In California, assault with a deadly weapon is charged under penal code 245(a)(1) pc.[1] It is a wobbler that allows the prosecutor to charge you with either a felony or misdemeanor.
A deadly weapon can be virtually any object capable of producing great bodily injury, other than a firearm. Whether an instrument qualifies as a deadly weapon depends on (1) the object’s nature or (2) how the object was used. However, a deadly weapon must be extrinsic from the body. Therefore, your hands or feet cannot qualify as a deadly weapon.[2]
Some common examples of a deadly weapon include:
- Bat
- Knife
- Bottle
- Hammer
- Brass Knuckles
- Attack Dog
- Automobile
What are the Elements of Assault with a Deadly Weapon?
The prosecutor must prove the following elements beyond a reasonable doubt:
- The defendant willfully committed an act with a deadly weapon that would probably result in the application of force to another;
- The defendant was aware of facts that would lead a reasonable person to realize that their act would probably result in the application of force;
- The defendant had the present ability to apply force to another; and
The defendant was not acting in self-defense.[3]
Asserting a Defense to PC 245(a)(1) Charges
Self-Defense
To succeed on a claim of self-defense, you must prove:
- You reasonably believed you were in imminent danger of suffering great bodily harm or being unlawfully touched;
- You reasonably believed that the immediate use of force was necessary;
- Your use of force was reasonable to defend against the danger.[4]
Mistaken Identification
Mistaken identification is not uncommon. You are permitted to introduce evidence in the form of expert testimony about mistaken identification. The factors associated with a witness wrongfully identifying someone are cross-racial identification, poor lighting, and even stress over witnessing an event.
Accident
An act committed on accident[5] cannot be criminal. Accordingly, negligence, carelessness, or the act occurring by misfortune are via defenses.
Constitutional Violation
The police may have obtained evidence against you by a constitutional violation. Indeed, suppose the police unlawfully searched your person, vehicle, or home and discovered evidence. In that case, you may file a motion to suppress. If the orders the suppression of the evidence, the prosecution will unlikely proceed with the case.
What is the Punishment for Assault with a Deadly Weapon?
A felony violation for PC 245(a) is punishable as follows:
- 2, 3, or 4 years in state prison
- A fine up to $10,000
A misdemeanor violation is carries:
- 1 year in the county jail
- A fine up to $1,000.
Other collateral consequences include:
- Adverse effects to someone holding a professional license
- Immigration consequences to non-U.S. citizens
- California law requires a 10-year firearm ban upon a conviction
- Indefinite driver’s license suspension if the deadly weapon was an automobile
Examples of Assault with a Deadly Weapon
- Dan grabbed his ex-girlfriend in a bear hug and pushed her towards the edge of a train platform into the yellow danger zone as the train was approaching.
- Cutting someone’s brake lines to their automobile will amount to using the alleged victim’s car as a deadly weapon.[6]
- Making slashing motions with a butter knife across the victim’s blanket-covered legs will not amount to the use of a deadly weapon because it’s not likely that the act will produce great bodily injury.[7]
Contact Us to Schedule a Free Consultation
If you face penal code 245(a)(1) charges, you must protect yourself with an experienced Orange County criminal lawyer. Contact us to schedule a free, confidential consultation to discuss your defenses and options.
John Rogers is a board-certified criminal law specialist. This rare distinction has only been achieved by a small group of California criminal defense attorneys. He has an unmatched understanding of California’s violent crime laws. He stands ready to intervene at any stage of your case.
Legal Footnotes
[1] Penal Code 245(a)(1) defined – (“Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”)
[2] See People v. Aguilar (1997) 16 Cal.4th 1023.
[3] See CALCRIM No. 875.
[4] See CALCRIM 3470.
[5] See CALCRIM No. 3404.
[6] See People v. Marsh (2019) 37 Cal.App.5th 474.
[7] See In re B.M. (2018) 6 Cal.5th 528, 531.