victim is also a factor that the prosecutor might assess For example, if the targeted individual was a peace officer or a protected person, then the offense would be charged as a felony and harsher penalties would apply.

For a misdemeanor assault with a deadly weapon, you face summary probation, a maximum of one year in county jail, and a maximum fine of $1,000.  For a felony assault with a deadly weapon, you typically face formal felony probation, a prison term of 2, 3, or 4 years, and/or a maximum fine of $10,000.

  • What are the penalties for assault with a deadly weapon with a firearm?

If the deadly weapon that you allegedly used was a firearm, then harsher penalties apply.  If the firearm was an ordinary firearm, then the offense is a wobbler, meaning it can be charged as a felony or a misdemeanor.  However, you will be subject to a county jail sentence of a minimum six months.   If the alleged weapon used was a semiautomatic, then you are subject to a prison term of 3, 6, or 9 years.   If the weapon was a machine gun or assault weapon, then you will be subject to a prison term of 4, 8, or 12 years. The severity of the penalty that the prosecution will seek against you will depend on the specific facts of the offense and your criminal history.

  • What are the penalties for assault with a deadly weapon with a motor vehicle?

If the deadly weapon that you allegedly used was a motor vehicle, then you can be charged with either a misdemeanor or a felony, depending the specifics of the case and your criminal history.  If you are charged as a felony, then you face a lifetime ban on driving by the court and the Department of Motor Vehicles.  If you are charged with a misdemeanor, the court will take no action upon your ability to drive, but the department of motor vehicles has the discretion to suspend your license or impose other restrictions.

  • What are the penalties for a deadly weapon upon a police officer, a firefighter, or protected party?

If the alleged victim was a peace officer or firefighter, he or she was performing his or her duties at the time of the alleged assault, and you knew that he or she is a peace officer or any other protected person engaging in his or duties, then you face a felony and a prison term of 3, 4, or 5 years.   If an ordinary firearm was alleged to have been used in the commission of the offense, you face a prison term of 4, 6, or 8 years.  If the firearm was a semi-automatic, you face a prison term of 5, 7, or 9 years.  If the firearm was a machine gun or assault weapon, you face a prison term of 6, 9, or 12 years.

Is Assault with a deadly weapon a strike under California’s Three-Strikes Law?

If you are accused of causing “great bodily injury” upon the person of another, if the weapon that you allegedly used in the commission of the assault was a firearm, or if the alleged assault with a deadly weapon was inflicted upon a peace officer, then you can be charged with a felony strike.   A strike doubles your incarceration time on any subsequent felony offense that you commit.

What are the defenses to assault with a deadly weapon?

  • You did not use a deadly weapon

What constitutes a deadly weapon is a matter of interpretation.  A loaded gun or butcher knife are obvious deadly weapons, but an unloaded gun or a butter knife are not.   If you used the latter in a manner that could not have resulted in likely bodily harm, then you cannot be convicted of assault with a deadly weapon.

  • You did not use force likely to produce great bodily injury

What is considered “force likely to produce great bodily injury” is also a matter of interpretation.  For example, if you brandished a knife in a manner that could not have reasonably caused harm upon the person of your victim, then arguably you did not use force likely to produce great bodily injury.

  • You acted in self-defense or defense of others

If the deadly weapon that you allegedly used was used for purpose of deflecting physical harm upon yourself or the person of another, and if the force that you used was reasonably necessary to deflect that harm, then you have a valid defense to assault with a deadly weapon.

  • You lacked the intent

If you did not intend to use the deadly weapon for the purpose of assaulting your victim, then you lacked the required mens rea for the crime.

  • You were false accused

There are a myriad of human motives that lead someone to falsely accuse another.  For that reason, your attorney should carefully examine the background and motives of the alleged victim.

How Negin Yamini can help you

Success Case:  In People v. C.M.,  (Case No. MWV1303483, Rancho Cucamonga) Ms. M, an accomplished registered nurse was falsely accused of assault with a deadly weapon involving a motor vehicle.  Ms. M was a victim of road rage by two racist drivers who targeted her for the color of her skin.  Ms. M herself called 911 because she was terrified of her attackers.  Before the cops arrived, the two attackers ganged up against Ms. M and told the cops a concocted story.  This resulted in Ms. M’s arrest and prosecution for assault with a deadly weapon.

Negin began mounting a defense as soon as Ms. M hired her.  Negin’s office interviewed all potential witnesses and thoroughly researched the background and motives of the alleged victims.  With full knowledge of the facts of the case, Negin relentlessly attempted to get the prosecution to do the right thing and dismiss all charges against Ms. M.  The prosecution refused, and the case proceeded to jury trial.  During trial, Negin subpoenaed the phone record of one of the alleged victims, impeached her with this record, and thus proved that she lied under oath.  After three days of deliberation, the jury came back hung, 11-1 (11 for not guilty, and one for guilt).  The judge dismissed the case against Ms. M with prejudice.

Had it not been for Negin’s zealous advocacy, thorough preparation, and relentlessness, Ms. M would have been the victim of a false conviction resulting from racist motives and extremely sloppy and biased police work.

Negin’s Strategy:  Negin’s success lies in meticulous preparation--one that means not taking anything claimed by the prosecution at face value—and sheer tenacity.  As in the above case, Negin prepares every case of assault with a deadly weapon with the mindset that what transpired is much more nuanced and complex that what the prosecution realizes or is willing to admit.  Negin thoroughly examines the background and motives of the alleged victim, engages in her own thorough fact-finding, and leaves no stone unturned.

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