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.
What is Aggravated Assault?
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.
What are Considered Deadly Weapons Under California Law?
The California Penal Code section 245(a)(1) (PC) defines a deadly weapon as any weapon or object that is either inherently deadly or used in a way that makes it capable of producing force likely to produce great bodily injury or death. While obvious examples include a knife, brass knuckles, or a tazer, a deadly weapon could also be a vehicle, boots, a screwdriver, a rock, or even a toaster oven used in a dangerous manner.
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?
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.
What is the Sentence for Assault With a Deadly Weapon in California?
Assault with a deadly weapon may be charged as a felony or misdemeanor in California. This offense is publishable by up to one year in county jail as a misdemeanor. When charged as a felony, the crime 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 will always be a felony if the firearm is considered a semiautomatic, machinegun, assault weapon, or .50 BMG rifle. When a semiautomatic gun is used, the maximum sentence goes up to nine years, and if any of the other aforementioned firearms were used, the penalty can be as high as 12 years in prison.
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 a Peace Officer or Firefighter
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 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.
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.
Defenses to 245 (PC)
There are many ways your criminal lawyer may help you fight these serious allegations. 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. In other cases, he may argue that you were falsely accused or acted in self-defense or defense of others.
Another strong defense is to argue that the incident was simply an accident. For example, while it would be a crime to swing a baseball bat at someone’s head intentionally, it would not be a crime to swing a baseball bat in a batting cage if you did so without realizing someone entered the space behind you.
Similarly, to secure a conviction, the prosecutors must be able to show that even if someone was not injured, you had the capacity to cause them great bodily injury. If someone with a broken arm puts a pair of brass knuckles on the hand with the cast, they may be charged with having an illegal weapon, but cannot be guilty of ADW as there was no way they could actually use this weapon against the victim.
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 with 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.
Whatever your situation though, you should avoid speaking with the police without your defense lawyer present, as what you say may harm your defense later.
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:
- brandishing a firearm
- criminal threats
- possession of illegal weapons
- domestic violence
- hate crimes
- gang crimes
- failing to control a dangerous animal
- negligent discharge of a firearm
- possession of an unregistered firearm
- resisting arrest
- assault with caustic chemicals
- throwing an object at a vehicle
If you have been accused of assault with a deadly weapon or another form of aggravated assault, please contact criminal defense 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.