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Aug 25, 2020

Penal Code 245a1 PC – Assault with a Deadly Weapon

Being charged with a violation of California Penal Code 245(a)(1) – assault with a deadly weapon – can be the beginning of the end of life as you know it. In California, assault with a deadly weapon is what’s known as a “wobbler,” which means that it can be charged as either a misdemeanor or a felony. Before delving into assault as a deadly weapon, it’s important to understand the larger picture of assault laws in California.

The Bigger Picture

“Assault and battery” is an often-used term that doesn’t accurately reflect the law. In Alameda County and the rest of California, assault is one crime and battery is another. The easiest way to think about the difference is that assault is trying to hurt someone using force and battery is actually using force. In other words, assault is the attempt and battery is the successful action.

As an example, let’s say that Joe and Lisa are having an argument over Joe spending all of his free time with his buddies. Things get heated and Lisa says, “You make me want to throw this lamp at you.” That’s not assault because Lisa doesn’t actually pick up the lamp. On the other hand, if she does throw the lamp at Joe, then Lisa can be charged with assault. She intended to hurl the lamp at Joe and actually did so. It doesn’t matter that Joe ducked and the lamp instead hit the wall. If the police are called, then Lisa is likely to be charged with assault.

Simple assault, which is a misdemeanor, carries a penalty of up to six months in jail, a fine of up to $1,000, or both. A misdemeanor simple assault conviction can result in up to twice the jail sentence and fine if the person assaulted is working in the role of a public official, such as a police officer or someone who enforces California’s various health and safety codes. The same holds true if the person assaulted is a firefighter, EMT, lifeguard, highway construction worker, or school employee. The enhanced penalty also applies if the assault occurs in certain locations, such as on public transportation, in a public park, or on school property.

Aggravated Assault in California

Each year in California, there are more than 100,000 reported cases of aggravated assault, and more than 90,000 people are arrested for felony assault. A violation of Penal Code 245(a)(1) – assault with a deadly weapon – is one type of aggravated assault. In order for assault with a deadly weapon charges to stick, the Alameda County District Attorney’s office must establish a number of facts.

If you’ve been charged with assault with a deadly weapon in Oakland, the prosecutor must first prove that you applied force. This is another way of saying that you touched the other person or used an object to touch the other person. If Lisa hurls the lamp at Joe and Joe ducks, for example, Lisa has still used a potential deadly weapon to attack Joe. Again, it doesn’t matter that the object never actually made contact.

The prosecutor also has to prove that you used a lethal weapon or that the object you used was enough to cause great bodily injury. Some deadly weapons – like guns and knives – are intuitive. Others – like Lisa’s lamp – are less so. To qualify as a deadly weapon, the object must be used in a way that it could kill or seriously injure the other person. If Lisa hit Joe with a tree limb or a baseball bat, that could be considered a deadly weapon. The same holds true if she tried to stab him with a knitting needle or cut him with a broken bottle. People have been convicted of assault with a deadly weapon by using their vehicle to try and run over someone or by telling their dog to attack another person.

If you’re charged with assault with a deadly weapon, the prosecutor also must establish that you acted on purpose and that there was the potential to cause great bodily harm. Great bodily harm can mean something relatively innocuous, like a black eye, or very serious, like a gunshot wound.

The penalty for a conviction of violating Penal Code 245(a)(1) – assault with a deadly weapon – depends upon many factors. The first is whether it is prosecuted as a misdemeanor or a felony. In the case of Lisa and Joe, a misdemeanor conviction for assault with a deadly weapon can result in a sentence of up to one year in county jail and a fine of up to $1,000. If Lisa is convicted of felony assault with a deadly weapon, she faces a state prison term of two, three, or four years, along with a fine of up to $10,000.

Other ADW Circumstances

California Penal Code 245(a)(1) covers the basics of assault with a deadly weapon other than a firearm, but the law’s subsections spell out other circumstances under which charges can be brought and penalties can be enhanced. These include:

  • Assault using a firearm: Penal Code 245(a)(2) says that a misdemeanor conviction for using a firearm in an assault results in a minimum of six months in jail and a maximum of one year. A felony conviction leads to a sentence of two, three, or four years in prison. Both misdemeanor and felony convictions carry a maximum fine of $10,000.
  • Assault using specified firearms: Penal Code 245(a)(3) mandates that, if the assault is committed using a machine gun, assault weapon, or .50 BMG rife, then a conviction results in a state prison term of four, eight, or twelve years.
  • Assault likely to produce great bodily injury: Penal Code 245(a)(4) says that a misdemeanor conviction for assault likely to produce great bodily injury is punishable by a maximum of one year in jail. A felony conviction carries a prison sentence of two, three, or four years. Both carry a maximum fine of $10,000.
  • Assault using a semiautomatic weapon: Penal Code 245(b) makes it a felony to use a semiautomatic weapon in an assault. If convicted, the prison sentence is three, six, or nine years.

The next sections of California law pertain to assaults against firefighters or California peace officers in the line of duty. The law broadly defines “peace officer” to include everyone from police officers to fish and game wardens to those who enforce state labor standards. In these cases, assault using something other than a firearm is a felony punishable by a prison sentence of three, four, or five years. If a firearm is used, then the prison sentence increases to four, six, or eight years. If a semiautomatic gun is used, then the sentence increases to five, seven, or nine years. The use of a machinegun in an assault against a peace officer or firefighter carries a sentence of six, nine, or twelve years.

It’s important to keep in mind that an ADW conviction can have consequences that reach beyond jail or prison time and a hefty fine. For example, if you are convicted of felony assault with a deadly weapon, it counts as a “strike” in your criminal record if a firearm was used or if the person assaulted sustained great bodily injury. If you aren’t a U.S. citizen, a felony conviction can result in your deportation and can prevent you from ever reentering the country. And, a felony conviction can result in the loss of your gun rights.

How an Alameda County ADW Defense Attorney Can Help

If you’ve been charged with a violation of California Penal Code 245(a)(1) – assault with a deadly weapon – you don’t have a moment to waste. The stakes are simply too high. Life as you know it – indeed, your very freedom – is at risk. That’s why you need an Alameda County assault with a deadly weapon defense attorney at your side. An experienced Oakland assault with a deadly weapon defense lawyer can help guide you through every step of the process. When you are brought in for questioning, for example, you attorney can bear witness to make sure that the police don’t infringe upon your rights. Your attorney can also ensure that you don’t incriminate yourself or otherwise inadvertently strengthen the prosecutor’s case.

In the earliest days of your case, your Alameda County assault with a deadly weapon attorney can contact the prosecutor’s office to begin negotiations. Your attorney knows that the Alameda County District Attorney’s office brings to trial only a tiny fraction of the cases they prosecute. The office simply doesn’t have the personnel or money to go to trial in every case. In truth, they are looking to negotiate plea agreements for as many cases as possible. A seasoned Oakland assault with a deadly weapon lawyer working on your behalf uses this knowledge to your advantage.

The outcome of your case can significantly improve as a result of your attorney’s communications with the prosecutor’s office. These improvements include:

  • Having the charges dismissed: Your Oakland ADW defense attorney can point to the holes in the prosecutor’s case. If the evidence isn’t solid – or if it’s inadmissible – then it may not be worth their while to move forward. If this is the outcome, then you are free to move on with your life.
  • Having the charges reduced: The prosecutor wants to cut a deal. If the evidence against you is solid, your attorney can use the D.A.’s desire for a deal to negotiate a plea agreement to a lesser charge. If you are being brought up on felony charges, for example, your Alameda County ADW attorney may be able to convince the prosecutor to reduce the charges to a misdemeanor. If you’re charged with misdemeanor assault with a deadly weapon, your lawyer may be able to get the charges dropped to simple assault. If a firearm was involved, your attorney may convince the prosecutor to drop the charges from ADW to brandishing a weapon.
  • Having the sentence reduced: The jail and prison sentences for assault with a deadly weapon convictions are significant. As part of the negotiations, your Oakland ADW defense lawyer can convince the prosecutor to advocate for a lighter sentence or no sentence at all. For example, for a misdemeanor plea, your attorney may ask that the District Attorney’s office recommend summary probation instead of jail time. Summary probation is informal, and doesn’t require meeting with a probation officer; it simply involves checking in with the court from time to time. If you are facing a felony ADW conviction, your attorney can argue for formal probation – which includes a probation officer – instead of prison time.

If the negotiations with the District Attorney’s office falter, a seasoned Oakland assault with a deadly weapon attorney is prepared to go to trial. While each case is unique, your lawyer may argue that the so-called “weapon” you used didn’t have the potential to be deadly. They might assert that the so-called assault was an accident; without evidence that the act was willful, the prosecutor’s assault case crumbles. Your attorney can argue that you acted in self-defense. If they use this tactic, then they will demonstrate that you believed you were in danger of being harmed and that you took appropriate actions to protect yourself.

An assault with a deadly weapon charge isn’t something to be taken lightly. The experienced Alameda County ADW attorneys at Silver Law Firm can ensure that you are well-represented, and they can achieve the best possible outcome for your case. If you’ve been charged with ADW, the clock is ticking, so call today for a free, no-obligation consultation.



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