Aggravated Assault Charges in California (245 (PC))

Though assault and battery are frequently confused with one another, assault typically only involves the threat or attempt to use violence, not the actual use of force. When someone elevates this threat or attempts to use force, the assault is considered to be aggravated, making it a potential felony offense filed under California Penal Code section 245 (PC). Assault with a deadly weapon, sometimes shortened to ADW, is a subsection of this law, detailed under California Penal Code section 245(a)(1) (PC), that involves the use of a dangerous weapon or object.

If you’ve been accused of aggravated assault in San Diego County or Vista, defense lawyer Peter Liss can help.

What is Considered Aggravated Assault in California?

Assault is charged when someone intentionally attempts to touch or harm another person. Aggravated assault is not a technical term under California law, but instead applies to more serious assault cases that are covered by 245 (PC). This law applies when someone intends to cause someone else serious bodily injury with no regard for the victim’s life by using force that would likely cause significant harm to the victim or through the use of a deadly weapon.

Defining Deadly Weapons Under Penal Code 245 (a)(1)

California Penal Code section 245(a)(1) (PC) defines a deadly weapon as any object that is inherently deadly or used in a way that makes it capable of producing force likely to cause great bodily injury or death. Obvious examples include a sawed-off shotgun, knife, brass knuckles, or taser, but a deadly weapon could also be a vehicle, boots, a screwdriver, a rock, or even a toaster oven if used dangerously.

Anyone who attempts to use an object to hurt someone in a way likely to produce great bodily harm can be charged with assault with a deadly weapon. Even siccing a dog on someone can be considered assault with a deadly weapon.

While caustic chemicals could often be considered deadly, assaults involving these substances are charged in a separate penal code, specifically 244 (PC), which is always charged as a felony crime.

What’s the Difference Between Simple Assault and Aggravated Assault? (240 (PC) Vs. 245 (PC))

To put it simply, aggravated assault can be filed whenever the amount of force someone attempted to use against another would be likely to result in significant bodily injury. When this standard is not met, the offense is considered simple assault. Aggravated assault is sometimes also called “felony assault,” though it is not always filed as a felony, because this helps distinguish these more serious offenses from simple assault, which is always filed as a misdemeanor.

For example, if you throw a punch at someone and miss, you are guilty of regular assault. On the other hand, if you tried to push someone from the roof of a skyscraper and they moved at the last minute, you could be charged with aggravated assault.

Assault charges can also be filed when someone threatens to use violence, even if they never actually attempt to use force. In California, assault with a deadly weapon charges are most commonly filed in cases where someone brandishes a weapon threateningly, as these instruments would likely cause serious injury if used.

In many cases, the line between assault and aggravated assault is very fine, and your defense attorney can help ensure the crime is charged as a simple assault so you can face less severe penalties.

Penalties for Aggravated Assault in California

Assault with a deadly weapon in California may be charged as a felony or misdemeanor. As a misdemeanor, it is punishable by up to one year in county jail. As a felony, it can carry a sentence of up to four years in prison.

While assaults committed with a gun typically carry the same sentences as those involving other weapons, the offense is always a felony if the firearm is a semiautomatic, machine gun, assault weapon, or .50 BMG rifle. Use of a semiautomatic raises the maximum sentence to nine years; use of any of the other listed firearms raises it to as much as 12 years.

Vehicular assault is a unique form of assault with a deadly weapon, as these offenses can also result in a driver’s license suspension or even a lifetime license revocation for felony offenses.

Aggravated Assault Against Police Officers or Firefighters

When someone commits assault against an on-duty police officer or firefighter, they can face increased penalties. In cases involving aggravated assault against one of these protected workers, the offense will always be a felony. The maximum penalty for this type of assault against a peace officer is five years.

However, when a firearm is used, the penalty can go up to eight years or, if the weapon was semiautomatic, nine years. In cases where a machine gun, assault rifle, or .50 BMG rifle is used against an officer, the maximum sentence is 12 years.

Legal Defenses to 245 (PC) Charges

Never speak to the police without your lawyer, as statements may later harm your defense. Your attorney can use several strategies, including:

You Were Falsely Accused

One person’s word usually isn’t enough to secure a criminal conviction in most cases—especially if you have any witnesses or other evidence to back up your side of the story.

Self Defense

Even if you absolutely did threaten someone with a deadly weapon, you cannot be convicted of this crime if you did so in an attempt to defend yourself or others.

It Was an Accident

A strong defense is to argue the incident was simply an accident. For instance, swinging a bat at someone’s head intentionally is a crime, but swinging a bat in a batting cage without realizing someone had entered the space behind you is not.

No Likelihood to Cause Great Bodily Injury

To secure a conviction, prosecutors must show that—even if no one was injured—you had the capacity to cause great bodily injury. For example, if someone with a broken arm puts brass knuckles on the hand with the cast, they may be charged with possession of an illegal weapon, but cannot be guilty of ADW, as there was no way they could use the weapon against the victim.

Plea Bargains

If there is ample evidence to prove your guilt, the best option may be to have your attorney negotiate a plea deal to reduce the charges against you or the sentence you may face.

Sometimes, the best defense is to argue that while you should face charges, you are guilty of a lesser crime. For example, because what is likely to cause significant bodily injury is a subjective standard, your attorney may be able to argue that the weapon or amount of force involved in the incident was not enough to cause great bodily harm. If he is successful, you may be found guilty of simple assault but not these enhanced charges, meaning you will face a lower penalty.

Related Offenses

Those accused of this crime may also face other criminal charges as well. Common criminal offenses charged along with assault with a deadly weapon include:

Frequently Asked Questions

Can a Human Body be Considered a Deadly Weapon?

Not in California. In California, a deadly weapon, by definition, must be something located outside of the human body. It can be something worn on the body, such as boots or brass knuckles though.

Does Aggravated Assault Count as a Strike?

Sometimes. Assault with a deadly weapon, firearm, or caustic chemicals counts as a strike on your criminal record, but otherwise, aggravated assault does not.

Charged With Aggravated Assault? Call a Defense Attorney Today

If you have been accused of assault with a deadly weapon or another form of assault, please contact criminal lawyer Peter M. Liss to discuss your case. You can schedule a free consultation to discuss the best defense for your situation and get more information on your charges by calling (760) 643-4050 or (858) 486-3024.