Assault with a deadly weapon (ADW) is a form of aggravated assault and can result in a state prison sentence. You should never take charges for assault with a deadly weapon lightly.  Instead, you should talk to a San Diego Criminal Attorney for defense services. Usually, with the right resources, including an attorney, you can successfully fight the charges against you. Understanding assault with a deadly weapon requires that you understand California’s assault laws upon which the offense is based.

What Is Assault

California PC 240 defines assault as an unlawful attempt to commit a violent injury on another person. In addition, you have to meet the following elements to be guilty of assault

  • You committed an act that might have led to the use of violence
  • You acted willfully
  • You knew or should have known that the act would lead the victim to believe that you would use force on him or her
  • You had the present ability to inflict force on the victim

Assault is usually charged whether touching happened or not. You might be guilty of assault even if you touched the person indirectly through his or her clothing or with an object. In addition, you do not have to cause actual injury or harm to the person to be guilty of assault.

Overview of Assault with a Deadly Weapon

California PC 245(a) (1) prohibits the use of a deadly weapon or force likely to cause great bodily injury to assault another person. The elements of the offense include:

  • Committing an offense which is likely to result in the use of force on another person
  • You committed the act using a deadly weapon or force that could have caused great bodily injury
  • You committed the act willfully
  • You were aware that the act would lead a reasonable person to believe that you would apply force on him or her
  • You had the present ability to inflict force with a deadly weapon or with force likely to cause great bodily injury

California laws expound on the various elements of the elements as follows:

  • The application of force refers to touching that is harmful, offensive, or rude. You are guilty of applying force with a deadly weapon even if the victim did not suffer harm or you touched him or her indirectly using an object.
  • A deadly weapon is any object, instrument, or weapon, which is capable of causing great bodily injury or death depending on the manner of use. For example, if you use a pencil to stab someone, then it qualifies as a deadly weapon. Deadly weapons include guns, knives, bottles, pencils, cars, and dogs that can be commanded to attack people. Body parts are not considered deadly weapons. However, if you use sufficient force that could produce great bodily injury, then they become deadly weapons.
  • Acting willfully means that you knowingly or purposefully committed the act regardless of your intention to break the law, hurt another person, or gain any advantage. The court usually proves intent or willfulness by showing that you know that a certain result will occur given the current series of actions or you desire it to happen. You also display willfulness if you had the earlier plan to commit the assault.
  • You knew or should have known that the act could have led to the use of force. For example, if you threaten someone using a loaded gun, there is a possibility of accidentally firing and causing injury to another person.
  • Great bodily injury or harm refers to serious physical harm to the victim. It could include a prolonged loss of consciousness, wounds, or lacerations that require suturing, loss or protraction of a body organ, serious disfigurement of severe pain from the injury.

The law requires the prosecution to prove each element beyond a reasonable doubt. In case you are facing charges for assault with a deadly weapon, hiring a lawyer during the early stages of the criminal proceedings helps in building a strong defense to fight the charges.


Assault with a deadly weapon is a wobbler in California. The court decides whether to convict the offense as a misdemeanor or a felony depending on:

  • The circumstances of the case
  • Your criminal background
  • Whether the victim is a peace officer
  • The type of weapon you used
  • The nature and extent of the injury suffered by the victim

The penalties include:

Assault with a deadly weapon that is not a firearm is charged as either a misdemeanor or a felony. A misdemeanor conviction is punished by summary probation or a maximum of one year in county jail and a fine of up to $1000. For a felony conviction, the penalties include 2, 3, or 4 years in state prison or formal probation and fines not exceeding $10,000.

Assault with a deadly weapon that is a firearm depends on the type of firearm.  If the offense involves an ordinary firearm, the offense is charged as a wobbler. The penalties for a misdemeanor include misdemeanor probation, at least six months in county jail and a fine not exceeding $1000. The penalties for a felony offense include up to four years in state prison, formal probation and a fine, not over $10,000.

If the offense involved the use of a semiautomatic firearm, the offense is always a felony with possible sentencing of three, six, or nine years in state prison. The use of machine guns, assault weapons, and .50 BMG rifles to commit assault is also a felony with a potential state prison term of four, eight, or twelve years.

Assault with a deadly weapon on a peace officer is always a felony. The court has to determine that the victim was a peace officer, and the defendant should have known that he or she was a peace officer. The sentence will depend on the type of deadly weapon used.

If the defendant did not use a firearm, then he or she faces three, four, or five years in state prison. If the defendant used an ordinary firearm, the sentence is four, six, or eight years. For assault involving a semi-automatic firearm, the sentence increases to five, seven, or nine years. Where the defendant used a machine gun, .50 BMG rifle or an assault weapon, then the sentence is six, nine, or twelve years in state prison.

In addition to the penalties for the specific offense, assault with a deadly weapon is a strike under the three strikes law if:

  • A person suffers a great bodily injury during the offense
  • You personally used a firearm when committing the offense
  • You committed the offense against a peace officer

A strike doubles your sentencing if the offense is convicted as a felony. Additional strikes on your record will lead to a state prison sentence of 25 years to life.

Legal Defenses

Assault with a deadly weapon is punished severely in California. Given that most offenses can be charged as a felony, the potential consequences can be very harsh. However, with the right legal defense team, you can successfully fight the charges against you.

The first step in defending yourself involves hiring a qualified attorney who has experience in handling cases similar to yours. Review the attorney’s record to determine whether he or she is the right fit.

You should also check whether he or she meets the bar requirements and is licensed to operate in California. If he or she meets these standards, has great customer service, and is affordable, then you can hire him or her. Never rush through the process - a good lawyer is always worth the hunt.

Now that you have secured a qualified lawyer, he or she will evaluate your case and the evidence against you to develop a defense strategy. Some of the defenses he or she might use include:

Defense of self or others

If you committed assault in your defense or defense of others, then you may not be guilty of the offense. The constitution allows you to defend yourself or another person using reasonable force if you reasonably believe that you or another person is in danger. You will have to prove the following when you use self-defense as a defense:

  • You reasonably believed that you or another person was in danger of sustaining great bodily injury or assault. The threat should be immediate and likely to cause harm. For example, if the victim was holding a knife against you, you have a reasonable belief that he or she might kill or harm you. In addition, you should have a reasonable belief that you were in danger of suffering harm. Courts use an objective standard to determine what a reasonable person would have done under the circumstances. This standard eliminates using self-defense for people with phobias or mental illnesses. However, if you have been the victim of domestic violence, and commit assault with a deadly weapon, the court could argue that you had a reasonable belief that you were in imminent danger based on experience.
  • You believed that the use of force was necessary
  • You used force that was not excessive under the circumstances

Other circumstances under which you may use self-defense include:

  • You were defending another person or property
  • You were defending yourself from a third party (for example, if a friend to a person who has been threatening you approaches you in a manner that causes you to reasonably believe you are in danger and you assault the person with a deadly weapon, then you can use self-defense)
  • You initiated a fight, but the other party escalated it to the use of deadly force or continued fighting even after you clearly indicated that you wished to stop fighting
  • The victim invaded your home unlawfully and forcibly

When using self-defense as a defense, the prosecution has the burden of proving that you were not acting in defense of yourself or another person. If the prosecution cannot prove this, then your case might be dismissed.

False accusations

False accusations lead to the unfair conviction of innocent persons. If you are the victim of a false accusation, hiring a defense attorney should be your first priority. You need legal help in proving your innocence before the jury.

False accusations arise from revenge, malice, greed, biased witnesses, prejudice or racial bias, and mistakes in identifying a person.

Your lawyer can prove false accusations by cross-examining witnesses to bring out inconsistencies in their accounts. He or she can also call upon witnesses who were there when the offense happened. In the case of mistaken identity, you can bring along an alibi explaining who was with you at the time the offense is said to have occurred.

You did not know the victim was a protected person

Assault with a deadly weapon on a peace officer is always a felony under California law. This means that the penalties are severe with the potential of several years in state prison. A peace officer includes a policeman, firefighter, or a law enforcement official.

To be charged with assaulting a police officer, you must have known or should have reasonably known that the person was a peace officer and was engaged in his or her official duties.

To defend against the charge, you could argue that:

  • The officer was not engaged in his or her official duties
  • The officer used excessive force which led you to defend yourself
  • The victim is not a peace officer
  • The peace officer did not have any identifying uniform, car or badge and did not identify him or herself as a peace officer
  • Police misconduct: an officer can accuse you of committing assault even when you did not. Lies in reporting or exaggerations of the event are examples of police misconduct that could result in an assault with a deadly weapon charge
  • Mistaken identity

You did not use a deadly weapon

For you to be convicted for assault with a deadly weapon, you must have used either a deadly weapon or enough force to cause great bodily injury. For example, if you threatened that, you would use a deadly weapon, but did not have one on your person; you cannot be guilty of assault with a deadly weapon.

You can also defend yourself by showing that you did not use force that could have caused great bodily injury. Measuring the amount of force to determine whether it could have caused great bodily injury is difficult and subjective. Your lawyer can use that as a chance to defend that the force you used was not excessive.

You did not act willfully

Sometimes, assault with a deadly weapon can happen due to an accident. In such a case, you do not have the intent to commit a crime. You can also show a lack of intent where the ‘victim' misinterpreted your actions. Your lawyer will ensure that you give your side of the story so that the jury can make an informed decision based on facts from both the plaintiff and the defendant.

You can also show a lack of intent is another person through threats or duress compels you to assault another person. When using duress as a defense, it is an admission that you committed the offense, but would not have committed it were it not for the force or pressure from another person.

Plea Bargain

Plea bargains are essential in cases of assault with a deadly weapon. The potential consequences are severe, and most attorneys and prosecutors prefer to settle the case through a plea deal to avoid the uncertainty and cost of a trial. In addition, it could mean a lesser sentence for the defendant.

Not all cases of plea bargains are ideal. However, they may be necessary, especially where you want to avoid trial, yet the evidence could be overwhelming. The prosecution can offer a plea deal if the evidence against the defendant is weak or some of the evidence is discredited or suppressed. When such happens, the case might not be so strong during the trial.

The prosecution can offer a plea bargain with one or more of the following options:

  • Reducing the charge to a misdemeanor offense
  • Removing additional charges
  • Reducing the sentence
  • The defendant pleads guilty to a set of charges in exchange for a reduced sentencing

The final decision lies on you to accept or refuse the plea deal. Your lawyer will provide you with the necessary information to ensure that you understand the offer and the alternatives. While he or she cannot predict how your case will proceed during the trial, he or she can provide examples of past cases that are similar to yours. Some of the reasons you may agree to a plea deal include:

  • To avoid a harsher sentence at trial
  • The trial could be expensive
  • To avoid incarceration

If a plea deal is successful, your lawyer can have the prosecution reduce charges. The prosecution will reduce the charge to simple assault if it cannot prove that you used a deadly weapon or enough force to cause great bodily injury. Simple assault is a less serious misdemeanor offense, which is punishable by a maximum of $1000 in fines and up to six months in county jail.

Your attorney can also convince the prosecution to reduce your charge to that of brandishing a weapon. Brandishing a weapon or firearm is a misdemeanor offense under PC 417, which prohibits brandishing a weapon in an angry, rude or threatening manner. The penalties for the offense are less severe than those of assault with a deadly weapon. They include a county jail term not exceeding six months or one year depending on the offense.

Another possible plea bargain offense is PC 17500, which prohibits the possession of a deadly weapon with the intent to commit an assault. It is a misdemeanor offense and a precursor to assault with a deadly weapon. The offense is a misdemeanor, which is punishable by a maximum of six months in county jail, a fine of up to $1000 and misdemeanor probation.

Consequences of A Conviction under PC 245 (A) (1)

In addition to incarceration and paying fines, other consequences of assault with a deadly weapon include:

  • Loss of your firearm rights if the deadly weapon was a firearm
  • License suspension if you used a car to commit the offense
  • Restitution to the victim of the offense
  • Attendance of anger management classes
  • In some cases, especially felony convictions, you may be unable to have your record expunged
  • A permanent strike on your criminal record
  • Sentence enhancements if the assault happened during the commission of a serious or violent felony, or if you assaulted an officer in relation to enabling or fulfilling the purpose of gang-related activities

Related Offenses

In addition to assault with a deadly weapon, the prosecution may bring additional and related charges such as:

  1. Failing to control a dangerous animal: PC 399 requires that owners control any dangerous animals that they own. If your dog attracts a person and causes them injury, then you could be charged with assault with a deadly weapon and failing to control a deadly animal. The offense is charged as a misdemeanor if the person is injured and as a felony if the victim dies.
  2. Throwing a dangerous object at a vehicle or its occupants (VC 23110) which is a felony under California law. It is charged when you throw dangerous objects at a vehicle with the intention to cause great bodily injury. You are guilty of the offense regardless of whether you could cause injury. The offense can be charged separately or together with assault with a deadly weapon.

Find a San Diego Criminal Lawyer Near Me

If you are facing charges for assault with a deadly weapon, hire a lawyer as soon as possible. Ensure that your lawyer has dealt with similar cases in the past and has enough experience and expertise to handle your case. Having a lawyer handle your defense increases the chances of having a stronger defense. In addition, defense lawyers are aware of the laws associated with various offenses and can apply them to your benefit. If you or your loved one is facing charges for assault with a deadly weapon, contact the San Diego Criminal Attorney for representation. We have more than 25 years’ experience in handling criminal cases at the state and federal levels. We have also established relationships with other lawyers, judges, and district attorneys, which we leverage to get the best outcome for our clients. Call us at 619-880-5474 for a free non-obligatory consultation.