Assaulting someone using a dangerous weapon is a severe charge with very steep penalties. Upon conviction, you could be subject to thousands of dollars in fines, a potential sentence of several years in incarceration, and a strike on your record per the Three Strikes Law. Also, if found guilty of a felony violation, you can lose your right to vote, possess or own a gun, capability to secure job positions and obtain particular kinds of government benefits.

If you are charged with assaulting someone using a lethal weapon, you want to have solid legal representation from a knowledgeable attorney. At Monterey Criminal Attorney, we have years of expertise defending clients accused of assault using a deadly weapon and assisting them in achieving the most favorable outcome. Call us immediately for a complimentary consultation with one of our assault and battery lawyers and receive the legal representation you deserve.

Describing The Criminal Offense of Assault with a Deadly Weapon

Assault with a deadly weapon (ADW) is an offense described under PC 245a1. It happens when a person assaults another using a dangerous weapon or any weapon that is not a gun (the crime of assault with a firearm is described under PC 245a2). It is also considered ADW when a person assaults another using force highly likely to inflict great bodily harm.

According to PC 245a1, the D.A. must demonstrate the following elements constituting the crime for you to be considered to have committed ADW:

  • You did an activity that, given its characteristics, would likely cause the direct use of force upon someone and

  • Did that act using a weapon described as deadly, which is not a gun, or using force highly likely to cause great physical injury and

  • Acted willfully, and

  • When you acted, you had facts that would make a reasonable party realize the action would lead to force being applied and

  • You possessed the present capability to utilize force using a deadly weapon or force highly likely to inflict great physical harm.

According to this law, a weapon is deemed deadly if it is capable of inflicting great bodily harm or death upon someone. This description includes obvious dangerous weapons, such as knives. However, other items can be lethal weapons if utilized in a sense that would kill an individual or inflict substantial harm upon them. Examples include the following:

  • An unloaded firearm (if utilized to hit or club a person).

  • A bottle (when utilized to attack a person).

  • A BB gun.

  • A car (utilized to try to run somebody down).

  • A pencil (when utilized to stab a person).

  • Dogs that attack people on instruction.

Examples of actions that constitute ADW are:

  • Throwing an object at a person during a fight.

  • Attempting to stab a person using a broken glass.

  • Instructing a hound to attack someone.

The ADW law describes “use of force” as offensive, harmful, or rude touching. Even the slightest bodily contact suffices if done offensively or rudely. Note that the use of force could be indirect, such as making someone else or an object touch another individual. Also, remember that you need not succeed in utilizing force against the victim for a conviction to occur. All that matters is that you committed an act that would likely have led to force application against the victim.

Under California statute, great bodily harm refers to a substantial bodily injury. That means something bigger than a slight injury. Examples of these are dog bites, gunshot wounds, broken bones, black eyes, and lacerations.

The D.A. must also prove you committed the action willfully. You perform an act willfully when you do it willingly or purposely. It is unnecessary that you meant to hurt anybody, violate the Penal Code, or gain a benefit.

Remember, the ADW victim need not sustain an injury for you to be considered to have committed an offense. What matters is whether your action could have led to the use of force and not whether force was indeed applied.

Consider this example: While at a bar, Vinnie, a boxer, argues with Josh, the bar patron. He moves to punch him and is concerned that utilizing his fists may ruin his odds in an approaching prize fight. He reaches into his backpack and draws a knife instead, which he shoves into Josh's face. Josh apologizes as he runs out and flags down law enforcement. He has Vinnie arrested for breaking PC 2451a.

In this case, Vinnie threatened Josh with a dangerous weapon. He was aware that drawing the knife and shoving it in Josh's face would amount to utilization of force, and the prosecution can presume he meant as much because he was in an argument with Josh at that time. Vinnie also willfully acted because he considered precisely how to assault Josh before doing so.

The fact that Vinnie possessed a weapon and drew it out indicates his present capability to assault Josh, and the circumstances surrounding the incident do not suggest that Vinnie was acting in self-defense or defense of another person. In this case, the judge can convict Vinnie for violating PC 245a1, ADW law.

Penalties Under PC 245a1

The penalties for 245a1 violations vary. The D.A. can file misdemeanor or felony charges based on your record of criminal activity and the case facts, like the weapon in question, whether you injured someone while committing the offense, and the alleged victim’s profession. This makes ADW a wobbler violation under California statute.

If you are convicted of a misdemeanor PC 245a1 violation, you will serve not more than 12 months in jail, a maximum fine of one thousand U.S. dollars, or both imprisonment and a fine. The felony version will lead to a maximum prison sentence of four years, a maximum of ten thousand U.S. dollars in court fines, or both a fine and time in prison.

The judge can impose a probation sentence for both types of ADW. This sentence lets you serve part of your incarceration outside prison or jail. Summary probation applies to a misdemeanor conviction, while a formal conviction applies to a felony conviction.

Note that the consequences would be different if your ADW incident involved a gun or if you did it against a firefighter or police officer.

If you committed ADW using an ordinary gun like a pistol or revolver, you will still face wobbler charges. The consequences will be similar to those for PC 245a1. The only difference is that you will be subject to a six-month jail term if found criminally liable for a misdemeanor.

A conviction of ADW is always considered a felony when perpetrated with a machine gun, semi-automatic firearm, 0.50 BMG rifle, or assault weapon. Here, the consequences of a conviction would include time in prison for a maximum of twelve years.

ADW is also always prosecuted as a felony violation if the supposed victim was a firefighter or peace officer and you were aware of this or should have reasonably been aware. In this case, a conviction will subject you to five years or less prison time. If you committed the crime using a gun, the prison term could increase to up to twelve years.

Implications of ADW Conviction on Firearm Rights

Being convicted of assault using a lethal weapon might negatively affect your firearm rights. California law states that any convicted felon cannot possess or own a firearm. Remember that ADW can be prosecuted as a felony or misdemeanor. If found criminally liable for a felony charge, you will be stripped of your firearm rights.

Immigration Consequences

Being convicted of ADW might have adverse immigration repercussions. The law provides that an immigrant who perpetrates a crime of moral turpitude or aggravated felony can face deportation (removal) or be labeled as inadmissible. According to the law, a felony assault using a dangerous weapon is deemed a violent crime, and thus, it is classified as an aggravated felony. That means you will face negative consequences if found criminally liable for a felony ADW, and you are an immigrant.

Implications Under Three Strikes’ Law

The state's Three Strikes law might also apply to convictions under PC 245a1, based on whether the conviction was for a felony or misdemeanor, you utilized a lethal weapon or force highly likely to cause great bodily harm, and the alleged victim suffered great bodily harm.

Using a gun in an ADW or using force likely to result in significant bodily harm triggers the application of the Three Strikes Law. Should you receive a third strike, the court judge will sentence you to a minimum of 25 years in prison.

Record Expungement

You can have the judge expunge your criminal history if found criminally liable for ADW. You can obtain a criminal record expungement provided you complete a jail sentence or probation, whichever is applicable. Should you violate any probation condition, a judge might still agree to expunge your criminal history. PC 1203.4 states that an expungement frees you from almost all disabilities and penalties a conviction triggers.

Defending Against ADW Allegations

Through comprehensive investigation, litigation, and negotiation, an experienced criminal defense lawyer can have your ADW charges dismissed by arguing one of all of these defenses:

You Acted In Self-Defense or Were Defending Another

To successfully argue the self-defense argument for PC 245a1 charges, your lawyer must prove to the prosecution that you reasonably believed you or someone faced imminent danger, reasonably believed it was mandatory to use force to prevent the danger you or someone faced, and used the acceptable amount of force to defend yourself or the other person. Helpful evidence your lawyer can depend on includes eyewitness accounts, testimony from a medical expert, and surveillance video.

The Weapon You Used Was Not Deadly.

You may only be convicted of violating Section 245a1 of the Penal Code if you assaulted someone using a deadly weapon. That means it will be a legitimate defense for your attorney to argue that you may have assaulted the victim, but you never used a dangerous weapon to do so.

Your lawyer can support their argument by highlighting various facts to prove the item you used was not lethal. They may also retain a weapons-related expert to ascertain that the item you utilized does not fall under deadly weapons. If the lawyer can successfully prove that the glass, pipe, brick, or any other item you used does fall under the category of deadly, the district attorney might agree to lower the felony ADW charges to only simple assault.

Your Act Was Not Willful

The most compelling legal defense your lawyer can rely on in assault with a deadly weapon charges is to prove you did not have any criminal intention. This would be an effective defense because intention is not a tangible thing that the prosecution can show to the jury, and your attorney can use this to their advantage when casting reasonable doubt on the prosecutor's mind.

For example, perhaps you acted accidentally and with no specific reason. Or maybe your lawyer can subpoena a medical guru to testify that you were experiencing a medical episode at the time of the crime, for example, a seizure, where it was difficult to control your movements.

You Were Falsely Accused

If you might have been wrongly accused of committing assault using a lethal weapon, an experienced attorney can compile all the evidence to cast doubt on the victim's credibility. This generally includes eyewitness accounts, emails, text messages, and voicemails. Once your lawyer shows the prosecution that the alleged victim has the motivation to lie, like revenge, jealousy, or anger, the whole case against you might fall apart. Eventually, the prosecution might have to drop the charges or offer a favorable plea deal at the very least.

ADW and Related Crimes

The offenses below are defined as related since they are frequently charged along with or rather than PC 245a1 and have common or shared elements the prosecuting attorney must demonstrate beyond any reasonable doubt for a conviction to occur. The state’s Penal Code defines numerous crimes related to ADW. These are:

PC 417, Brandishing Gun or Weapon

PC 417 is the state law defining the criminal offense of brandishing a gun or lethal weapon. You are guilty of this crime if you draw or exhibit a gun or lethal weapon or use a lethal weapon during a fight. Unlike assault using a dangerous weapon, a conviction under 417 PC does not necessitate evidence of the victim being assaulted.

Brandishing a weapon is generally a misdemeanor punishable by a county jail sentence of three months to a year. Brandishing a concealable gun is also deemed a misdemeanor if the brandishing happens on public property or in a public place. A conviction carries between three and 12 months in custody and a maximum fine of a thousand dollars.

Brandishing remains a misdemeanor, whether or not it happens on school property. However, note that if you brandish a gun on the grounds of a daycare center while the center is open for use, you will face wobbler charges. A misdemeanor conviction carries up to a year in jail, while felony liability carries a maximum prison sentence of three years. These same consequences apply once you brandish a gun in the presence of a police officer, peace officer, or any other law enforcement officer engaged in the performance of their duties.

VC 23110(b), Throwing a Dangerous Object at a Motor Vehicle

It is an offense under VC 23110(b) when, while intending to cause significant bodily harm, you willfully and maliciously throw or project any metal, bottle, brick, rock, or any other missile or project any other substance capable of causing severe bodily injury at an automobile or it's occupants. This crime is related to ADW since an object thrown at an auto might itself be a lethal weapon under PC 245a1. Violating VC 23110(b) is deemed a felony punishable by a maximum of three years in prison and a fine not exceeding ten thousand U.S. dollars.

PC 399, Failing to Control a Dangerous Animal

Section 399 of the Penal Code is the state's law on failing to control any dangerous animal. You perpetrate this crime when you purposely allow a dangerous animal to run around free or fail to use ordinary caution in taming it, and someone else suffers severe bodily harm or dies as a consequence. You can perpetrate ADW and a PC 399 violation simultaneously if your animal could attack someone on order and you issued the order to attack. The consequences of failing to control a dangerous animal vary based on whether the victim died or suffered severe bodily injury.

If the victim died due to your action, violating 399 PC will be a felony. Possible consequences for a conviction are felony probation, a fine not exceeding ten thousand U.S. dollars, and sixteen months, three years, or two years of incarceration.

If the victim suffered severe bodily harm, the crime will be considered a wobbler. A felony conviction carries a fine of not more than ten thousand U.S. dollars and sixteen months, three years, or two years of incarceration. A misdemeanor conviction carries summary probation, a fine of not more than one thousand U.S. dollars, and a maximum of six months in jail.

PC 217.1, Assault on a Public Official

According to PC Section 217.1, you assault a public official when you perpetrate an assault against someone designated as a public official to hinder the performance of, or in retaliation for, their duties. Unlike assault using a lethal weapon, you are criminally liable for this offense whether or not you used a lethal weapon to commit the assault.

Assaulting a public official is deemed a wobbler. A misdemeanor conviction is punishable by a jail sentence of up to a year and a fine of up to one thousand U.S. dollars. A felony liability, on the other hand, carries up to ten thousand U.S. dollars in fines and incarceration for three years.

PC 244, Assault Using Caustic Chemicals

You violate PC 244 when you maliciously and willfully throw, place, or cause to be thrown or placed any corrosive acid, vitriol, caustic chemical, or flammable substance on someone, intending to hurt their flesh or disfigure their body. This offense is related to ADW since caustic chemicals are dangerous in themselves and are likely to cause significant bodily harm. Assaulting someone with a caustic chemical is a felony carrying a prison term not exceeding four years and up to ten thousand U.S. dollars in fines.

PC 243(d), Battery with Serious Injury

You violate PC 243d when you batter someone, and it results in severe physical injury, including bone fractures, serious disfigurement, and concussions. ADW can become a battery with severe harm when the assault itself is completed. Violating PC 243d is a wobbler. A felony carries up to four years in prison and a fine not exceeding ten thousand U.S. dollars.

PC 69, Resisting an Executive Officer

You violate PC 69 when you intentionally try to prevent or deter an executive officer from doing their duties through violence or threats. However, taking a photo of an executive officer doing their duties is not unlawful, provided you are entitled to be present. You are also entitled to resist a peace officer if they are trying to make an unlawful arrest or apply excessive force.

This crime is deemed a wobbler. Misdemeanor liability is punishable by summary probation, a maximum of 12 months in jail, and up to ten thousand U.S. dollars. If convicted of a felony, you will be subject to formal probation, a fine not exceeding ten thousand U.S. dollars, and a maximum of three years of incarceration.

Find a Competent Assault and Battery Criminal Defense Lawyer Near Me

California treats ADW as a severe crime. Hiring a knowledgeable and devoted criminal defense lawyer is essential if you face prosecution. Your freedom, livelihood, and rights are on the line. A competent assault and battery criminal defense lawyer may negotiate a less severe charge, have the judge lower your sentence, or dismiss the charges entirely.

At Monterey Criminal Attorney, we understand how local courts operate and are knowledgeable about the state's criminal justice system. We will review the facts surrounding your case and develop a defense strategy to assist you in obtaining the most favorable outcome. Call us at 831-574-1791 for a free consultation.