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

If you assault someone while using a deadly weapon, then the prosecutor will charge you with California Penal Code 245(a)(1) pc.[1] While deadly weapons include guns, bats, knives, beer bottle, brass knuckles, vehicle, it also extends to any object capable of inflicting great bodily harm.

Assault with a deadly weapon can be charged as a felony or misdemeanor. Contrary to popular belief, it does not require physical contact with your accuser. For example, swinging a kitchen knife toward your accuser may suffice to warrant charges. However, if any injury results, the extent of the injury will be largely considered when determining the appropriate charge level.

PC 245(a)(1) punishes someone for the use of a deadly weapon other than a firearm. Any inanimate object can qualify as a deadly weapon if it is capable of producing great bodily injury or death. The weapon cannot be connected to the human body – i.e., hands and feet.[2] When determining whether an object qualifies as a deadly weapon, the court will consider:

  • Nature of the object, or
  • Whether the object was used in a deadly manner

What Is The Prosecution Required To Prove?

According to CALCRIM 875[3], the prosecution must prove the following elements beyond a reasonable doubt to convict someone of penal code 245(a)(1) pc:

1. An act was committed that would directly and probably result in the application of force;

2. The force was likely to produce great bodily harm;

3. You acted willfully;

4. A reasonable person would believe that the act would directly and probably result in the application of force;

5. You had the present ability to apply force to another;

6. You did not act in self-defense[4] or in the defense of another.

What Are The Consequences Of Assault With A Deadly Weapon In California?

Even for a first-time offender, PC 245(a)(1) is punishable by up to 1 year in the county jail for a misdemeanor. A felony conviction carries a state prison sentence of 2, 3, or 4 years. Regardless of the offense level, the court may impose a fine of up to $10,000. The alleged victim will be entitled to receive compensation for any economic loss that resulted.[5]

Other significant consequences may include:

  • The court may impose a protective order barring you from contacting your accuser.
  • Adversely affect occupational or professional licensing.
  • A conviction may result in adverse immigration consequences for non-U.S. citizens.
  • If you are convicted of assault with a deadly weapon by means of a motor vehicle, then you could lose your California driver’s license for life.

What Are The Legal Defenses To Penal Code 245(a)(1)?

Constitutional Challenges

Law enforcement may have committed a constitutional violation that could result in the prosecution’s inability to continue with their case against you. Indeed, the police may have searched your person, home, or vehicle without probable cause or any level of suspicion that will result in the suppression of evidence under the Fourth Amendment. Furthermore, you could have been subject to custodial interrogation without being admonished of your Miranda rights[6].


A person is allowed to act in self-defense to prevent unreasonable risk of injury to themselves or someone else. This defense is not contingent on the aggressor’s sex or physical size. In addition, there is no requirement that you retreat when faced with a threat of force. You are legally permitted to stand your ground and defend yourself, or another, from harm.


Assault with a deadly weapon requires a purposeful act. Conversely, if a person commits an act on accident or by misfortune, then no crime was committed.

Mistaken Identification

There are countless factors and outside influences that affect a witness’s ability to recall a perpetrator’s physique, clothing, and crucial facial features. Moreover, poor lighting, stress, cross-racial identification, and police suggestibility are all common factors leading to mistaken identification.

False Accusation

False accusations are usually motivated by financial gain, child custody, or revenge from your accuser. It’s not uncommon for a party to fabricate the circumstances in an effort to manipulate the criminal justice system against an innocent person. We do not tolerate these reprehensible efforts and our office is prepared to defend anyone who is being held liable under false claims.

Involuntary Intoxication

Involuntary intoxication occurs when you unknowingly consume a substance that causes mental impairment. This negates the intent element because you may not have known what you were doing.

What Are Examples Of PC 245(a)(1)?

  • Intentionally pushing someone in front of an oncoming car. Notwithstanding your failure to have physical possession of a deadly weapon, you nonetheless, intentionally and opportunistically placed a victim in the path of a vehicle driven 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.[7]
  • Holding a sharp pencil against someone’s throat while you take money out of their pocket. In this instance, you would be charged with robbery and PC 245(a)(1).  Although the common misconception is that you must effectuate an assault with a knife or deadly object per se, 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.[8]
  • Instructing your trained attack dog to bite someone. A dog comes within the proscribed definition of a deadly weapon depending on the circumstances.  A dog that 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.[9]
  • Applying a 3-inch butter life in a slashing motion to someone’s cheek that results in a small scratch. The butter knife handle broke as a result of applying pressure. Here, the butter knife did not 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 what resulted, the knife failed and was not capable of use as obviously intended. Under these circumstances, the defendant would be found not guilty of assault with a deadly weapon.[10]

What Are The Related Charges?

Contact Us To Schedule A Risk-Free Consultation

If you or a loved one has been charged with assault with a deadly weapon under PC 245(a)(1), then contact a Newport Beach Criminal Defense Attorney at the Law Office of John Rogers for a risk-free consultation. Early retention of a reputable attorney can make the difference between serving time in state prison or having your case rejected entirely from prosecution. Give us a call today and tell us your side of the story.

Legal 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. 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.”

[3] CALCRIM No. 875:

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

[5] See Victim’s Right to Restitution under Penal Code section 1203.

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

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

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

[9] In People v. Nealis (1991) 232 Cal.App.3d Supp. 1, the Court 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, may be considered a ‘deadly weapon or instrument’ within the means of PC 245.”

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

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