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San Diego Assault With a Deadly Weapon Attorney

Assault with a deadly weapon is an aggravated of assault and it is considered a wobbler offense in California, which means that the crime could be charged in Court as a misdemeanor or a felony.

For someone being convicted of Assault with deadly weapon, under California Penal Code §245 (a), the prosecution must prove the following requirements:

  • The defendant's conduct must have been acted in a circumstance that would result in force upon another person.
  • The conduct was acted with a deadly weapon, or would most likely produce a great bodily injury.
  • The action was made with wilful intention
  • The defendant was aware that the conduct would likely cause offensive or harm of another person.
  • The use of a deadly weapon was would likely to harm another person.

For a better understanding, it will be explained all the requirements for this type of charge.

Uses of force

The uses of force is the same meaning as a simple assault, so long as there is an offensive or harmful touching, which is caused in an aggressive way, it could be considered an use of force. It is important to state that even if there is no intention of the defendant to cause injury, the prosecution might still charge with assault with deadly weapon.

Example (1): James, a 15 years old boy, got into a playground fight with Kevin and threw a rock at him. The rock did not get close to Kevin and did not cause any harm.

However, the prosecution could considered assault with deadly weapon if it is enough evidence to convince the jury that a rock could be a deadly weapon.

Deadly Weapon

California Courts already established that a deadly weapon object is an instrument that could be used that is likely to cause serious harm to another. The questions raised more often from clients is: what is considered a deadly weapon, beside firearms and obvious objects using inherently to cause deadly weapons?

The main issue to consider an instrument a deadly weapon is whether the object is likely to produce death or great bodily injury. So, the element that is going to define whether an instrument is a deadly weapon or not, it is the manner that specific object was used.1

For example:
A defendant used a pencil to threat and stab the victim. And courts considered any type of hard, sharp, pointy thing that could be use to threaten someone a deadly weapon instrument.2

To determine whether an object is inherently deadly the evidence must consider the following factors:

  • The nature of the weapon
  • The manner of its use
  • The location of the injuries inflicted
  • The extent of these injuries.

This means, it would be considered deadly weapon a potentially dangerous objects, such guns, knifes, screwdriver, a bottle, a pencil, a car, rock, unloaded gun or even a dog. Thus, it is considered a deadly weapon an object or instrument that could cause great bodily harm to another person. Further, all objects that could be used in a way to cause harm to the body, also including any part of the body, for instance, feet and hands could be included under this category.

Great Bodily Harm

Great bodily harm is characterized as a substantial physical harm or injury of another person. The standard for substantial physical harm is established when the injury is greater than a minor harm. This definition is subjective and vague, leaving different types of interpretation to a jury trial. However, it is usually understandable to jurors.

Willful conduct

A willful as mentioned in the section of simple assault, is when a person is acting in a willful way, and the intention is to do something on purpose, however, there is no intent to hurt someone, gain advantage or break the law.

For example: Samantha and Joseph are married and they are having a fight inside their car. Samantha furious decided to get out and walk home. Joseph followed her with the car in a way that leads the witnesses to believe that he is trying to hit Samantha with the car.

In this case, even though Joseph did not intent to hit Samantha with the car, the could be charged of assault with deadly weapon because of how he followed her.

Awareness of the conduct

Another element that prosecution must prove in court is the awareness requirement. This element is satisfied when the defendant was aware that the act could lead to the application of force. Thus, the awareness element is hard to prove, since it is difficult to show in court the intention of the defendant's act.

For example:

Kelly and Patrick are having an argument in the middle of the street. Kelly pulled out a gun and started to shoot the ground to intimidate Patrick.

In this example, Kelly did not intent to hurt or cause a great bodily injury to Patrick, however, Kelly was aware that his action with a deadly weapon could cause a harm and injury Patrick. Thus, Kelly could be charged with assault with deadly weapon.


Assault is considered a wobbler in California, meaning that the offense can be charged as either a misdemeanor or a felony depending on the specifics of the case and the defendant’s criminal history.  When a prosecutor is deciding how to charge the case, he or she takes the following into account.

  • The type of weapon used.
  • Whether or not the alleged victim suffered bodily injury.
  • The severity of the injury.
  • Who the alleged victim was (it may be charged as a felony if the victim is a protected person such as a police officer).

If the prosecutor decides it is a misdemeanor case, and the deadly weapon was not a firearm, penalties may include misdemeanor probation, up to one (1) year in jail, and/or a maximum fine of one thousand dollars ($1,000).

If the prosecutor decides it is a felony case, and the deadly weapon was not a firearm, penalties may include felony probation, up to four (4) years in prison, and a fine of up to ten thousand dollars ($10,000).

Assault with a Deadly Weapon – With a Firearm

An assault with a deadly weapon charge carries an additional penalty of a minimum of six (6) months in county jail if the weapon used was a firearm.  If the weapon used was a semi-automatic firearm, it will always be considered a felony and possible prison time increases to three (3), six (6), or nine (9) years.

Assault with a deadly weapon is always charged as a felony when the weapon involved includes machine guns, assault weapons, or .50 BMG rifles.  When one of those weapons is involved, the potential prison time increases to four (4), eight (8), or twelve (12) years.

Assault with a Deadly Weapon – On a Law Enforcement Official or a Firefighter

In California, penalties for assault with a deadly weapon increase if the alleged victim is a police officer or a firefighter who is engaged in his/her duties.  The defendant must have known that the alleged victim was an on-duty police officer or firefighter in order for the harsher penalties to be applied.  When this is the case, assault with a deadly weapon is always considered a felony.  If there was no firearm involved, the penalty is time in state prison of three (3), four (4), or five (5) years.  If there was a firearm involved, the penalty depends on the type of firearm used.

  • Ordinary firearm: four (4), six (6), or eight (8) years
  • Semi-automatic firearm: five (5), seven (7), or nine (9) years
  • Machine gun, assault weapon, or .50 BMG rifle: six (6), nine (9), or twelve (12) years

Assault with a Deadly Weapon – California’s “Three Strikes” Law

If you receive a “strike” on your record and are then charged with any other felony, you will receive twice the regular sentence for that felony.  If you get three “strikes,” you may face 25 years to life in California state prison.  Assault with a deadly weapon counts as a strike under California’s “Three Strikes” Law if one of the following is true.

  1. The defendant caused great bodily injury
  2. The defendant assaulted a police officer or firefighter
  3. The defendant used a firearm while committing the assault

Assault with deadly weapon - with a firearm

The California rules treat an assault with a firearm differently than an assault with deadly weapon, it will be include an additional penalty of a minimum 6 months of imprisonment. However, if the crime was committed with a semi-automatic firearm, the crime will be considered a felony, in which the imprisonment could be increased from three (3) to nine (9) years.

This type of assault will always be charged as a felony if the conduct was made with machine guns, assault weapons, or 50 BMG rifles, in this case an additional charge could be increased from four (4) to twelve (12) years of imprisonment.

Assault with a deadly weapon - on a law enforcement official or a firefighter

Under California Law, there is an aggravated penalty if the victim is a government enforcement or firefighter, in which is performing his duty while the crime occurred. This special rules is applied when the defendant knows or must have known that the victim was on-duty. Thus, this type of crime is always considered a felony in California. However, when the defendant did not use a firearm while committing the crime, the punishment is going to vary from three (3) to five (5) years in a state county jail depending on each case and factors.

However, If the crime was committed with a firearm, the following will be applied, it is going to vary depending on the type of firearm used. For ordinary firearm the penalty is going to be established from four (4) to eight (8) years. But if the crime was committed with semi-automatic firearm, the punishment is going to be established from five (5) to nine (9) years of imprisonment. And for aggravated crimes committed with machine gun, assault weapon, or 50 BMG rifle, the penalty could be established from six (6) to twelve (12) years in a state county jail.

Assault with Deadly Weapon - California's "Three Strikes" Law

In California there is an aggravate rule that it is called three strikes law, in which the judge has discretion to determine to increase or diminish the conviction depending on the defendant's record. For instance, if a defendant receive a "strike" on his record, by that is convicted with a felony and then after a while he receives another sentence with felony, the judge could give twice of the regular sentence in the conviction. And if the defendant gets three "strikes", he or she might give a 25 years of imprisonment in a California State prison. To determine if the assault counts as a strike in California, the following factors must be prove:

  • The defendant caused a great bodily injury to the victim; and
  • The victim was a protected person, as a police officer or firefighter; and
  • The defendant used a firearm to commit the crime.

Assault vs. Battery in California

People often use the phrase, “assault and battery,” which might suggest that they are the same thing; however, it is important to understand the difference between the two. In California, assault (including assault with a deadly weapon) involves an action that might result in physical harm or unwanted contact, while battery involves an actual infliction of force against someone else. One way to think of the difference between the two is that assault is like attempted battery, while battery is like a completed assault.


 The defendant willfully acted in a way that would likely result in force upon another person.

The defendant had the awareness to understand the action would likely cause harm to another person.

The defendant had the means to apply force.

 Misdemeanor Probation

Up to 6 months in county jail 

A fine of up to $1,000 dollars

Community Service

Completion of Batterer’s Program



Defense of others

Lack of means to inflict force

No intention of using force

Wrongfully accused


 The defendant willfully used force against another person.

The defendant made physical contact with the other person.

 Misdemeanor probation

A fine of up to $2,000 dollars

Up to 6 months in county jail

Community Service

Completion of Batterer’s Program



Defense of others


It was an accident


The defendant willfully assaulted another person using a deadly weapon

Or the defendant used another means of force to cause great bodily injury

Misdemeanor probation 

1 year in county jail

A fine of up to $10,000

Restitution to the victim

Community Service

Anger management courses

Confiscation of weapon(s)

Up to 4 years in California state prison

A fine of up to $10,000

Restitution to the victim

A strike on defendant’s record

Confiscation of weapon(s)


Defense of others


No Intention of using force

Actions did not cause great bodily injury

Legal Defenses that San Diego Criminal Attorney might build for you

In California Criminal Law, a person that committed an assault with deadly weapon could face hard punishment, since the crime is considered a felony, but it is going to vary case by case. However, San Diego Criminal Attorney can provide support and we can built the best legal defense as possible.
An assault with a deadly weapon is a felony crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a assault offense registered, it is likely that the employer won't hire someone with a felony background. If you were charged with assault with a deadly weapon or firearm, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and it can help you to build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful our staff to help you with your legal problems.

To contest the charges of assault with deadly weapon, San Diego Criminal Attorney would be able to use the following legal defenses: (1) the person did not use a weapon or means of force that would likely to cause injury to another person, (2) there was a self-defense action, (3) there was not intent to cause harm, (4) False accusation.

  • There was no uses of deadly weapon or means to inflict force that would likely to cause injury to the victim:

If you did not use a deadly weapon or did not use a inflict force to another person that would likely cause serious injury, or the instrument used does not have the ability to inflict danger to another person. Thus, there is a possible legal defenses to avoid the charges of assault with a deadly weapon, you should contact the San Diego Criminal Attorney for a consultation.

  • The conduct was in self-defense or third party defense:

The self-defense theory could be applied in assault with deadly weapon charges if the client reasonably believe that there was an imminent danger of suffering body injury or has being touched unlawfully. And there is a reasonable believe that an immediate use of force was necessary to avoid the dangers. And the uses of force was reasonable necessary to defend against the danger. If there was the case that you used a deadly weapon, to protect yourself, you should immediately contact San Diego Criminal Attorney. A self-defense strategy defense could be used against this type of charges, if there was the scenario. CALCRIM 3470

  • There was no required intent or willful conduct.

Someone times the actions of the defendant were accidental or misunderstanding by the victim. Under this type of defense, it is essential that the defense attorney and the prosecution get the entire facts of the accident.
If you have been charged with assault with deadly weapon, make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.

  • Wrongfully accused

Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact an attorney promptly.

Related Offenses 


Simple Assault (PC 240) is the same as assault with a deadly weapon except that there is no requirement that a weapon is involved or that a specific amount of force was used.

Battery/Battery Causing Serious Bodily Injury

Battery (PC 242) is different than assault in that it requires the physical use of force against someone else. However, you can be guilty of battery even if you did not actually harm someone else, you only needed to have made physical contact in a harmful manner. If you do cause serious injury, you may be charged with battery causing serious injury (PC 242(d))

Brandishing a Weapon or Firearm

Brandishing a weapon or firearm (PC 417) refers to drawing, displaying, or using a firearm or other dangerous weapon in an offensive manner.