Context plays a very important role in California assault cases.

State law defines the crime of assault as intentionally or recklessly attempting to inflict force on another person. Most “vanilla” cases of simple assault are straightforward misdemeanors that don’t carry significant penalties.

However, depending on how the assault is committed and who it is committed against, you might face significantly steeper penalties.

One such case is the crime of assault with a deadly weapon (ADW).

Assault with a deadly weapon refers to cases where someone attacks or attempts to attack another person with either a deadly weapon or enough force to cause great bodily injury. ADW cases can carry felony prison sentences up to 12 years depending on the facts of the case.

If you or someone you know is facing assault with a deadly weapon charges, it’s important to speak with a skilled criminal defense attorney as soon as possible. Your attorney can review your case with you and advise you on the best route forward.

Contact the Helfend Law Group today to discuss your assault with deadly weapon case for free.

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What is ‘Assault with a deadly weapon?’

Assault with a deadly weapon is defined in California Penal Code 245(a)(1) PC.

In order to convict someone of assault with a deadly weapon, a prosecutor will have to prove that five facts in the case were true:

The defendant performed an act that, by its nature, would result in the application of force to someone else.
This act was performed with either a lethal weapon, or enough force to produce “great bodily injury.”
The defendant performed this act willfully.
When the defendant acted, they were aware that this would lead a reasonable person to believe the act would lead to the application of force to the other person.
When the defendant acted, they had the ability to apply force with a lethal weapon or enough force to produce great bodily harm.

Let’s spend some time unpacking this.

What is ‘application of force?’

Application of force is “any act that reasonably causes a person to fear that they are about to be injured.”

This can include the slightest physical contact, if it was done in a rude or offensive manner. This also includes causing the alleged victim to come in contact with an object, for example, throwing an object at someone.

What is classified as a deadly weapon?

In order to be considered a deadly weapon under California law, the object in question must meet one of the following requirements:

The object is designed to inflict death or great bodily injury.
The object is used in a manner that is likely to produce death or great bodily injury.

This means that guns and knives qualify as deadly weapons in all cases. Then, depending on how they’re used, the following objects can also sometimes qualify as deadly weapons.

Bottles
Pencils
Baseball bats
BB guns
Motor vehicles
Dogs, if trained to attack humans on command

What is ‘great bodily injury?’

Great bodily injury is defined as “a significant or substantial physical injury.” This can include injuries such as:

Permanent disfigurement
Loss of a limb or organ
Fractures
Internal injuries
Severe burns

Is there such a thing as ‘Aggravated assault with a deadly weapon’ in California?

While some states have a class of aggravated assault charges, in California, there isn’t a specific offense for “aggravated assault” or “aggravated assault with a deadly weapon.”

Instead, the state addresses more serious assault cases with different offenses:

Assault with a Deadly Weapon (ADW). Penal Code § 245(a)(1) defines this as assaulting someone using a deadly weapon or instrument other than a firearm.

Assault with a Firearm. Penal Code § 245(a)(2) addresses assaults committed with a firearm.
Assault Likely to Produce Great Bodily Injury. Penal Code § 245(a)(4) pertains to assaults carried out by means likely to inflict significant or substantial physical harm.

Each of these offenses is classified as a “wobbler,” meaning they can be charged as either misdemeanors or felonies, depending on the specifics of the case. This allows courts to be more targeted with the sentences they apply.

Penalties for assault with a deadly weapon in California

In California, assault with a deadly weapon is a “wobbler,” which means that it can be either a felony or misdemeanor. The severity of the charge will depend on a number of factors, including the type of weapon used, the nature of the assault, and the victim’s injuries.

The typical penalties for misdemeanor assault with a deadly weapon in California can include up to one year of jail time, a fine of up to $1,000, or both. However, if the assault causes great bodily injury to the victim, the penalties can be much more severe.

The typical penalties for felony assault with a deadly weapon in California can include up to four years in state prison, a fine of up to $10,000, or both.

However, if the assault involved a firearm or caused great bodily injury to the victim, the penalties can be much more severe.

Do first-time felony offenders go to jail?

The short answer is that it depends. The California criminal justice system does take the defendant’s criminal record into account when determining penalties, but this does not guarantee a more lenient sentence.

For first-time felony offenders, several factors come into play when deciding the outcome:

Severity of the offense. Even as a first-time offender, you may still face significant prison time if the assault was particularly violent, caused great bodily injury, or involved a firearm or another dangerous weapon.
Plea negotiations. Your defense attorney can negotiate with the prosecution for a reduced charge or a more lenient sentence. For example, they may push for a plea to a misdemeanor offense or an ADW charge with probation, avoiding a state prison sentence altogether.
Probation eligibility. California courts sometimes allow first-time felony offenders to serve probation instead of time in state prison, particularly if there are mitigating factors in the case. Probation may come with conditions such as attending anger management classes, completing community service or paying restitution to the victim.
Mitigating factors. Lack of a prior record, strong community ties, a history of employment, or any other positive aspects of your character may sway the court to impose a less severe sentence, even for a serious offense like felony ADW.

In other words, while it’s possible to avoid jail time after a felony conviction, it’ll come down to the facts of your case.

Penalties for assault with a firearm

If the assault involved an ordinary firearm like a pistol or revolver, ADW with a firearm is treated as a wobbler like most ADW cases. The one major difference is that these cases carry minimum sentences of six months.

If the assault involved any of the following firearms:

Semiautomatic firearms
Machine guns
Assault weapons
.50 caliber rifles

Then, penalties include prison terms of up to 12 years.

Penalties for ADW on a police officer, public servant or security officer

As we mentioned above, context is critically important in assault cases. Some groups of people, including police officers, receive special protections under the law, and assaulting them can lead to additional punishments compared to “vanilla assault.”

If the victim was a police officer, firefighter or EMT, the case is punishable by five years in state prison. This rises to 12 years if the deadly weapon was a firearm.

Defenses against assault with a deadly weapon charges

There are a few common defenses that can be used against assault with a deadly weapon charges. Some of these include:

The defendant was acting in self-defense.
The defendant was acting in defense of others.
Lack of intent: The defendant did not act willfully or with the intent to assault the other person.
The defendant had no ability to actually inflict deadly force on the other person.

When you start working with a criminal defense lawyer, they will ask you a number of questions about the incident in order to get a better understanding of what happened. They may also want to review any evidence that is available, including police reports, witness statements, and photos or video footage.

They’ll use this to evaluate possible defenses and begin crafting a defense strategy to fight your criminal charges.

Get 24/7 help from an experienced criminal defense attorney

Assault with a deadly weapon is a serious charge. Dealing with a criminal case can be a very stressful experience. You may feel like you are alone and don’t know where to turn.

But luckily, there is help available. You can work with a law firm who will help you navigate the criminal justice system and who will fight for your rights.

Los Angeles criminal defense attorney Robert M. Helfend has fought for the rights of the accused since 1984, securing thousands of favorable results for his clients in that time. He is a specialist in violent crime cases and is available to help.

Call the Helfend Law Group today for a free consultation – 800-834-6434.

Published March 19, 2022. Updated October 30, 2024.