PC 245(a)(1) – Assault with Deadly Weapon
(a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm.
California Penal Code 245(a)(1) Assault with a Deadly Weapon is a serious crime, and can be charged as a California misdemeanor or felony. The prosecutor will make a decision to file a PC 245(a)(1) charge as a misdemeanor or felony based upon the type of weapon used, whether the alleged victim was injured, and the seriousness of that injury. The criminal defense attorneys at the Law Offices of Natalio Pereira are very experienced in defending against PC 245(a)(1) charges here in Orange County.
Let’s take a look at some common questions our clients have about PC 245(a)(1) Assault with a Deadly Weapon, or “ADW” for short.
Elements of the Crime – PC 245(a)(1) ADW
To be convicted of PC 245(a)(1), the prosecutor must prove that a defendant:
Assaulted someone, and
The assault was committed using a deadly weapon or other means of force likely to cause great bodily injury.
What is an “assault”?
An “assault” is defined under Penal Code 240, the most basic California law for assault. Take a look at our page for PC 240 Assault.
What is a “deadly weapon”?
For most of us, guns and knives come to mind first. But, a deadly weapon can be any object. Rocks, pens, baseball bats, any item we find in our daily lives which can be picked up and used to attack someone can be a “deadly weapon” for the purposes of PC 245(a)(1).
I have been accused of PC 245(a)(1), but I just used my hands and feet! Can I be convicted of PC 245(a)(1) Assault with a Deadly Weapon?
Yes, depending on the manner in which your body parts were used as weapons. If body parts are used to assault someone, in a manner that is likely to cause great bodily injury, then those body parts can be classified as “deadly weapons” for purposes of the statute.
For example, if you kick somebody one time, that might be an assault under PC 240. If you kick and punch someone for several minutes on end, to the point where they are beaten to the ground or unconscious, the charge would likely be a more serious PC 245(a)(1) Assault with a Deadly Weapon.
What is “great bodily injury”?
In California, there is no list of injuries that qualify as “great bodily injury”. Generally, those injuries will cause pain, and require medical care. Severe cuts or bruising, gunshot wounds, broken bones, and dog bites would all qualify as “great bodily injuries”.
However, remember that we are dealing with assault here, not battery. No actual injury is required, merely the capability (“present ability”) to injure. This leaves a lot to interpretation. You need an experienced criminal defense attorney familiar with Orange County courts and prosecutors to present the facts so that interpretation of the case is in your favor!
How can the criminal defense attorneys from the Law Offices of Natalio Pereira fight my PC 245(a)(1) Assault with a Deadly Weapon charge?
Our experienced criminal defense attorneys have several ways to fight a PC 245(a)(1) ADW charge in our Orange County courts. Some of the ways we fight your PC 245(a)(1) ADW charges are:
Inability to commit a violent injury. Assault with a Deadly Weapon requires intent and a present ability to commit a great bodily injury to be convicted. If you threaten to shoot someone and the gun is unloaded, it would not be possible to shoot that person at the time the threat is made. The criminal defense attorneys from the Law Offices of Natalio Pereira can investigate the facts of your case, and show the prosecutor that it would have been impossible to cause “great bodily injury” to the alleged victim.
Self-Defense/Defense of Others. If you reasonably believe that you or someone else is about to be seriously harmed by another, you can use means of defending yourself or someone else. If an armed robber breaks into your home and you point a gun at the robber, threatening to shoot him if he does not drop his weapon, that would be self-defense and you would not be convicted of PC 245(a)(1) ADW.
False accusations. Simply put, you were wrongfully accused. PC 245(a)(1) is a serious crime, and the criminal defense attorneys from the Law Offices of Natalio Pereira have had great success getting PC 245(a)(1) charges dismissed when there are no witnesses available to testify in corroboration of the alleged victim’s story.
Lack of intent. PC 245(a)(1), and any other assault charge, requires that the defendant have acted willfully. If you swing a baseball bat and accidentally hit someone, or swerve your car to avoid an object and not realize that you nearly hit someone, there is not intent to cause a great bodily injury and thus no conviction for PC 245(a)(1) ADW.
What sort of penalties am I facing if I am convicted of PC 245(a)(1) Assault with a Deadly Weapon?
Remember, PC 245(a)(1) is a “wobbler”, so it can be charged as a misdemeanor or a felony. Also, there are enhanced misdemeanor penalties for using a firearm (any firearm), and there are enhanced felony penalties for using particular types of firearms such as an automatic weapon, an “assault weapon”, or a .50 BMG rifle. If you face enhanced charges, contact the criminal defense attorneys at the Law Offices of Natalio Pereira for more information.
If you are convicted of misdemeanor PC 245(a)(1), you face the following penalties:
California misdemeanor probation;
Up to 1 year in county jail;
Up to $10,000 in fines;
Victim restitution costs (if applicable);
Confiscation of the weapon (if you own it);
Possibly community service and/or successful completion of an Anger Management course.
If you used a firearm, a misdemeanor PC 245(a)(1) charge will carry a mandatory minimum 6-month jail sentence.
If you are convicted of felony PC 245(a)(1), you face the following penalties:
2-4 years in a California state prison;
Up to $10,000 in fines;
Victim restitution costs (if applicable);
A “strike” on your record under California’s 3 Strikes Law Hotlink;
Confiscation of the weapon (if you own it).