Assault with Deadly Weapon - Penal Code 245(a)(1)

Assault with a deadly weapon is a strike under the California Three Strikes law if it is pled and proved as a felony and, in my opinion, requires the assistance of a top-level criminal defense attorney. Because it is a wobbler (it can be charged as a felony or misdemeanor), I have often successfully convinced the prosecutors to reduce the charge to a misdemeanor; then, the Three Strikes Law does not apply. You are no longer facing a state prison sentence.

Several defenses and tactics can be employed by your defense attorney, depending on the circumstances of your arrest and the severity of the alleged crime. The term “weapon,” as far as these cases are concerned, is broadly construed and can be just about anything under the right circumstances. Anything that can cause serious injury to the alleged victim will suffice to prove that you used a deadly weapon.

Also, for this offense to be a strike, the prosecutors must plead in their complaint that you used a weapon, and you must admit it as part of a deal, or it must be found faithful by a jury for you to have a strike on your record. Guns, knives, and billy clubs are weapons for an assault with a deadly weapon case. Also, things like feet, hands, elbows, and other things that can inflict severe damage are considered weapons in these cases if the prosecutor can prove it.

In these cases, the successful defenses I have seen involve self-defense, defense of others, and mutual combat. But sometimes, the person is guilty with an explanation. This means they acted unlawfully, but there were good reasons for their conduct that should be considered before they are saddled with a strike and a prison sentence.

In my opinion, only seasoned, savvy defense attorneys should be dealing with these cases because they have the experience and the know-how to defend these cases and make the correct arguments that will make a difference to judges and prosecutors who are tired and sometimes not very easy to deal with or convince that a client should be given a break.

Law Related to Assault with a Deadly Weapon Cases

In general, if someone threatens another person with what can be classified as a weapon, they are guilty of assault with a deadly weapon. One big area I see come up time and time again is when someone uses their car as a deadly weapon.

Prosecutors love to charge this as assault with a deadly weapon and try and punish the offender. This is where I generally see the prosecutors going overboard and trying to get too much out of a case and a set of circumstances. Unless the defendant tried to run the other party over, assault with a deadly weapon should usually not apply to cars, in my opinion. Assault with a deadly weapon (AWD) is a severe crime and can result in long-term imprisonment.

California Penal Code Section 240 defines “simple assault” as an unlawful attempt to violence another person. California Penal Code Section 245(a)(1) defines assault with a deadly weapon or aggravated assault as committing an assault with a deadly weapon likely to cause significant bodily injury (example: blade, knife).

Surrounding circumstances include the type of weapon/instrument used, whether the person assaulted was injured, and the status of the victim. ADW may result in prison or jail time; depending on the conduct; we will do everything to prevent such harsh penalties.

Can My Second Offense Assault Charge be Reduced to a First-Time Charge?

Assault offenses are usually charged as misdemeanors, but more serious crimes are generally related to these offenses. If you get convicted of assault with a deadly weapon, that will strike your record.

If you are convicted of a second offense, that would be a second strike on your record, and the punishment would be doubled. You don't want to plead to a second assault with a deadly weapon because you would have a second strike on your record. Any convictions could result in 25 years under the California Three Strikes law, which occurred in the early 1990s.

This law has been challenged by the Supreme Court and has held its mud to put people in prison. Many things have changed over the years—some for the benefit of the defendant and some for purposes of making punishments much harsher. If the prosecutors discover new information about your charge or criminal history, they could take away the plea deal. However, if the prosecutors were to try to pull out of a plea deal, the defense would argue that they are not justified.

Pulling a plea deal puts the prosecutors at risk of engaging in misconduct. A judge can reject a plea offer, even after you've accepted it. For instance, a judge may review the case and decide that you should go to prison rather than get probation. If this happens, you would have the option of taking the deal the judge is offering or fighting the case and trying to get back the offer you originally received.

California Criminal Jury Instruction 875 For ADW

California Penal Code Section 245(a)1, assault with a deadly weapon, is profound. Despite any conviction for it in any jail or prison that the judge doles out, the defendant will serve 85% of it, and they will have a sentence on the record for the rest of their life because of the Three Strikes Law.

To prove this charge, specific jury instructions apply, and you want to know those beforehand.  You want to know those before the case starts because it's imperative that if you're going to try to defend a jury trial case, you need to know from a starting point what the prosecutors have to prove from the beginning so that you can negate any elements that they're trying to prove.

Defendant Acted With a Deadly Weapon

So, what a jury will be read – and it's under the California Criminal Jury Instructions 875 related to assault with a deadly weapon – Penal Code Section 245(a)(1). They're going to say the defendant is charged with a specific count of assault with a deadly weapon, and then the issue will be what type of weapon it is.

So, to prove that the defendant is guilty of this particular crime, the people or prosecutors have to prove (1) that the defendant did an act with a deadly weapon; believe it or not, it can be a gun – that's obvious – it can be a knife – any firearm.  It can be a baseball bat.  It can also be a car.  It could be someone's foot.  It could be someone's fist.

It just depends on how the person was using the weapon.  If someone is stomping another person's head with a boot, they could be charged with assault with a deadly weapon.  The defendant has to do some act – and that act has to be such an act that would directly and probably result in the application of force to another person.

So, that's pretty clear – pull a gun and point it at somebody, try to run somebody over with a car, throw a knife at somebody – there are several different examples you can come up with to fulfill that act element for purposes of assault with a deadly weapon.

Also, typically (2) the defendant has to do the act willfully.  It cannot be something where the person is drunk; it can't be something where the person doesn't know what they're doing; it cannot be something where the person is not aware of whatever action they're claiming they're doing.  Of course, that will center around the facts of the case-specific to this particular defendant.

Defendant Knew Their Actions Could Cause Great Bodily Injury

The next element that the prosecutors have to prove in an assault with a deadly weapon case is if the defendant acted and they were aware of the facts that would lead a reasonable person to realize that their actions by their nature would directly or probably result in the application of force to someone else.

So, you have to know if you're going to point a gun at somebody – that's assault with a deadly weapon.  They're going to see that you could shoot them.  Suppose you're going to throw something at somebody, try to drive a car at somebody, or stab somebody with a knife. In that case, this type of activity is something you should know could produce significant bodily injury.

This leads us to the next element: the defendant acted and had the present ability to apply force likely to produce significant bodily injury.  So, if the defendant's on TV, a show on these things, they don't have the present ability to do anything, but if they're there. They have some weapon, and they're assaulting you with it, which could undoubtedly meet this element because they have the present ability; they're right there.

Defendant Was Not Acting in Self Defense

The final thing – I don't know if it's an element – but it's certainly important – the defendant did not act in self-defense.  If someone is acting in self-defense when they use a weapon, that's a complete justification for the crime, and they can't be convicted of a crime. That's what happens a lot in these cases.  People are charged with these serious offenses – assault with a deadly weapon.  They're looking at all this time in prison, but they were defending themselves.

As long as they were reasonably defending themselves under the circumstances and were not acting with too much force, they could undoubtedly assert the defense of self-defense against an assault with a deadly weapon charge. If they're successful, they wouldn't be convicted of anything. Of course, all these facts and circumstances spin on the particular case – what happened, what evidence the prosecutors can prove, and what evidence the prosecutors can't prove.

When it comes to assault with a deadly weapon under Penal Code Section 245(a), the jury instructions are used by most of the judges, at least in the twenty-five years that I've been practicing. Recently, CALCRIM took over for CALJIC. They now use the CALCRIM jury instructions, so if you're interested in what the prosecutors have to prove in your criminal case if you're charged with assault with a deadly weapon, you should go to that CALCRIM 875.

That lays it out there.  And, of course, you have to talk to an attorney who has been down this road before.  I've been doing this for twenty-five years.  I've done a lot of these cases and have had a lot of success, and it's because I know going into the case what the prosecutors have to prove.

I know what I'm going to challenge, and if we can negate some of these elements and show that this was self-defense, no, it didn't happen that way; you have only half the story because the police only talked to half of the people involved.  They didn't speak to my client.

They didn't talk to all the witnesses, and now that you have the whole story, jury, you will see that my client was not guilty, and my client will be able to walk out of that courtroom.  That's what we're shooting for when we do these jury trials, and that's why we have to know from the beginning what the elements of assault with a deadly weapon are and how we can counter them.

Related Content

Can My Attorney Go To The Court Dates For Me?

Code Section 977A allows criminal defense attorneys to appear for their clients in misdemeanor cases. However, I usually want my clients there. When a client is not there, I have to send the paperwork through the mail and explain to them the terms and conditions of the plea, which can lead to problems.

There are even times when other attorneys will mess something up, and a warrant will be put out for my client's arrest. Under such circumstances, the client could be facing a potential jail sentence. I will appear for the client at the first appearance, but once I have the case dialed in, I will want them there to ensure that everyone is on the same page. For felony cases, the client has to show up to court; if they don't, a warrant for their arrest will be issued, and any posted bail will be forfeited, which will create a huge problem.

There are exceptions to that rule, however. For example, if someone lives out of state, the judge might work things out to be released on their recognizance or might issue and hold a bench warrant so that the bail is not forfeited. As long as the defendant shows up to the next court date and does what they are supposed to do, they won't release the bench warrant, and the bail situation won't get messed up.

Contact the Hedding Law Firm for Help

We are seasoned and qualified in the area of criminal defense. We have dealt with thousands of assaults and assaults with deadly weapons and have seen great results. Our Van Nuys Lawyers are well-informed on all laws and courtroom procedures involving assault with a fatal weapon case. We guarantee our dedication and persistence in doing everything we can to get you the best possible results. We carefully analyze the charges and assert any defense applicable to the order.

Common defenses to ADW are self-defense, defense of others, consent, lack of intent, insufficient evidence, constitutional violations by police officers, and inability to carry out the assault, such as threatening to shoot with an unloaded gun. In some cases, we could pursue an intoxication defense for lesser charges. If you face an ADW charge, we aim to keep you out of prison and protect your legal rights. Contact us to set up a free consultation.