The California crime of assault with a deadly weapon is defined under Penal Code 245(a)(1) PC and is also simply known as “ADW.” The statute describes this crime as when someone attacks another person or attempts to attack, using a deadly weapon, not a firearm, or by means likely to cause a great bodily injury (GBI).
The closely related crime of assault with a firearm is defined under a separate statute of Penal Code 245(a)(2) PC. Prosecutors will typically use the ADW statute to file charges against someone when an unlawful attempt to injure another person using a deadly weapon.
So, what exactly is considered a “deadly weapon” in the state of California? Put simply, it can be almost anything capable of being used as a weapon causing a severe injury. Some common examples include a knife, baseball bat, or any other similar item.
One of the most common examples of when a prosecutor will file charges under PC 245(a)(1) assault with a deadly weapon is a situation where two men are fighting, and one of them pulls out a knife and attempts to stab the other.
The legal definition of ADW under Penal Code 245(a)(1) is as follows:
- “Anyone who commits an assault on someone with a deadly weapon shall be punished by imprisonment in state prison for two, three, or four years, or county jail for up to one year, or a fine up to $10,000, or both.”
Our Los Angeles criminal defense attorneys will review the laws and best strategy to fight the case below.
What Factors Make ADW a Misdemeanor or Felony Offense?
Penal Code 245(a)(1) assault with a deadly weapon is a California “wobbler” that the prosecutor can file as a misdemeanor or felony crime. As noted, Subsection (a)(1) of Section 245 says anyone committing an assault on somebody using a deadly weapon or instrument, other than a firearm, is guilty of this wobbler crime.
In a situation where the ADW case is initially charged as a felony by the prosecution, it can still be reduced to a misdemeanor crime by:
- plea negotiations with the prosecution/filing deputy, or
- filing a motion to reduce in court under Penal Code 17b PC.
If you are convicted of a misdemeanor ADW case, the punishments include up to one year in county jail and a maximum fine of $1,000. If you are convicted of a felony assault with a deadly weapon case, the punishments include two, three, or four years in a California state prison and a maximum fine of $10,000.
If the victim was a police officer or firefighter, Penal Code 245(a)(1) ADW is a straight felony crime. If convicted, the punishments include up to five years in prison, but you can be sentenced to up to 12 years if a firearm is used.
What are the Related Crimes?
- Penal Code 664/187 PC – attempted murder,
- Penal Code 217.1 PC – assault on a public officer,
- Penal Code 240 PC – assault,
- Penal Code 242 PC – battery,
- Penal Code 243(b) and (c) – assault on a police officer,
- Penal Code 417 PC – brandishing a weapon.
Best Strategy to Fight the ADW Case
I've been handling these assaults with a deadly weapon case under Penal Code Section 245(A)(1) for almost 30 years. Believe it or not, there's a lot of assault with a deadly weapon case. To me, the best strategy is first to lay out all of the facts so we can see exactly what you're up against. The type of facts I'm talking about include:
- was anybody injured?
- what type of weapon was used?
- was it a gun?
- was it a knife?
- was it afoot?
A foot? Yes. Believe it or not, we always think assault with a deadly weapon is some real weapon like a knife or a gun. But sometimes, if people are stomping on somebody's head with a boot, for example, or almost running somebody over with a car, I've seen those cases charged as assault with a deadly weapon, so you have to be cautious of that.
To me, it's much more severe if you have a real weapon like a gun. If you're pointing a gun at somebody and telling them I'm going to kill them, but you don't shoot or kill them, the prosecutors still consider that a dire situation.
You have to realize they're always geared toward protecting the public, ensuring that whatever they do with your case, it doesn't come back to haunt them. In other words, you don't come back as a criminal defendant doing the same thing or doing something worse. So, when you think about how the case should be dealt with, it has to be dealt with from that mindset of if we're going to fight the case, saying you're not the person that did it, or you were defending yourself, that's a different story.
Negotiating an Assault with Deadly Weapon Case
But what I'm talking about is negotiating these cases and trying to get something other than assault with a deadly weapon. Because typically, if you get convicted of assault with a deadly weapon in one of the Los Angeles County Courts, such as the San Fernando or Van Nuys courts, or other surrounding courts — you're typically facing prison time. You'll have a strike on your record for the rest of your life.
So, the strategy should be, number one, if we can win it, take it to a jury trial, do the investigation, fight, and win. You've come to the right place because I've done over 200 jury trials on the defense side; not the prosecution's side, but the defense side.
You want somebody that's gone toe-to-toe with the government, not somebody who has prosecuted and put people away. I always laugh when I see some of these other attorneys' websites.
Who cares if you were a prosecutor for many years. All that means is you've put people away, and you probably have a jaded mean attitude.
You've come to the right place to help you. When we talk about the best strategy, if we decide that we can't win your case, in other words, you've done something criminal, then what we need to do is mitigate it.
In other words, we need to show a different side of you. We need to tell your story because sometimes, the police make it all one-sided. They're only getting things to help them prove the case. They're not getting the whole story.
That's my job as your advocate is to work with you and an investigator if necessary. We don't need one every time. Sometimes you can give me the correct information that I need. You can point to the witnesses we need to talk to, and I can use my investigator to take care of that.
Seeking Reduced Charges or a Case Dismissal
So, once we start to turn the tide on what happened and what you should be facing, then we have a chance to begin negotiating for a different sentence. For example, assault likely to produce significant bodily injury, California Penal Code Section 245(A)(4) PC — that's not a strike.
That can be reduced to a misdemeanor if they wanted to, so that's a much better charge than 245(A)(1); of course, you can try to take the case outside the gambit of this assault behavior.
We have to look at what happened because the prosecutors don't like to change a charge that doesn't have anything to do with the factual scenario we're talking about, so we have to bear that in mind. We've got to realize that, and once we know that, we can come up with another charge that suits your case.
So, my job for you is to keep you out of prison and keep you out of jail if we can, try to minimize the charge, and get you out of the criminal justice system as fast as possible. Pick up the phone. Make the call and take the first step. Set up a meeting with me. Well, sit down and talk about it.
My office manager is the one who usually answers the phone. He's been doing it for almost 20 years working for me, so he understands these cases as well. So, he can help answer your questions, set the groundwork, and then we'll meet, talk about it and get the issue taken care of. Pick the phone up now. Make the best decision you've ever made to get the process of getting this behind you and taking control back of your life. Hedding Law Firm is based in Los Angeles County and offers a free case evaluation.