Assault with a deadly weapon under California Penal Code 245(a)(1) commonly known as “ADW,”. In simple terms, ADW happens when you attack someone with a weapon that could cause serious harm or when you use force that’s likely to result in significant bodily injury.
Please note that a loaded firearm is not included in Penal Code 245 because it’s treated separately with more severe legal consequences. So, what does the law consider as a “deadly weapon” in this statute? Essentially, it can be almost anything if it has the potential to be lethal.
WHAT IS A DEADLY WEAPON ?
In simple terms, a deadly weapon is defined as any object or weapon that, when used, can cause serious injury or even death. Some common examples include knives, baseball bats, bottles, vehicles, rocks, clubs, aggressive dogs, unloaded firearms, blunt objects, and chemicals.
Now, when we talk about causing “great bodily injury,” we mean a significant physical harm, not just minor injuries. It’s important to understand that while your use of a deadly weapon must be intentional, you don’t necessarily need to have intended to harm the victim.
ELEMENTS OF ASSAULT WITH A DEADLY WEAPON CALIFORNIA
Under California law, for a conviction of Assault With A Deadly Weapon (ADW), the prosecution must establish the following elements:
- You committed an assault using a deadly weapon other than a firearm; OR
- You applied force that was likely to lead to significant bodily injury;
- Your actions were willful;
- The circumstances indicated to a reasonable person that force would likely be used;
- You had the capability to employ force that could result in significant bodily injury or an assault;
- Your actions were not in self-defense or in defense of another person.
EXAMPLES OF ASSAULT WITH A DEADLY WEAPON CALIFORNIA:
Here are two examples of individuals who might face charges under California’s “assault with a deadly weapon” law:
Sarah and Mark are at a crowded nightclub in Los Angeles. They get into a heated argument over a personal matter. Sarah, in a fit of anger, pulls out a switchblade knife from her purse and lunges at Mark, making a slashing motion. Mark manages to dodge the attack, but the knife grazes his arm, causing a deep cut that requires immediate medical attention.
In this case, Sarah’s use of the switchblade knife in a manner that could have caused great bodily injury or death to Mark could lead to charges of assault with a deadly weapon under California Penal Code 245(a)(1) PC.
Jenny and Mark, two acquaintances, are at a Los Angeles County park attending a community event. During the event, they become embroiled in a heated argument over a business deal gone sour. The argument quickly escalates, and their voices grow louder, drawing the attention of other event attendees.
In the midst of the argument, Mark suddenly reaches into his backpack and pulls out a heavy, metal bicycle chain. With anger in his eyes, he swings the chain at Jenny, narrowly missing her but causing a loud, menacing clang as it hits a nearby bench. Jenny is terrified and calls for help.
In this scenario, Mark’s use of the bicycle chain as a weapon, with the clear potential to cause great bodily injury or death to Jenny, could result in an assault with a deadly weapon charge under California Penal Code 245(a)(1) PC. The decision whether to charge Mark with a misdemeanor or a felony would depend on the discretion of the Los Angeles County prosecutor, considering the specific facts and evidence surrounding the incident.
WHAT ARE THE RELATED CRIMES?
There are similar crimes that a prosecutor can charge a person with, depending on the circumstances and the nature of the offense. Some of these crimes include:
- Assault with a Firearm (Penal Code 245(a)(2) PC)
- Aggravated Assault (Penal Code 245(a)(4) PC)
- Criminal Threats (Penal Code 422 PC)
- Brandishing a Weapon (Penal Code 417 PC)
- Battery (Penal Code 242 PC)
- Battery Causing Serious Injury (CPC §243(d) PC)
- Attempted Murder (Penal Code 664/187 PC)
- Simple assault (Penal Code 240 PC)
- Attempted murder (Penal Code 664/187(a) PC)
- Assault with caustic chemicals (Penal Code 244 PC)
- Assault on a public official (Penal Code 217.1 PC)
- Failing To Control A Dangerous Animal (CPC §399)
- Throwing Dangerous Objects at Vehicles ( California Vehicle Code Section 223110(b))
- Throwing Dangerous Object At A Motor Vehicle (California Vehicle Code (CVC) §23110(b))
- Assault On Emergency Personnel (CPC §241(c))
- Assault On A Police Officer (CPC §§243(b) and (c))
- Resisting An Executive Officer (CPC §69)
PENALTIES FOR PENAL CODE 245(A)(1) – ASSAULT WITH A DEADLY WEAPON
Under California law, Penal Code 245(a)(1) PC Assault with a deadly weapon is considered a “wobbler” offense if a firearm was not used as the deadly weapon. A wobbler is a type of crime that the prosecutor has the discretion to charge as either a misdemeanor or a felony, depending on the circumstances and evidence.
PENALTIES FOR MISDEMEANOR CHARGES:
- Misdemeanor probation, which is a less severe form of supervision compared to parole.
- Up to one year in the county jail.
- A fine of up to a maximum of $1,000.
PENALTIES FOR FELONY CHARGES:
- Felony probation, which typically includes stricter conditions than misdemeanor probation.
- Imprisonment in a state prison for a maximum of up to four years.
- A fine that can reach a maximum of $10,000.
Please note that these penalties can change if the case involved the use of a firearm as the deadly weapon or if the assault was committed against a police officer or firefighter. In such situations, the consequences can be more severe. The legal outcomes can vary based on specific case details.
DOES “ASSAULT WITH A DEADLY WEAPON” COUNT AS A “STRIKE” IN CALIFORNIA?
Since this is considered a violent crime, a conviction can count as a strike against you according to California’s three strikes law.
In California, “Three Strikes” law can be applied if you’re convicted under California Penal Code Section 245(a)(1), which involves using a firearm during an Assault With A Deadly Weapon or causing serious bodily harm. When this happens, California Penal Code Section 1170(h) comes into play. If you’re unfortunate enough to receive a “third strike” on your record, you’ll face a minimum sentence of twenty-five years in a state prison.
DEFENSES FOR PENAL CODE 245(A)(1)
Defenses for Penal Code 245(a)(1) California, which covers Assault With A Deadly Weapon (ADW), can vary depending on the specific circumstances of the case. Here are some common defenses that may be applicable:
- Self-Defense: Non-U.S. citizens in the United States on temporary visas, such as work visas or student visas, may face visa revocation or denial of future visa applications if convicted of assault with a deadly weapon.
- No Deadly Weapon: If the object or instrument used in the alleged assault does not meet the legal definition of a deadly weapon, this could be a defense. It’s crucial to establish that the item lacked the capacity to cause great bodily harm or death.
- No Willful Act: If it can be shown that you did not willfully or intentionally engage in conduct that would lead to ADW, this can be a defense. For example, if your actions were accidental or mistaken, it may be argued that there was no criminal intent.
- False Accusations: If you can provide evidence or testimony suggesting that the accusations against you are false, fabricated, or based on mistaken identity, it can be a valid defense.
- Mental Incapacity: If you were suffering from a mental disorder or condition at the time of the incident that prevented you from forming the necessary intent for ADW, this may be a defense.
Convictions for certain crimes, including assault with a deadly weapon, can have immigration consequences for non-U.S. citizens, including permanent residents (green card holders) and visa holders. Here are some potential immigration consequences:
- Deportation (Removal):A conviction for assault with a deadly weapon may be considered a “crime of moral turpitude” or an “aggravated felony” under immigration law. Convictions for such crimes can lead to deportation or removal proceedings.
- Inadmissibility: A conviction for assault with a deadly weapon can make a non-U.S. citizen inadmissible to the United States, meaning they may not be allowed to enter the country or obtain certain visas or immigration benefits in the future.
- Visa Status: Non-U.S. citizens in the United States on temporary visas, such as work visas or student visas, may face visa revocation or denial of future visa applications if convicted of assault with a deadly weapon.
- Loss of Green Card: Permanent residents (green card holders) who are convicted of certain crimes may lose their status and be subject to deportation.
- Challenges to Relief: Convictions for certain crimes can make it more difficult to obtain various forms of relief from removal, such as asylum, cancellation of removal, or adjustment of status.
CAN I GET MY CONVICTION EXPUNGED?
If you have been convicted of Penal Code 245(a)(1) PC, which is “Assault with a Deadly Weapon,” you may be eligible to have your conviction expunged under certain conditions. This is possible if you have successfully completed either probation or a jail term, whichever was part of your sentence. Even if you violated probation at some point, a judge might still grant expungement of your criminal record.
Under Penal Code 1203.4 PC, an expungement essentially releases you from most of the penalties and disabilities that arise from the conviction. This means that, in the eyes of the law, your conviction will be set aside, and you will no longer be considered “guilty” of the offense.
However, please note that an expungement does not erase your criminal record entirely, and some agencies may still have access to the conviction, such as law enforcement agencies and certain employers.
CRIMINAL DEFENSE FOR ASSAULT WITH A DEADLY WEAPON CASES
Experienced California criminal defense lawyer, Cyrus Tabibnia has seen plenty of these cases, and knows the best legal defenses to deploy to get charges dropped or reduced. If you have inquiries regarding Penal Code 245(a)(1) PC concerning assault with a deadly weapon, or if you wish to have a confidential conversation about your case, feel free to get in touch with Tabibnia Law Firm. Our California based gun crime defense attorney Cyrus Tabibnia is here to help. Cyrus is well-versed in employing various strategies to contest charges related to assault with a deadly weapon. Don’t hesitate to reach out –he is here to assist you.
To learn more about what our firm can do for you, please call +1 866-713-2159 for a comprehensive consultation.