California PC 245(a)(1) | Assault with a Deadly Weapon

If you assault someone while using a deadly weapon, then the government will likely charge you with a violation of California Penal Code 245(a)(1).[1]  A deadly weapon includes guns, bats, knives, beer bottle, brass knuckles, vehicle, or any instrument or object that may not be deadly per se but capable of inflicting great bodily harm.  Physical contact with your hands or feet will not suffice to warrant this charge.

Law enforcement will always make a felony arrest under this charge, however the government makes the ultimate decision about whether to formally charge you with a felony or misdemeanor.  Hence, although you were arrested for a felony, you may only have misdemeanor charges filed against you in court.  But it’s important to note that if you’re formally charged with a misdemeanor violation, the prosecution may, at any time, amend the charge sheet and charge you with a felony.

Claims of “I never actually touched the other person” will not suffice as a viable defense to this charge because it does not require any physical contact.  For instance, holding a knife while pointing it at someone else may suffice to file charges against you even though you never swung the knife at the other person.  The government need only prove that you harbored the present ability and requisite intent to commit harmful contact against someone else.

Contact an Assault Defense Attorney, our office represents those facing criminal charges in Orange County, Los Angeles, San Bernardino, Ventura, Riverside, San Bernardino, and San Diego counties.

LEGAL DEFINITION FOR PC 245(a)(1)

PC 245(a)(1) also known as “ADW” penalizes the commission of a simple assault “with a deadly weapon or instrument other than a firearm by any means of force likely to produce great bodily injury.”  A deadly weapon can be any instrument, weapon, or objected used so as to be capable of producing, and likely to produce, death or great bodily injury.  When making the determination of whether an object is not inherently deadly or dangerous was used in the requisite manner, the nature of the weapon, the manner of its use, and any other relevant facts will be considered.  As noted above, actual physical contact is not required for this offense, however if injuries result, the extent of such injuries and their location are relevant for the objective consideration.[2]

WHAT IS THE GOVERNMENT REQUIRED TO PROVE?

CALCRIM 875[3] establishes the elements the prosecutor must prove with sufficient evidence beyond a reasonable doubt in order for you to be found guilty of assault with a deadly weapon:

  1. An act was committed that would directly and probably result in the application of force;
  1. The force was likely to produce great bodily harm;
  1. You acted willfully;
  1. A reasonable person would believe that the act would directly and probably result in the application of force;
  1. You had the present ability to apply force to another;
  1. You did not act in self-defense[4] or in the defense of another.

PUNISHMENT & SENTENCING

pc-245a1-punishment

  • A misdemeanor conviction carries up to 1 year in the county jail.
  • A felony conviction carries up to 4 years in state prison.
  • A conviction for this offense carries a fine not exceeding $10,000.
  • If probation is granted, the judge will impose a probation period of 3 to 5 years.
  • You may also be required to complete anger management and/or community service.
  • The court will impose a protective order against you contacting your accuser.
  • Restitution will be ordered if your accuser suffered any financial loss.[5]
  • You may lose your ability to obtain state licensing or maintain your professional license.
  • A felony conviction permanently deprives you from using, possessing, or owning a firearm. A misdemeanor conviction mandates a 10-year firearm restriction.

WHAT ARE THE LEGAL DEFENSES?

Defense: No Weapon Involved

The government must prove that you used a deadly weapon to carry out the assault upon another.  Therefore, if you punch, kick, or elbow someone in the face causing great bodily injury, it will not suffice under this charge and the charge will be dismissed.[6]

Defense: Lack of Intent

One of the requisite elements to this offense is that you harbored the intent to commit great bodily harm against another.  ADW is a general intent crime which means the government does not need to prove you had the “specific intent” to cause force to another but only that you generally intended to commit the act itself.  Therefore, if the act was done on accident, misfortune, or was not the product of your own free will then you did not harbor the requisite intent to commit the acts.

Defense: Miranda Violation

Contrary to popular belief, law enforcement need not always admonish you of your Miranda Rights.[7]  Your right is only triggered when you are 1) in custody – i.e., a reasonable person would not feel free to leave; and 2) you were subjected to interrogation by law enforcement.  However, in the event you’re subject to these requirements, then your attorney may file a motion to suppress your statements.  It may be your incriminating statements that the government is relying upon to prove your guilt.  For instance, you admitted your intent to cause injury upon another, or perhaps you admitted to being the culprit when your accuser could not make out your identity.  If your motion is successful, then the government will be barred from introducing your statements.  Consequently, the government will be even more burdened when proving your guilt beyond a reasonable doubt.

Defense: Unreasonable Search and/or Seizure

Law enforcement cannot search you, your home, or effects without reasonable suspicion or probable cause that you were involved in a crime.  In addition, police do not need to inform you of the reason for the detention or search, and in most instances they do not.  If you allege a violation of your Fourth Amendment[8] right, then a hearing will be held where the government holds the burden to prove you detention and/or search was legally justified.  Failure to fulfill their burden, the judge will order the physical evidence obtained against you suppressed the government will not be allowed to use it against you in their case in chief. This may be helpful if the government is relying upon the instrument or weapon used the carry out the offense if it was discovered in your car, home, or pocket(s).

Defense: Self-Defense

The government must show that you were not acting in self-defense or in the defense of another. Perhaps the reason you used a weapon in an assaultive manner was for your own protection.  In other words, the alleged victim threatened you or had pushed you and you only responded in the manner as you did to protect yourself from harm.  For example, your boyfriend is upset over an incident involving you flirting with another person.  He proceeds forward telling you that he’s going to choke you.  You then respond by grabbing a kitchen knife and pointing it towards him demanding that he stop.  Note, any necessary force may be used to protect yourself from any wrongful injury.  In the event you were acting in self-defense, it’s imperative to immediately preserve all evidence – i.e., text messages, phone call activity, video surveillance, and have a third party photograph all your injuries before they heal.

Defense: Not a “Deadly Weapon”

If you used the object or instrument with ordinary use for which it was designed, and it’s not a deadly weapon per se, then you cannot be convicted of this offense.  A deadly weapon is “…any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”  Notice that a weapon can be inherently dangerous by itself – i.e., a gun or knife; or it can be an object used in a manner capable of causing death or serious harm.  Therefore, objects that are not per se deadly or if used in a deadly manner, that cannot be capable of causing great bodily harm or death, will not suffice for a conviction.  For instance, a piece of bubble gum, no matter how used, is not an inherently dangerous object nor can it be used in a dangerous manner.  Sometimes objects or instruments are too difficult to tell whether they’re deadly or not, and thus that becomes the legal issue in the case.

Defense: Misidentification

Many criminal cases are built upon eye-witness identification. Alarmingly, exonerations based on DNA or scientific evidence is growing increasingly.  This goes to show how faulty and unreliable eye-witness identification can be.  There are many factors which could affect someone’s ability to recall a perpetrator of a crime.  Poor lighting, cross-racial identification, police suggestibility, and stress over just witnessing the event can all play a critical role in demonstrating unreliable identification.  Our office has succeeded in a number of cases resting solely on witness identification from attempted murder to simple assault.  Just because a witness has identified you as the alleged culprit, does not necessarily mean the government can prove their case beyond a reasonable doubt.

Defense: False Accusation

Little do people know how easy it is to file a police report against some alleging a crime that never actually occurred.  In that unfortunate instance, you could find yourself arrested for a crime you never committed.  There are a number of reasons why someone would falsely report you in committing a crime.  For example, your former boyfriend or girlfriend could be seeking revenge for cheating on them.  Or your former spouse could be alleging a crime in an effort to increase their chances of gaining full child custody by showing that you’re a dangerous person.  If you’re being false accused, the first step to a successful defense is to retain counsel early and then start preserving all critical evidence – i.e., photographs, text messages, phone call details, witness statements, etc.

Defense: Involuntary Intoxication

Involuntary intoxication occurs when you did not intend to consume a substance causing you to become mentally impaired.  The rational for this offense is that you never “intended” to commit the act because you may have not known what you were doing.  In other words, it negates the intent element the government must prove.  Sometimes this defense is difficult to elicit and often argued as an inference since most people will not testify that they slipped something in your drink without you know for instance.  Note that this defense is for “involuntary” intoxication and not voluntary intoxication.  The law will not excuse general intent crimes committed when you were responsible for your own mental impairment.

WHAT IS THE STANDARD BAIL AMOUNT?

The standard bail[9] amount for an ADW charge is $20,000.  This means you must raise $20,000 for yourself, loved one, or colleague to bail out of custody.  Once the case is finalized then you will receive the full $20,000 back from the court.  However, not everyone has $20,000 cash to pay the entire bail amount which is why people often utilize the services of a bail company.  Normally, a bail company will charge you $2,000 to bail out while they put forth the remaining balance.  However, you will not receive your $2,000 from the bail company upon the conclusion of the case.

Note that you have a constitutional right to a reasonable bail amount.  However, if the government alleges additional charges, enhancements, or you have a prior criminal history, your bail amount may exceed the $20,000 standard.  For instance, if the government alleges a gang allegation and you suffer from a prior strike, you bail will be set at $100,000.  Your attorney may be able to reduce your bail amount at your arraignment or ask that you be released on your own recognizance on your promise to appear and that you pose no threat to public safety or flight risk.

IS THIS CHARGE ELIGIBLE TO BE REDUCED TO A MISDEMEANOR AND EXPUNGED?

assault-expungement

If you were convicted of ADW, hope is not lost.  There are post-conviction avenues available to help clean up your record.  First, you’re entitled to appeal your conviction so long as it’s within the statutory period.  This includes suppression issues or claims of ineffective assistance of counsel.  Second, you may be able to withdraw your plea if you were not properly advised of the legal repercussions stemming from your plea.  Third, this offense is a wobbler[10] where you can seek to reduce your felony conviction to a misdemeanor[11] pursuant to PC 17(b)[12] as long as you did not serve time in state prison.  Fourth, you may be eligible for an expungement[13] under PC 1203.4[14] if you were not sentenced to state prison.  Lastly, you could seek a certificate of rehabilitation or application for governor’s pardon.

WHAT ARE EXAMPLES OF ASSAULT WITH A DEADLY WEAPON?

  • EXAMPLE 1: Pushing someone in front of a moving car with the intentions of having the car strike the person you pushed. Notwithstanding your failure to have physical possession of a deadly weapon or were in control of the car, you however intentionally and opportunistically placed a victim in the path of a vehicle driven or operated by a third party – i.e., California law recognizes that it would make no sense to distinguish someone’s use of force of the car and use of the car as a dangerous instrument.[15]
  • EXAMPLE 2: Holding a shape pencil against someone’s throat while you take money out of their pocket. In this instance, you would be charged with robbery and assault with a deadly weapon.  Although the common misconception is that you must effectuate an assault with a knife or sharp instrument, as a matter of law, a sharp pencil is an example of a “deadly weapon” because it’s capable of effectuating a battery – i.e., stabbing someone in the throat which could cause death.[16]
  • EXAMPLE 3: Instructing your trained attack dog to attack someone else or multiple people. A dog comes within the proscribed definition of a deadly weapon depending on the circumstances.  A dog which is trained to viciously attack a human or which has a known propensity to do so when commanded by its handler can warrant the owner/handler to be brought up on charges of assault with a deadly weapon.  The court in People v. Nealis (1991) 232 Cal.App.3d Supp. 1[17] recognized that “depending upon the circumstance of each case, a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury[18], may be considered a ‘deadly weapon or instrument’ within the means of PC 245.”
  • EXAMPLE 4: Using a three inch round end butter knife and applying it in a slashing motion to someone else’s cheek resulting in a small scratch and breaking the knife. In this case, the butter knife did not substantially or significantly injure the person although proof of actual injury is not required.  And the pressure applied was not enough to cause death or great bodily injury.  Moreover, it was too much pressure for the knife to bear, and the handle broke off.  Despite the effort to cause more injury than which resulted, the knife failed and was not capable of use as obviously intended.  Thus, under these circumstances, the defendant would be found not guilty of assault with a deadly weapon.[19]

CONTACT US FOR A FREE CRIMINAL DEFENSE CONSULTATION

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For more information concerning this article or if you or a loved one has been charged with assault with a deadly weapon under PC 245(a)(1), then contact an Assault Defense Lawyer at the Law Office of John Rogers for a free consultation.  There is no obligation to sign with our office and we can provide you advice on all avenues of the case from early investigation through pretrial or post-conviction.

WHAT ARE RELATED CHARGES?

 

FOOTNOTES:

[1] Penal Code 245, subdivision (a)(1): Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

[2] See People v. Beasley (2003) 105 Cal.App.4th 1078.

[3] CALCRIM No. 875: https://www.justia.com/criminal/docs/calcrim/800/875.html

[4] For claims of Self-Defense, See CALCRIMS Nos. 3470-3477.

[5] Per a Victim’s Right to Restitution under Penal Code 1203.

[6] See People v. Aguilar (1997) 16 Cal.4th 1023, where the California Supreme Court stated a “Deadly weapon, within the meaning of statute defining offense of assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury, must be an object extrinsic to the human body…bare hands or feet cannot be a deadly weapon.”

[7] See Miranda v. Arizona (1966) 468 U.S. 384.

[8] Fourth Amendment of the United States Constitution: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

[9] http://johndrogerslaw.com/california-bail-explained/

[10] http://johndrogerslaw.com/what-does-a-wobbler-offense-mean/

[11] http://johndrogerslaw.com/can-i-reduce-my-felony-to-a-misdemeanor/

[12] Penal Code 17, subdivision (b): When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

[13] http://johndrogerslaw.com/practice-areas/expungement/

[14] Penal Code 1203.4: In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

[15] See People v. Russell (2005) 129 Cal.App.4th 776.

[16] See People v. Page (2004) 123 Cal.App.4th 1466.

[17] https://scholar.google.com/scholar_case?case=13565095900241174734&q=People+v.+Nealis+232+Cal.App.3d+Supp.+1&hl=en&as_sdt=2006

[18] http://johndrogerslaw.com/great-bodily-injury-gbi-enhancement-%E2%94%82-california-penal-code-%C2%A7-12022-7-pc/

[19] See In re Brandon T. (2011) 191 Cal.App.4th 1491.

[20] http://johndrogerslaw.com/assault-battery-defenses-punishment-california-penal-code-240-242-pc/

[21] http://johndrogerslaw.com/aggravated-battery-defenses-punishment-california-penal-code-243d-pc/

[22] http://johndrogerslaw.com/brandishing-%E2%94%82-california-penal-code-417-pc/

[23] http://johndrogerslaw.com/corporal-injury-defenses-punishment-%E2%94%82-california-penal-code-273-5a-pc/

[24] http://johndrogerslaw.com/criminal-threat-defenses-punishment-%E2%94%82-california-penal-code-422a-pc/

[25] http://johndrogerslaw.com/domestic-battery-defenses-punishment-%E2%94%82-california-penal-code-243e1-pc/