Is PC 245(a)(1) ADW a Misdemeanor or Felony?
California Penal Code 245(a)(1) PC describes the violent crime assault with a deadly weapon as when a person attacks, or attempts to attack, someone else with a deadly weapon, other than a firearm, or in a manner that is likely to cause great bodily injury.
Assault with a deadly weapon is generally called “ADW.” The statute used by prosecutors to charge someone with a crime when an unlawful attempt to injure another individual with a deadly weapon.
A “deadly weapon” in the context of this statute is almost any item that can be used as a weapon causing a severe injury, such as a knife, bottle, brick, razor blade, and more. ADW under PC 245(a)(1) is a California “wobbler,” which means the prosecutor has the discretion to file the case as a misdemeanor or felony offense.
Definition of ADW
Penal Code 245(a)(1) defines assault with a deadly weapon as follows:
- “Anyone that commits an assault on another person with a deadly weapon or instrument, other than a firearm, shall be punished by imprisonment in a state prison, a county jail, or by a fine up to $10,000, or both.”
Our Los Angeles criminal defense lawyers provide readers with a more detailed review below. PC 245 Subsection (a)(1) says that any person committing an assault on another individual with a deadly weapon or instrument other than a firearm is guilty of a wobbler crime. In a situation where ADW is initially charged as a felony, it can still be reduced to a misdemeanor crime by the following action:
- through plea bargaining with the prosecutor, or
- filing a Penal Code 17b PC motion to reduce in court.
If you are convicted of Penal Code 245(a)(1) PC assault with a deadly weapon as a misdemeanor, it's punishable by a maximum of one year in the county jail and a fine up to $1,000. If you are convicted of ADW as a felony, it's punishable by 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, the ADW is a straight felony punishable by five years in state prison. If an actual firearm was used to commission the crime, the penalties increase up to 12 years in prison.
Penal Code 245 PC: A Strike Under the California Three Strikes Law
When you're looking at assault with a deadly weapon, you're going to need some more detail in determining whether or not it's a strike offense. First off, assault with a deadly weapon can be charged as a misdemeanor. So, if the City Attorney's office charges it as a misdemeanor, then it's not a strike. There are no misdemeanor strikes. It has to be a felony.
Some people ask, what determines whether California Penal Code 245(a)(1) assault with a deadly weapon is filed as a misdemeanor or a felony?
- that's at the discretion of the prosecutor;
- depending on how severe the incident was;
- what your criminal records look like;
- and a host of other factors.
The next thing is, what type of an assault with a deadly weapon are you charged with? For example, Penal Code Section 245(a)(4), an assault likely to produce great bodily injury, is not a strike. Typically, it's filed as a felony.
You could face prison time for that, but it could also be reduced to a misdemeanor if you end up getting probation and can complete your probation.
Defendant Admitting They Used a Deadly Weapon
As far as Penal Code Section 245, felony charges that could be classified as a strike, you're talking Penal Code Section 245(a)(1), which is assault with a deadly weapon. This statute can be charged as a felony and can be a strike if you admit that you used the weapon during the crime.
One big thing that happened in the early 1990s when the three strikes law passed, Penal Code Section 245, was not a strike and was not explicitly mentioned in the three strikes law language.
So, what ended up happening is a lot of times when people were charged with a new felony, and then the prosecutors because there was eventually language put in about assault with a deadly weapon, tried to claim that it was a strike.
However, ultimately, it was determined that for a prior conviction to be a strike, the person had to admit that they used a deadly weapon. It could be a gun, a knife, or some other weapon. If they did not realize they used a deadly weapon, the last case could not be used as a strike.
Defendant Pleading to a “Strike”
Now, because of all the litigation that has gone on surrounding assault with a deadly weapon case, prosecutors and judges are very careful how these cases are dealt with. They pretty much know when someone is offered a resolution and when the judge sentences the person under an assault with a deadly weapon case:
- they know whether or not that case is going to be a strike,
- they know the Code Section the person is pleading to, and
- they specifically tell the person you're pleading to a strike, and do you understand that?
Criminal Defense for Assault with a Deadly Weapon Cases
However, it's still crucial to have a criminal defense attorney who has experience dealing with PC 245(a)(1) assault with a deadly weapon case. Often, I've been able to avoid a strike by getting a different Penal Code Section from the prosecutors to allow the defendant to plead to if it's the appropriate case for that.
You need to understand the three-strikes law completely, assault with a deadly weapon case, Penal Code Section 245, and all related sections to truly represent somebody and avoid a strike.
Because if you get convicted of a strike, for example, Penal Code Section 245(a)(2), assault with a firearm, it is a strike. It's a serious felony. As I made this post in 2021, you would only serve 50% of the time in custody of whatever custody time you got.
However, if you were hit with an assault with a deadly weapon under a Section that was a violent felony, you would end up serving 85% of the time you got because for all violent strikes, you have to do a higher percentage of time in California.
So, if you or a loved one is facing an assault with a deadly weapon charge, you're trying to avoid a conviction or avoid a strike, depending on whether or not there's good evidence against you, you've come to the right place.
I've been handling these assaults with a deadly weapon case since the three strikes law came into passage nearly three decades ago. I know what it takes to get the best result. I've worked for the DA's office. I've worked for a Superior Court Judge, and since the early 1990s, I've been a criminal defense attorney defending people just like you and getting great results.
Pick up the phone now. Ask for a meeting with Ron Hedding. I stand ready to help you. Hedding Law Firm is located in Los Angeles County, and you can reach us for a free case consultation by phone or by filling out our contact form.
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