Posted on April 4, 2016

Assault with a Deadly Weapon Defenses & Punishment – California PC 245(a)(1)

In California, assault with a deadly weapon (“ADW”) is defined under Penal Code 245(a)(1). Note that this charge requires the use of a deadly weapon other than a firearm. Contrary to popular belief, this crime does not require any physical contact with another. Instead, you harbored then intent to commit a harmful or offensive touch to another while using a weapon.

Assault with a deadly weapon is a wobbler offense which means the prosecutor holds discretion when electing to charge you with either a felony or misdemeanor. A conviction for this offense will consequently restrict your ability to own a firearm and adversely affect your ability to obtain or maintain a state issued license.

Just because you’ve been arrested for this crime, do not assume you’re guilty of this charge. Contact an Assault Defense Lawyer. The following article will address 11 things you should know about the charges of assault with a deadly weapon.

1. When Should I Retain a Lawyer?

When faced with allegations of assaulting another person with a deadly weapon, it is in your best interest to contact an Assault Defense Attorney at the cases earliest juncture. Importantly, when you’re arrested for a crime, the police will take witness statements and draft a police report. Thereafter, law enforcement forwards their report to the prosecuting agency for review to determine whether formal charges should be filed against you. When appropriate, Mr. Rogers will submit a mitigation package to the filing prosecutor consisting of additional evidence, additional witness statements, photographs, character letters, and perhaps your side of the story in an effort to have the case rejected completely and avoid ever having to appear in court. This early approach ensures the filing prosecutor considers all the evidence in the case prior to filing charge.

2. Defense Investigation

Never assume police officers will conduct a thorough investigation of your case. Often times, law enforcement negligently or intentionally does not collect pertinent evidence in your favor but rather documents evidence only indicating your guilt. The Law Offices of John D. Rogers has access to numerous defense investigators to conduct a thorough, comprehensive investigation concerning the validity of the government’s case. A defense investigation may include running criminal background checks on all the prosecutor’s witnesses including your accuser, obtaining video surveillance footage from business or the neighborhood, questioning or searching for witnesses, photographing the scene, photographing your injuries, obtaining text messages, facebook messages, and all communication between you and your accuser. Because assault with a deadly weapon allegation is extremely serious, nothing less than a full defense investigation must be conducted on your behalf.

3. What are the Elements to Assault with a Deadly Weapon?

In order to prove you’re guilty of Assault with a Deadly Weapon under PC § 245(a)(1), the government must prove each of the following elements beyond a reasonable doubt:

1. You did an act with a deadly weapon that would result in the application of force to another

2. You acted willfully

3. Your action reasonably placed someone in apprehension of imminent force

4. You had the present ability to apply force to the other

5. You were not acting in self-defense

4. What are the Defenses to Assault with a Deadly Weapon?

• You were mistakenly identified by the accuser. For instance, poor lighting, cross-racial identification, or false memory inducements can play a pivotal role in infringing upon the accusers ability to recall or identify the assailant.

• You were acting in self-defense to prevent bodily harm or you were reasonably acting in self-defense for another person.

• The object or instrument you used was not capable of causing great bodily harm.

• You’re being falsely accused by the alleged victim for an ulterior motive.

• You did not act with the requisite intent to commit assault but instead you conduct was an accident.

• Your statements to police were illegally obtained in violation of your Miranda Rights under the United States Constitution.

• The physical evidence obtained against you resulted from an illegal search and/or seizure by police in violation of your Fourth Amendment right under the United States Constitution.

5. What is the Punishment for Assault with a Deadly Weapon?

As noted earlier, assault with a deadly weapon under PC § 245(a)(1) can be charged as either a felony or misdemeanor. A felony conviction for this offense carries a prison sentence of 2, 3, or 4 years. However, a misdemeanor conviction carries up to 1 year in the county jail. You also face a fine amount not exceeding $10,000.

In addition, the court will normally place you on probation for a period of three years, impose anger management counseling, and community service. A conviction for this offense also carries a 10 year firearm restriction. Other consequences include temporary loss of your search & seizure right, adverse immigration consequences, and suspension of your state issued license.

6. What is an Example of a Deadly Weapon?

• Baseball Bat
• Knife / Stabbing Instrument
• Brass Knuckles
• Baton
• Rings
• Roll of Quarters
• Bottles

7. Police Communication

If you’ve been detained or are under investigation for assaulting another with a deadly weapon, generally law enforcement will reach out to you to get “your side of the story.” It’s in your best interest not to give a statement and contact an attorney immediately. Nothing you say will cause the police to stop investigating you as a person of interest. Additionally, the more you speak with police, the more likely you’ll give incriminating information thereby building a better case against you. If you give a statement to police, the more you limit your options to defeat the charges later in court.

8. Can I Reduce my Felony to a Misdemeanor?

As noted above, assault with a deadly weapon is a wobbler offense which means you can be convicted under this charge as a felony or misdemeanor. Fortunately, if you were convicted of this offense as a felony, then you may be eligible to reduce your conviction to a misdemeanor after successful completion of probation under PC § 17(b).

If the court grants your petition for reduction then the conviction is a misdemeanor “for all purposes.” Prior to ruling on your reduction motion, the judge will consider the following factors:

• Your prior criminal history

• Whether you suffered any probation violations

• Whether you’re likely to re-offend

• The reason(s) you’re seeking reduction – i.e., military, employment, etc.

9. Assault with a Deadly Weapon Expungement

If you’ve been convicted of PC § 245(a)(1), then you may be eligible to expunge your conviction under PC § 1203.4. Certain conditions apply to obtain this remedy however. For example, you must be fully completed with probation, obeyed all orders from the court, and paid all your fines and fees. Upon proper petition, the court will withdrawal its finding of guilt, enter a not guilty plea, and dismiss the case under the 1203.4 statute. From that point forward, you will be released from all penalties and disabilities resulting from your conviction. This remedy has a number of benefits in the private employment sector. If you suffer from a criminal conviction for assault with a deadly weapon, contact the Law Offices of John D. Rogers to discuss an expungement.

10. What are Examples of Assault with a Deadly Weapon?

Dan was walking down the street in downtown. Dan keeps a firearm around his waistband for protection. However, he does not keep the firearm loaded. While walking home he is approached by someone begins yelling threatening remarks. Dan grabs his firearm and points it at the other person. The other person runs away. The sheriff’s department subsequently arrive and arrest Dan for assault with a firearm / deadly weapon. In this case, Dan would not be guilty under either assault theory since he lacked the present ability to apply force to the other man. Moreover, Dan’s gun was not loaded thus he could not shoot a bullet.

Dan was hosting a party at his residence. While in his back yard, he finished a beer can with some colleagues. Knowing that on the other side of his fence was an open dumpster, Dan threw the empty can over his fence. Little did he know, there were three uniformed police officer on the other side of the fence investigating a crime. Minutes later, police arrive at Dan’s home and arrest him for assault with a deadly weapon. Here, Dan would not be guilty of assault with a deadly weapon since he lacked the requisite intent to commit an assault. Indeed, he threw the beer can believing it would land in the dumpster and not in the direct vicinity of a police officer. Furthermore, the prosecution may have a challenging time proving that an empty beer can is capable of producing great bodily harm.

11. Free Criminal Defense Consultation

If you’ve been arrested, charged, or are under investigation for assault with a deadly weapon under PC § 245(a)(1), contact Assault Defense Attorney John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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