Assault with a deadly weapon is a serious crime that could overturn your life. Talk of the hefty fines you’ll be required to pay, lengthy prison sentences, and other collateral consequences you will face upon conviction. However, the fact is that most people accused of this crime are innocent. Those who want to appear as victims go to the extent of lying to the authorities about supposedly being assaulted. They may do this out of anger, revenge, or jealousness. The point is there are always two sides to every story. At California Criminal Lawyer Group in Fresno, we are readily available to listen to yours and fight to prove your innocence. Call us as soon as you’ve been charged, and we’ll start working on your case right away.

What Constitutes Assault with a Deadly Weapon?

Penal Code (PC) 245(a)(1) is the law that describes the crime of assault with a deadly weapon. You commit this offense when you attack or try to attack someone else using a deadly/dangerous weapon or through any other way likely to result in great physical injury. Assault with a deadly weapon is frequently known as aggravated assault or ADW. Examples of situations that qualify as ADW are:

  • Ordering your dog to attack someone else.
  • Throwing a stone at another person during a fight.
  • Attempting to stab another person with a broken wine glass.

Elements of the Crime

Elements of the crime are the facts the DA must prove for an accused to be convicted of a crime. For the judge to sentence you for ADW, the prosecution must demonstrate the following elements beyond any reasonable doubt:

  • You did an act that would naturally lead to the direct use of force upon another person.
  • You did that act either using a deadly weapon or force likely to cause great physical injury.
  • Your act was willful.
  • You knew that a reasonable party would believe your action would probably or directly lead to the use of force upon that person.
  • You had a present capability to use force likely to cause great physical harm or force with a deadly weapon.

Remember that the supposed victim doesn’t have to sustain an injury for you to be convicted. The prosecution focuses on whether your act would've led to the use of force and not whether you applied force. Questions frequently arise on what application/use of force, serious injury, deadly weapon, and willfully mean under this law.

Application/Use of Force

Application/use of force per this law is any offensive or harmful touching. Even the slightest bodily contact counts if it’s done offensively or rudely. Also, note that you can be accused of violating PC 245(a)(1) even if your touching wasn’t direct. You can do the touching indirectly, for instance, by making an object touch the alleged victim. Another point worth noting is that you need not have succeeded in using force upon the victim to be guilty. All that counts is that you took an action that’d probably have caused force to be used upon the victim.

Deadly Weapon

Per this law, a deadly weapon means any object/weapon that can cause death/great bodily injury. This definition comprises the obvious dangerous weapons like knives and guns. But other items too can be lethal weapons if a person used them in a manner that could cause someone else substantial harm or kill them. Examples of these items include:

  • A bottle (when used to hurt someone).
  • An unloaded firearm (when used to hit or club another person).
  • A pencil (when used to stab another person).
  • A car (when used to try to run another person over).
  • A dog that’ll attack humans when ordered.
  • A BB gun.
  • A sword.

Great Bodily Injury

The state’s law describes a great bodily injury as substantial or significant physical injury, implying something more than just minor harm. Some of the injuries considered to be significant physical injuries are black eyes, lacerations, dog bites, gunshot wounds, and broken bones.

Acting Willfully

Per this law, acting willfully means doing something purposefully or willingly. You need not have intended to violate this law, hurt a person, or benefit in any way.

What to Do After Your Arrest for ADW

Not everybody facing criminal charges is guilty. What you do and particularly say at the time of your arrest may significantly impact your case should it go to trial. If you’re being charged, the officer will read you your Miranda rights. But even before that, you have to be careful with whatever you tell the law enforcement officers. The best thing to do when you’re charged or think you may face charges is:

  • Don’t say anything— if you have to give any comment, do so only if whatever you plan to say is that you were lawfully defending yourself or didn’t do anything at all. Note that a law enforcement officer isn’t a jury or judge and can’t determine your innocence or guilt. Their role is establishing whether you indeed committed the offense based on the information they have. Therefore, remain silent and let them do their job.
  • Be calm— innocent persons land themselves in much more trouble when charged since they don’t remain calm. If you’re being accused of ADW, cooperate with the authorities and don’t try verbally abusing the police or resisting arrest. This kind of behavior could result in more charges that could be detrimental to your case.
  • Call an attorney— contact an attorney as soon as possible or have a friend or close relative retain the services of a skilled ADW attorney.

ADW Penalties

ADW is considered a wobbler if the lethal weapon the defendant used wasn’t a firearm. A wobbler crime is that which the DA can prosecute either as a felony or misdemeanor. If convicted of a misdemeanor, your punishment will include informal probation, a fine that doesn’t exceed $1,000, and up to a year in jail. And if guilty of a felony, you will be subject to a maximum of four years in prison, a fine not exceeding $10,000, and formal probation,

These consequences change if the assault involved using a gun or was performed upon a firefighter or police officer. If you carried out the assault using an ordinary gun such as a pistol or revolver, you might face misdemeanor or felony charges. If convicted, you will face the same punishments as those we mentioned above, with the only difference being that a misdemeanor conviction carries a jail sentence of at least six months.

PC 245(a)(1) violation would always be a felony if you committed the assault using a machine gun, semi-automatic firearm, .50 BMG rifle, or assault weapon. The consequences upon conviction will include time in prison for twelve years.

Assaulting a person with a lethal weapon when you were aware or reasonably should’ve known that person is a firefighter or police/peace officer will subject you to a state prison sentence of five years upon conviction. If you assaulted the firefighter or peace/police officer using a firearm, the prison term could increase to twelve years.

ADW and the Three Strikes Law

Assaulting someone with a lethal weapon could be considered a strike based on whether the crime is a felony/ misdemeanor. The accused used a lethal weapon/force to cause significant bodily harm, or the supposed victim suffered substantial bodily harm injury.

If convicted of a misdemeanor, ADW doesn’t count as a strike offense. A felony where you didn’t use a lethal weapon but instead applied force probably to cause significant bodily harm. The victim didn’t sustain great physical injury also doesn’t count as a strike.

A felony conviction where you didn’t use a lethal weapon but instead applied force likely to cause significant physical harm and the victim sustained great physical injury counts as a strike offense under the Three Strikes Law. And, a felony conviction where you used a lethal weapon, regardless of whether the victim suffered significant bodily injury or not, counts as a strike.

Immigration Consequences of an ADW Conviction

An ADW conviction may have adverse immigration consequences. Immigration law provides that if an immigrant is found guilty of a crime of moral turpitude or an aggravated felony, they can be labeled inadmissible or deported. Under California law, felony ADW is a violent crime and thus an aggravated felony. By this, it means that you’ll face negative immigration consequences if you’re found guilty of ADW.

ADW Conviction and Its Effect on Gun Rights

An ADW conviction may negatively affect your firearm rights. California statute says that a convicted felon can’t possess or own a firearm. Remember that ADW can be prosecuted either as a felony or misdemeanor. If you’re charged and found guilty of a felony, then you’ll lose your gun rights.

Legal Defenses to ADW Charges

A mere verbal argument may quickly escalate to a situation resulting in ADW charges. However, being charged doesn’t necessarily mean you’ll be convicted. Having a lawyer by your side fighting for you may make a huge difference. Remember that the law presumes that you’re innocent until proven guilty, and your attorney may have your charges dismissed by asserting the following legal defenses.

You Acted in Self-Defense or Defense of Someone Else

You can try beating an ADW charge by arguing that you acted lawfully to defend yourself or someone else. However, this defense only works if you can show you:

  • Believed you or the person you were defending was in impending danger.
  • Believed force was mandatory to stop that danger.
  • Applied an appropriate amount of force for defense given the circumstances.

Your Act Wasn’t Willful

Note that one of the elements of ADW is that your act must have been willful. This means if you can only be convicted if you acted on purpose. Therefore, it’s a defense for you to show your act wasn’t intended. It could be that you committed the act by accident and with no specific purpose in mind. If the prosecution can’t demonstrate willfulness beyond any reasonable doubt, your charges should be dismissed.

The Weapon Wasn’t Deadly

You can only be found guilty of violating PC 245(a)(1) if you committed the assault using a deadly object/weapon. By this, it means it’s a legal defense for you to prove that even though you assaulted the victim, you didn’t do so using a lethal weapon.

You can support this legal defense by pointing out facts to prove that the object you had wasn’t deadly. For instance, perhaps you threw a headband at someone else. In this case, the prosecution might agree to lower your ADW charges to PC 240, simple assault.

False Allegations

It is not uncommon for a person to be wrongly accused of an offense they did not commit. It could be that the victim was moved by the desire to revenge, jealousy, or anger. If this is true in your case, your attorney may be capable of proving that you’re just a victim of false accusations. They may prove a false allegation by gathering critical proof such as text messages, phone records, witness statements, and emails.

You Did Not Have the Present Ability to Assault the Victim

If you threatened to assault the victim but didn’t have the present ability to do so, the judge can’t find you guilty of ADW. For instance, if you threatened to shoot the victim but the firearm wasn’t loaded, it wouldn’t be possible for you to inflict significant bodily injury willfully.

A defense lawyer’s exact strategy in defending against ADW charges depends on the alleged offense’s facts. A defense lawyer may try having the ADW charges dismissed altogether or reduced to assault in certain cases. For others, the lawyer may suggest that the case goes to trial and fight for an acquittal. It’s critical to note that if you have been charged with assault with a deadly weapon, you should take full advantage of your constitutional rights by exercising your right to stay silent and politely insist on having a lawyer present before responding to any questions.

ADW Conviction Record Expungement

If convicted of ADW, you can have your conviction record expunged. You can request for the expungement provided you’ve successfully served your probation or jail sentence (whichever the judge imposed). A judge could still grant your expungement request even if you violated one of the probation conditions.

PC 1203.4 provides that a record expungement releases a person from almost all disabilities and penalties originating from the conviction.

Related Crimes to Assault With a Deadly Weapon

Related crimes to assault with a deadly weapon are those a prosecutor can charge instead or alongside ADW because they have similar elements. For example, if the prosecutor can’t prove all the elements of ADW, they could charge you with a lesser included offense of ADW. And if the same prosecution can prove additional elements, more than what’s required to sustain an ADW conviction, they can charge you with a more serious crime than ADW, and it’ll be up to your lawyer to seek a charge reduction. Offenses that are closely related to ADW include:

Penal Code 245(a)(2) – Assault with a Firearm

Penal Code 245(a)(2) describes assault with a firearm as an illegal attempt, combined with a present capability to injure someone else severely using a gun. No bodily contact nor injury to the victim is needed for you to be convicted. This crime is similar to assault with a deadly weapon, with the only difference being the deadly weapon has to be specifically a gun. Assault with a firearm is a wobbler offense. A misdemeanor conviction punishment includes summary probation, a maximum of $1,000 in fines, and up to a year in jail. On the other hand, a felony conviction is punishable by formal probation, a maximum fine of $10,000, up to four years in prison, and loss of firearm possession/ownership rights.

Penal Code 399 – Failure to Control a Dangerous Animal

PC 399 is the state’s law describing the crime of failure to control a dangerous animal. You commit this offense if you own a dangerous animal and you willfully don’t use ordinary care in taming it or let it run free, causing bodily harm or death to someone else. You can commit ADW with a dangerous animal if the animal can attack command and give the order to attack. 

PC 399 violation penalties vary depending on whether or not the victim died or suffered severe bodily injury. Where the victim suffered serious physical harm, the crime is considered a wobbler. And if the victim died, the offense is a straight felony. Penalties of a misdemeanor conviction are a maximum of six months in jail and up to $1,000 in fines, while felony punishments include a maximum of three years in prison and up to $10,000 in fines. You may also be prosecuted under involuntary manslaughter law.

Penal Code 217.1 – Assault on a Public Official

Per PC 217.1, you commit the offense of assault on a public official when you assault a public official either to prevent or in retaliation for the performance of their official duties. Unlike ADW, you can be convicted of this offense even if you didn’t use a lethal weapon when committing the assault.

Assaulting a public official is considered a wobbler crime. If convicted of a misdemeanor, your punishments will include a fine not exceeding $1,000 and a jail sentence of not more than a year. And if convicted of a felony under this statute, the consequences will include up to $10,000 in fines and a prison sentence of not more than three years.

Penal Code 417 – Brandishing a Firearm or Weapon

PC 417 is the state’s law that describes the offense of brandishing a deadly weapon or firearm. You commit this crime by using a lethal weapon during a fight or exhibiting or drawing a gun or other deadly weapon. Unlike ADW, Penal Code 417 violation doesn’t require proof that the victim was assaulted. PC 417 violation is typically a misdemeanor offense. Consequences upon a conviction will include a jail sentence for one year.

Penal Code 240 – Assault

Assault or simple assault under PC 240 is an illegal attempt, combined with the present capability to injure someone else severely. Unlike ADW, you do not have to use a deadly weapon when assaulting someone to be convicted under this law. This means that the prosecution may lower your ADW charges to assault if your lawyer proves that the weapon used wasn’t deadly or you didn’t use any weapon at all. Simple assault is a misdemeanor offense punishable by a maximum of six months in county jail, summary probation, and $1000 in fines.

Penal Code 664/187 – Attempted Murder

You commit attempted murder when you intend to kill a person and take a direct step towards killing them, but they do not die. Like murder, attempted murder is categorized into two— first and second-degree attempted murder. First-degree attempted murder is a felony punishable by life in prison. Second-degree attempted murder is also a felony punishable by nine, seven, or five years in prison. Attempted murder charges may be lowered to ADW charges if the prosecutor can’t establish all the critical elements to convict you of PC 664/187 violation.

Other related crimes to assault with a deadly weapon include:

  • Penal Code 242 – Battery.
  • Vehicle Code 223110(b) – Throwing Dangerous Objects at a Vehicle.
  • Assault with Caustic Chemicals.
  • Battery causing severe injury.

Find Aggressive Fresno Criminal Defense Services Near Me

Apart from the criminal penalties mentioned above, being convicted of assault with a deadly weapon can negatively impact your prospects, employment, educational opportunities, and reputation. That is why you want to hire a highly experienced attorney to help you avoid a conviction. At California Criminal Lawyer Group in Fresno, our lawyers have decades of combined legal experience fighting assault with a deadly weapon charge for clients charged in Fresno County.

Our primary objective is to obtain the best possible outcome for our clients through expert negotiations and preparing each case as if we were going to trial. And given our extensive knowledge of assault with a deadly weapon law, we always leave our clients content. Contact us at 559-712-8377 for a free, confidential case evaluation and learn more about your legal options.