Assault With a Deadly Weapon: California Law Explained!

Assault with a Deadly Weapon or Assault Likely to Produce Great Bodily Injury (also known as “ADW,” “aggravated assault,” or “felony assault”) are serious offenses. Being charged with assault under California Penal Code section 245 (or “PC §245” for short) can lead to significant consequences. PC §245 is meant to punish those who use a weapon, gun, other object, or significant force to commit an assault.

It is important to note that an assault does not require any injury. For instance, throwing a beer bottle at someone is likely to be considered assault with a deadly weapon, even if the bottle misses them completely. If the beer bottle actually hits the person, it is considered battery.

Given the variety of circumstances and conditions surrounding an alleged assault, California law provides a few ways to classify an assault. These seemingly “small” differences are often underappreciated and misunderstood by the general public. For example, assault with a deadly weapon or with great bodily injury can be charged as either a felony or a misdemeanor in many cases.

Punishments Assault with a Deadly Weapon

The penalties for a conviction under PC §245 are shown below.

Importantly, your punishment will depend on the strength of your legal defense, the facts of your case, your criminal history, and many other factors. Of note, people who are not citizens of the United States face the strong possibility of deportation or removal from the United States and future inadmissibility upon conviction.

Assault by Force Likely to Create Bodily Injury

Code Section	Penal Code, § 245(a)(4)
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in custody.

Assault with a Deadly Weapon

Code Section	Penal Code, § 245(a)(1)
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in custody.

Assault with a Deadly Weapon Using Any Firearm

Code Section	Penal Code, § 245(a)(2)
Violation Type	Can be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody Time	If charged as a misdemeanor: up to one year in jail. If charged as a felony: two, three, or four years in custody.

Assault with a Semi-Automatic Firearm

Code Section	Penal Code, § 245(b)
Violation Type	Felony
Custody Time	Three, six, or nine years.

Assault with a Weapon on a Police Officer or Firefighter

Code Section	Penal Code, § 245(c)
Violation Type	Felony
Custody Time	Three, four, or five years.

Assault with a Firearm on a Police Officer

Code Section	Penal Code, § 245(d)
Violation Type	Felony
Custody Time	Four, six, or eight years.

Assault with a Semi-Automatic Firearm on a Police Officer

Code Section	Penal Code, § 245(d)(2)
Violation Type	Felony
Custody Time	Five, seven, or nine years.

Categories of Assault under PC §245

There are four general categories of assault under PC §245:

• Assault with any deadly weapon or instrument under Penal Code §245(a)(1)
• Assault with force likely to produce great bodily injury under Penal Code §245(a)(4) (police officers often write this down as “PC245 assault w/force likely to produce GBI”)
• Assault using a firearm or gun under Penal Code §245(a)(2)
• Assault using a machinegun or a .50BMG rifle under Penal Code §245(a)(3)

Assault crimes under PC §245 are very broad and cover many types of circumstances. The punishment you face and your defensive tactics will depend on exactly what you are charged with.

For instance, police officers and firefighters on duty are protected from assault under Penal Code §245(d)(1). A conviction for assaulting a police officer with a firearm is punishable in state prison for 4, 6 or 8 years. However, one additional element that must be proved under Penal Code §245(d)(1) is whether you knew the person was a police officer or firefighter. In certain cases, this element may not be present and a conviction should not occur.

The precise details and law can easily increase or decrease a prison sentence by several years. You need to be fully informed to make the best possible decision for yourself.

Differences between felony and misdemeanor ADW

Prosecutors can choose to file certain assault cases as either a felony or a misdemeanor. As your case progresses, the weaknesses or strengths of the case will also become apparent which will either increase or decrease your charge and potential punishments.

A prosecutor’s decision to charge a felony or a misdemeanor is dependent on:

• The severity of injuries suffered.
• Your criminal history, if any.
• The procedural legal challenges in proving the case against you. For example, if the victim does not want to testify or cannot be located by police, a prosecutor may reduce the punishments because they are less confident they can secure a guilty verdict at trial.
• The stronger your legal defense and facts the greater your confidence and ability to negotiate better terms of any agreement between you and the prosecutor.

Building your defense immediately will allow you to more-readily persuade the prosecutor that a case dismissal, less serious charge, or a reduction in punishment is in everyone’s best interest and in the interest of justice. Most prosecutors do not want to pursue a case where the police investigation is flawed or weak, the victim is not credible or where they face uncertainty in proving their case.

Definition of “deadly weapon” under PC §245

To be considered a deadly weapon, the physical character of the object, the way it is used, the likelihood of serious injury and many other important facts are used to determine whether an object is considered a deadly weapon under California law. 1 If an object is not considered a deadly weapon, a less serious charge like misdemeanor assault or battery could apply.

It may be surprising to learn what can be considered a deadly weapon. Besides the obvious (like guns and knives), many ordinary household items can also be considered a “deadly weapon” under PC §245 if used in a dangerous manner:

• Throwing beer bottles, glass cups, chairs or stools
• Using a car or other vehicle in an attempt to run someone over
• Punching someone in the face with car keys
• Hitting or swinging at someone with a tire iron, tire wrench or steering wheel lock
• Kicking someone with high heels or steel toe boots
• Shooting someone with a BB, pellet guns or paintball guns
• Placing a pencil or pen against a person’s neck
• Hitting someone in the head or face with a cell phone
• Slamming or kicking someone’s head into a sidewalk
• Using a pillow in an attempt to smother someone

Assault with Force Likely to Produce Great Bodily Injury

Under California law, a conviction for assault by force likely to produce great bodily injury occurs whenever there is an assault with force that is likely to produce great bodily injury. The likely harm cannot be trivial or insignificant. It’s easiest to understand what constitutes great bodily injury through the following examples:

• Kicking or punching the head and body of someone lying defenseless on a ground
• Choking someone
• Pushing someone into the path of a moving ca2

There is no clear standard or guideline when someone has committed an assault likely to produce great bodily injury. To convict you, the District Attorney will have to prove beyond a reasonable doubt that the force you used was likely to produce great bodily injury. A conviction can be found even if no weapon is used. The force of a punch, the area being punched and other circumstances can be heard by a jury who then decides if the force was likely to produce great bodily injury.3California law does not require an actual injury for a conviction of assault.

Examples of Assault with a Deadly Weapon

Assault and battery are often charged together in criminal cases, but they are distinct and separate crimes. California appellate courts have upheld convictions of assault with a deadly weapon in the following types of cases.

• Pointing a gun at someone’s house but not shooting.6
• Shooting a gun at someone and missing.7
• Shooting a gun at someone with no intention of hitting them.8
• Purposely driving through a red light at a busy intersection that causes injury to another.9
• Threatening or shooting at people with a gas powered pellet pistol.
• Holding sharp pencil to someone’s neck.10
• Using a sidewalk as a weapon when someone is lying on it while being punched or kicked.11

California appellate courts have found the following to not be deadly weapons:

• A round and fragile butter knife that broke upon contact, 12
• Threatening to shoot someone with a non-functional toy pistol, 13
• Pointing an unloaded gun at someone with no threat to shoot it or hit someone with it.14

Common Defenses Against ADW Charges

In my experience, most charges involving weapons or fights arise from chaotic and confusing situations. Finding and demonstrating inconsistencies, exaggeration or lies will greatly strengthen your defense. Your strongest defense is shaped and tailored specifically to YOUR particular case facts.

Most defenses against assault with a deadly weapon stem from one of the following themes:

• You were acting in self-defense by protecting yourself or others.
• The person reporting you is lying or exaggerating to obtain a benefit for themselves. This occurs most often when there is an active or potential divorce or child custody case.
• You were not fighting and wrongly identified. This defense occurs most often in bar fights where a chaotic situation results in wrongful identification.
• You had no intention of using the weapon and there is evidence to support your intentions.15
• You were not holding a deadly weapon. This issue comes up most often in firearms or gun cases involving a toy or replica BB gun.
• Your assault would not likely have produced serious injury. This fact is usually determined by a jury after hearing all the evidence and the arguments of the prosecutor and your attorney.
• Your contact was not harmful or offensive. For example, you high five a friend really forcefully after the LA Lakers win a game and break their wrist. Even though you meant to high five your friend and an injury was suffered, you were not acting in an illegally harmful manner.
• You had no intention of hitting the other person.

Crimes Frequently Associated with Assault with a Deadly Weapon

There are often many additional crimes that are charged alongside or can replace PC §245. In many cases, these less serious crimes will result in significantly reduced imprisonment and fines. Given the facts of a case, the original charges could be dismissed and replaced with something less serious or you can be charged with multiple crimes at once and the weakest charges are then dismissed.

• Brandishing a weapon (Pen. Code, § 417, subd. (a)(2))
• Possession of a firearm Penal Code
• Misdemeanor assault (Pen. Code, § 240)
• Misdemeanor battery (Pen. Code, § 242)
• Assault with intent to commit a felony (Pen. Code, § 221)
• Battery with serious bodily injury (Pen. Code, § 243, subd. (d))
• Shooting at an inhabited building or occupied car (Pen. Code, § 246)

Final Thoughts

Any California felony criminal charge is a serious matter that you need to immediately address and begin preparing your defense. An effective legal defense should start immediately upon arrest. Your defense can involve many complex tasks, including preserving video evidence from a camera or cell phone, finding witnesses, or arguing an assault charge should be classified as a misdemeanor and not as a felony. In many assault cases, strong legal defenses are often built upon small details or facts that can be easily overlooked by police investigators or detectives.

Because your freedom and future are at stake, choosing the right lawyer to protect you is the most important step you can take. If you want to learn more about how I can help you, please call me at 562-304-5121 for a complimentary consultation and learn how I can defend your freedom and rights.