In  California, violent offenses are vigorously prosecuted, and the criminal punishment penalties are severe, particularly in situations involving Aggravated Assault. Aggravated Assault, as described by PC 245, refers to a variety of more specific criminal offenses, that range from Assault With Deadly Weapon as per Penal Code 245(a)1 to charges of Assault With Firearm as per PC 245(a)2.

A felony aggravated assault charge can lead to prison time and hefty fines, not forgetting the loss of freedom and rights that comes with being labeled a convicted felon. With so many things on the line, you should safeguard yourself as well as your future by contacting the California Criminal Lawyer Group in Anaheim to learn how we can help your case.

Legal Definition of Assault with a Deadly Weapon

California Penal Code 245(a)(1) PC describes the crime of assault with a deadly weapon as when someone attacks, or attempts to attack, another person with a deadly weapon (other than a firearm), or by a means that is likely to cause great bodily injury.

Assault with a deadly weapon is also commonly known as “ADW” and normally charged when there is an unlawful attempt to injure another individual by using a deadly weapon. Assault with a deadly weapon as per Penal Code 245(a)(1) is charged as a "wobbler" offense in California, meaning it could be prosecuted as a felony or a misdemeanor.

An instance of AWD happens where someone tries to stab someone else using a knife when they're arguing.

The Difference Between Simple Assault and Aggravated Assault

According to California PC 240, a Simple Assault is defined as an unauthorized attempt, combined with current capability, to inflict a severe injury against another person. Although Assault is often tried as a misdemeanor charge, it could be pursued as a felony charge if you're found to have committed an Assault using a deadly weapon, a firearm, or other means capable of causing serious bodily harm as per PC 245 - Aggravated Assault.

Aggravated Assault, like misdemeanor Assault, doesn't need bodily contact or injuries with the purported victim. However, the comparisons between misdemeanor simple assault and felony aggravated assault end there, because the penalties and penalties you suffer if charged with felony aggravated assault are significantly more severe than those of misdemeanor simple assault.

Elements of Assault with a Deadly Weapon

To convict you of assault with a deadly weapon, the prosecutors need to prove beyond a shadow of a doubt that:

  • You executed an action that intrinsically would result in the appliance of force against someone else
  • You executed that act using a deadly weapon or through force or violence capable of causing severe bodily injury
  • You purposefully executed that act
  • You were aware, or reasonably should've been aware, that that act could result in the use of force against that person

What is the “Application of Force” Under Penal Code Section 245(a)(1)?

The use of force in a deadly weapon assault charge doesn't have to include any kind of harm or require that you specifically target your victim. All that's needed would be that you knowingly executed a deed that would, in essence, lead to force being used against another person. If you hurl a knife at someone but miss, for instance, you could still be prosecuted with assault with a deadly weapon.

A knife is considered a lethal weapon, and when you hurled it, you should have been aware that it could lead to serious physical injury.  It makes no difference if your victim ducked to avoid the knife and was not hurt.

What is “a Deadly Weapon”?

This is a tool that can cause death or serious bodily harm. Knives and weapons are obvious examples. However, anything might be considered a deadly weapon when it's employed in a way that is likely to cause serious physical harm.

A butter knife, an empty rifle, and a vehicle can all be used as deadly weapons. They can be classified as deadly weapons once they are utilized in a manner that's capable of resulting in the employment of lethal force likely to cause harm.

Hands and feet, as well as other body parts, aren't necessarily deadly weapons. However, an assault using one's hands or feet might be considered a deadly weapon when they are employed in a way that is likely to cause serious bodily harm to another person.

What is “Great Bodily Injury”?

This is defined as considerable physical injuries, such as severe wounds or bruises, concussions, fractured bones, or any other severe injuries. It doesn't include injuring yourself or a co-conspirator in the crime.

What is “Willfully”?

Under Penal Code § 245(a), if you had intent to execute an act beforehand, it means that you committed it willfully. The willful requirement according to Penal Code § 245(a), does not necessitate that you disobey the laws or harm anyone. You have fulfilled this provision of the penal code if you meant to execute an act likely to cause serious bodily injury.

What Does it Mean to be “Aware”?

As previously stated, you did not have to plan to employ force on your victim. You should have planned to employ force, knowing or must have been aware that it would almost certainly result in serious physical harm.

For instance, if you used a blunt object and used it in a way that was capable of resulting in death or serious bodily injury, it's difficult to make an argument that you didn't know, weren't aware of, or couldn't have been that the act would cause lethal force or serious harm against your victim.

Is Penal Code 245(a)(1) a Misdemeanor or a Felony Offense?

Assault with a deadly weapon is charged as a "wobbler" as per Penal Code 245(a)(1), meaning the prosecution has the choice of filing the charge as a felony or misdemeanor. Even though the Penal Code 245(a)(1) offense is prosecuted as a felony at the outset, it may be lowered to a misdemeanor charge:

  • Through negotiating a plea deal with the prosecution, or
  • In court, a petition to decrease under Penal Code 17b PC

Penalties for Assault with a Deadly Weapon Charge

As previously indicated, Penal Code 245 is prosecuted as a wobbler offense in California. Depending on the type of weapon used in the event, whether the victim was hurt as a consequence of the violation, and the profession of the person you assaulted, you might suffer misdemeanor or felony penalties.

PC 245(a)(1) – Assault With Deadly Weapon

If you used a deadly weapon, but the weapon wasn't a firearm, California Penal Code 245 (a) is prosecuted as a wobbler crime. A wobbler is an offense that can be prosecuted as a felony or a misdemeanor. If you have been charged with a misdemeanor charge, you will face the following penalties:

  • Misdemeanors/summary probation
  • Imprisonment for a maximum of 1 year in a county jail
  • Maximum fines of up to $1,000

If you are charged with a felony, you will face:

  • Felony / formal probation
  • A maximum of 4 years in California state prison
  • Fines of up to $10,000

Remember that in a case of assault using a lethal weapon, the above punishments will change when:

  • You used a firearm
  • You assaulted a firefighter or a peace officer

PC 245(a)(2) – Assault with Firearm

If you purportedly employed a firearm as a deadly weapon, the consequences are more severe. If that firearm was common, the crime will be prosecuted as a wobbler, which means it might be prosecuted as a misdemeanor or a felony. You will, however, be sentenced to up to 6 months in county jail. The seriousness of the sentence sought by the prosecutors will be determined by the particular elements of the case as well as your criminal record.

  • If the criminal act is charged as a felony, you might face up to four years in state prison
  • If the criminal act is charged as a misdemeanor, the minimum term is six months and the maximum sentence is a one year sentence in county jail
  • Maximum fines of $10,000
  • Probation, whether informal or formal
  • Restitution to your Victims
  • Loss of gun ownership privileges
  • Enrollment in an anger management program
  • Community service

PC 245(a)(3) – Assault with A Machine Gun

If you used a machine gun during the assault, you might face a sentence of four, eight, or twelve years in state prison

  • A maximum fine of $10,000
  • Formal probation
  • Restitution to Victims
  • Anger management program
  • Loss of gun ownership rights
  • Community service

PC 245(c) – Assault On a Peace Officer with a Deadly Weapon

If you assaulted a firefighter or a person recognized as a peace or police officer using a deadly weapon the consequences are heightened. This could include firefighters, police officers, paramedics,  sheriff's deputies, government investigators, harbor police, and marshals.

  • A maximum of 5 years in a California state prison
  • A fine maximum fine of $10,000
  • Formal probation
  • Loss of gun ownership rights
  • Restitution to victims
  • Community service
  • Anger management program

Penalties for Assault with a Motor Vehicle as a Deadly Weapon

If you purportedly used an automobile as a deadly weapon, you may be prosecuted with a felony or a misdemeanor, based on the facts of the occurrence as well as your criminal background. If the case is prosecuted as a felony, the judge and the DMV will prohibit you from driving for a lifetime. The judge will not take away your rights to drive when the case has been prosecuted as a misdemeanor, however, the DMV has the authority to suspend your driver's license or even enforce other limitations.

Possible Defenses to Assault With a Deadly Weapon

An assault with a deadly weapon allegation can be defended in a variety of ways. Such as:

The Act was not Intentional

Please keep in mind that an accused can only be found guilty under Penal Code 245 (a)(1) if he or she acted knowingly. As a result, proving that a defendant didn't act intentionally is a viable defense. Maybe the accused did something accidentally and with no specific goal in mind. The accusation of intent should be withdrawn if the D.A. can't prove it beyond a shadow of a doubt.

Self Defense or Defense of Others

"Self-defense" or "in the defense of others" is also another popular defense to this charge. Self-defense happens when a person has a reasonable belief that they're at serious risk of physical harm and also that their reaction is reasonable and appropriate to the threat.

In the scope of a Penal Code 245 charge, a situation in which a resident of a house uses a baseball bat to smash a gun-wielding burglar on the head because he or she is afraid the offender will shoot is an illustration of self-defense.

In a similar situation, the homeowner might be entitled to argue the defense of others if s/he was disarming the invader with a baseball bat who was pointing the rifle at his or her daughter. In other words, in the defense of another, someone might put themselves in the position of someone else and employ the same level of force that the threatened person could've been entitled to do if they could defend themselves.


Another possible defense to a Penal Code 245 accusation is misidentification on the victim's or witnesses' parts. This differs from other legal defenses that call into question certain aspects that have to be established to demonstrate that the crime was committed.

A defense against assault with a deadly weapon, for instance, could simply be denying that no deadly weapon was used. This type of defense might be persuasive if you used a water gun to squirt water into someone's eye. Although this act may be inappropriate or even unpleasant, it is unlikely to entail the employment of a lethal weapon or violence capable of causing serious bodily harm.

False Accusations

Someone may falsely accuse you of committing PC 245.   You may be the target of false allegations because someone is envious of you, is seeking revenge for maybe an act you did previously, or is upset with you for whatever reason. In other cases, the purported victim may have hurt themselves to place blame on someone else for their selfish motives.

If you are being falsely accused of assault with a deadly weapon, it is beneficial to retain the counsel of an experienced attorney. A skilled lawyer will know which experts to consult to establish your innocence before the court. He or she is aware of the types of evidence to collect as well as how to employ various investigative strategies to obtain adequate proof to work in your best interests.

You were Unaware of the Victim's Identity

You won't be convicted of assault if you did not know that your victim was a peace or law enforcement officer.  The case could be dropped if the prosecutors cannot prove that you knew the victim's identity. It's worth emphasizing that if there's enough proof that you committed the crime, you might face charges of violence.

Related Offenses

The following acts are regarded as "related" because they are frequently tried under PC 245 or share elements that the prosecutors need to prove beyond a reasonable doubt.

Simple Assault Under PC 240

California PC 240 makes it a crime to try to cause serious bodily injury on someone else. As an element of assault, there is no requirement that the perpetrator makes contact with their victim, and the prosecution doesn't need to prove that any contact occurred. Even though the contact was minimal, you could still be charged with simple assault.

If you have been charged with simple assault as a misdemeanor, you may suffer the following consequences:

  • A maximum sentence of 6 months in jail
  • Fine ranging from $1,000 to $10,000
  • Penalties that include both jail and fines

Failure to Control or Restrain a Dangerous Animal – Penal Code 399

Refusal to contain a vicious animal is a violation of Penal Code 399. A person will be found guilty of this offense when he or she is the owner of a vicious animal and:

  • He or she intentionally permits an animal to run wild or refuses to provide for it sensibly, and
  • It results in someone else being gravely hurt or killed

When a person uses a dangerous animal to carry out a deadly weapon assault, the following conditions must be met:

  • That animal can viciously attack someone on demand
  • The owner initiates the attack

Brandishing a Weapon or Firearm – PC 417

Brandishing a Weapon is a crime under PC 417 that happens once someone exposes a weapon with no lawful purpose and when another person is present.

When you are charged with this crime, you may suffer the following consequences:

  • A jail term of 1 year
  • $1,000 in fines
  • Penalties that include both jail and fines

Frequently Asked Questions on Assault With A Deadly Weapon

What can be Regarded as a Deadly Weapon?

As stated above, Any object with the potential of causing substantial harm to someone else qualifies as a deadly weapon. The basic arsenal of deadly weapons includes knives, guns, and bombs. However, commonplace items like a lamp, baseball bat, can be used as lethal weapons. Essentially, an object that can be used lethally can result in a conviction of assault with a deadly weapon.

Can I be Charged with Assault with a Deadly Weapon When I Didn’t Use a Weapon?

Even though you didn't wield a weapon when you committed the assault, you might be accused of assault with a deadly weapon if at that moment you could use violence likely to cause serious bodily harm. Owing to the severity of your victim’s injury, hitting or striking somebody on the neck or head might result in an assault with a deadly weapon prosecution.

Can a PC 245 Assault With A Deadly Weapon Conviction be Lowered to a Lesser Crime?

The allegations of aggravated assault may be lowered to simple assault when you enlist the help of a skilled criminal defense attorney. This violation attracts a shorter prison sentence and reduced criminal penalties. If the proof is strongly presented before the judge in your best interest, the attorney could be able to have the accusations completely dropped.

Is Intoxication a Valid Defense to Assault With a Deadly Weapon?

It can not be accepted as a legal defense to an assault with a deadly weapon allegation if you intentionally consumed alcohol or you were deliberately inebriated at the moment of the assault. Your defense attorney, on the other hand, can raise alternative arguments in your favor that could result in the charge being reduced or dropped entirely.

Are there Immigration Consequences?

An ADW charge could have implications on immigration. If you are a non-citizen and you perpetrate an aggravated felony, the law stipulates that:

  • You could be deported
  • You could be declared inadmissible

A felony assault with a deadly weapon is defined as follows:

  • A violent crime
  • An aggravated felony

It implies that if a person is charged with a felony as per Penal Code 245 (a), he or she will face serious consequences.

Can a Person Get a Conviction Expunged?

Anyone charged with this offense may be able to have their criminal record expunged. This is applicable if you complete:

  • Probation
  • A jail sentence

The court may also grant expungement of your criminal record if you violate a probation requirement. An expungement, according to PC 1203.4, frees a person from "nearly all consequences and restrictions" resulting from a criminal conviction.

Find an Anaheim Criminal Defense Lawyer

If you have been accused of assault with a deadly weapon, the California Criminal Lawyer Group in Anaheim can offer you a skilled and aggressive criminal defense to protect your freedom. Call us immediately at 714-766-0965 to set up a  consultation to review your strategies for challenging these charges and securing your future.