Assault With A Deadly Weapon (Penal Code § 245(a)(1))

Assault, in basic terms, is an attempt to commit a violent injury on another person. Assault with a deadly weapon is an assault (attempt to commit an injury) on another person using some weapon OR by any means of force likely to cause great bodily injury. 

Assault with a deadly weapon does not necessarily require the use of a gun or knife or any other type of object that often comes to mind when thinking of a deadly weapon – extreme force is enough.  It also does not require physical contact with the victim.
 
Assault with a deadly weapon is "wobbler" and can be charged as a misdemeanor or as a felony depending on the severity of the alleged assault and any injuries suffered by the victim. 

If you or someone you care about is facing an assault charge of any kind, the criminal defense attorneys at the Weinrieb Law Firm can help explain the charges and properly defend against them.  We can be reached twenty-four hours a day, seven days a week at (818) 933-6555.

Elements Of Assault With A Deadly Weapon

The prosecution must generally prove the following facts to convict a defendant of assault with a deadly weapon:

  • Defendant committed an assault 
    • Defendant Acted Willfully – The defendant's actions were intentional
    • Defendant Intended To Make Physical Contact With The Victim – The defendant intended to make some contact, no matter how slight, with the victim, the victim's clothes or with an object in the victim's vicinity
    • Defendant Was Aware His Act Would Likely Result In Physical Contact
    • Defendant Had The Ability to Cause Contact
  • Defendant used a deadly weapon or force likely to cause great bodily injury
    • "Deadly Weapon" – an object easily capable of producing great bodily injury or death such as a gun, a knife or even an everyday object like a frying pan or heavy vase 
    • "Means of Force Likely to Cause Great Bodily Injury" – examples include kicking, punching, choking or clawing so long as they are done in a way likely to cause great bodily injury (a slap, for example, would not be likely to cause great bodily injury).
    • "Great Bodily Injury" – a "great bodily injury" must be substantial and can include permanent injuries, open wounds, broken bones or "black and blue" marks

Punishment For Assault With A Deadly Weapon

Assault with a deadly weapon is "wobbler" and can be charged as a misdemeanor or as a felony depending on the severity of the alleged assault.

Misdemeanor assault with a deadly weapon can be punished as follows, but any punishment will depend on the facts of a particular case:

  • Up to 1 year in county jail
  • Up to a $10,000 fine
  • Probation
  • Caltrans or community service
  • Completion of a batterer's class

Felony assault with a deadly weapon can be punished as follows, but any punishment will depend on the facts of a particular case:

  • Two, three or four years in state prison (or up to 12 years in state prison if specific firearms were used under Penal Code sections 245(a)(2) and 245(a)(3))
  • Formal Probation
  • A "strike" under California's Three Strikes Law

Defenses To Assault With A Deadly Weapon

Potential defenses to an assault with a deadly weapon charge will depend on the facts of the case, but may include:

  • Lack of Ability to Cause a Violent Injury – The Defendant did not actually have the "ability" to cause a violent injury
  • Lack of Intent to Cause a Violent Injury – Defendant did not intend to commit a violent injury on the victim  
  • Self Defense
  • Defense of Another Person
  • No Great Bodily Injury 

Contact Us           

If you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at the Weinrieb Law Firm. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, or through the confidential and secure email form on the firm's website at www.VWattorneys.com.

 

 

 

 

 

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