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What is Assault with a Deadly Weapon?

Posted by Phillip Crawford | Dec 28, 2022

In California, the crime of Assault With a Deadly Weapon (ADW) is defined by Penal Code Section 245(a)(1). Typically, this crime is filed as a felony charge, although it is a “wobbler” and can be filed as a misdemeanor as well. In order to convict someone of ADW, the prosecutor has to prove two main components: (1) that the defendant committed an assault and (2) that the defendant assaulted someone with a deadly weapon.

Assault Defined

In California law, assault means using force against another person or merely putting another person in fear of the use of force. To be convicted of assault, you do not have to actually cause any harm or actually touch anybody at all. More specifically, the law provides that an assault is merely an act that, “by its nature would directly and probably result in the application of force to a person.” (CALCRIM Jury Instruction 875.) An assault could be punching someone in the face or merely throwing an object at a person.

Deadly Weapon Defined

A deadly weapon is any object that is either inherently deadly (like a knife or a firearm) or any object that is used in a way that is likely to cause death or great bodily injury. This definition is quite broad and can include things like: automobiles, gardening tools, household appliances, etc. 

ADW is so broad that it encompasses shooting a person with a gun, stabbing somebody, trying to run someone over with a car, or even just throwing a hard object at someone.

Punishment

As indicated above, an ADW is typically charged as a felony. If convicted of a violation of Penal Code 245(a)(1) as a felony (and the weapon is not a firearm), the punishment would either be felony probation or a prison term of two, three, or four years. If the weapon was a regular firearm (such as a handgun), the prison term would be the same. However, if the weapon was an “assault rifle”, the prison term could be up to 12 years. A felony conviction would also trigger a lifetime firearm ban. Additionally, a felony conviction for this offense is considered a “strike”.

If convicted as a misdemeanor, the maximum punishment would be one year in County Jail. If the weapon was a firearm, there is a minimum of six-months of jail time. A misdemeanor conviction would trigger a 10-year firearm ban in California.  

In addition to the base punishment, there are additional enhancements that are typically added to these charges. For example, if you personally inflicted great bodily injury during the assault, your prison sentence could be increased by three additional years. There are further enhancements if the victim was law enforcement, a child, or a domestic partner.

Defenses and Lesser Charges

Even if the Prosecutor can prove the elements of ADW, it can be a complete defense to the charge if you acted in self-defense or defense of others. If a jury finds that you acted in reasonable self-defense, then you are entitled to be acquitted of the ADW charge.

An ADW charge can be negotiated for lesser felony charges. For example, a conviction of Assault with Force Likely to Cause Great Bodily Injury (PC 245(a)(4)) does not automatically result in a “strike” on your record. Additionally, ADW cases can sometimes be resolved for lesser misdemeanor charges such as Simple Assault (PC 240) or Battery (PC 242). 

The Crawford Law Firm has experienced attorneys ready to defend against ADW cases. Call us now today for a free consultation!

About the Author

Phillip Crawford

Phillip Crawford is an award-winning DUI attorney. In 2018, he won the California DUI Lawyer's Association's top honor when he received the President's Award for excellence in DUI defense. His sole focus is defending DUI cases. Phillip is regarded by judges, prosecutors and fellow defense attorneys as the top DUI in the area who fights passionately for his clients.

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