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Assault with a Deadly Weapon

California Penal Code 245(a)(1) P.C.

Assault with a deadly weapon typically involves a physical attack against another with an object capable of causing serious bodily harm or death.

What is an Assault with a Deadly Weapon Charge?

Under California Penal Code 245(a)(1) P.C., you can be prosecuted for the unlawful use of any deadly weapon, even if you did not actually injure the alleged victim. In general, any weapon, object or instrument that is capable of inflicting serious injury will be considered a deadly weapon, including firearms, baseball bats, beer bottles, brass knuckles, attack dogs, machetes, and automobiles.

So long as you harbored the general intent to carry out the act that could have injured, or did in fact injure the alleged victim, you can be convicted for Assault with a Deadly Weapon ("ADW"). For example, you could be charged with ADW if you angrily drove your car towards someone with the intent only to frighten and not injure him/her, regardless of whether or not you actually struck him/her. To secure a conviction, the prosecutor only needs to prove that you were aware that your act could have resulted in injury to the alleged victim.

Typically, the prosecutor will charge this crime as a felony, but he or she has the discretion to charge it as a misdemeanor, depending on the facts of the case and your criminal record.
(This is known as a "wobbler" offense.)

What are Examples of Assault with a Deadly Weapon?

Examples of ADW situations include the following:

  • Another driver takes your parking spot so you pop your trunk, remove a golf club, and shatter his/her driver's-side window while he/she is still behind the wheel;
  • After a drunken argument with your roommate, you lose control and strike him in the head with a beer bottle;
  • In a fit of rage, you attempt to frighten your ex-wife and her new boyfriend by riding your motorcycle at them. Although you didn't mean to hurt them, you lose control of the motorcycle and slam into them.
  • During a fistfight, you throw your opponent over your neighbor's fence, knowing that he has an extremely vicious guard dog that is all but certain to attack your opponent.
  • While attempting to collect a debt, you shove a pen into the ear of your debtor.

What Does the Prosecutor Need to Prove for an Assault with a Deadly Weapon Charge?

To prove that you are guilty of ADW under California Penal Code 245(a)(1) P.C., the prosecutor must prove beyond a reasonable doubt each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 875):

  • You committed an act with a deadly weapon (not a firearm) that would directly and probably result in the application of force to a person;
  • That force was likely to result in great bodily injury;
  • You performed that act willfully;
  • When you acted, you were aware of facts that would lead a reasonable person to realize that your act would directly and probably result in the application of force; and
  • When you acted, you had the present ability to apply this force.

What Happens If I am Convicted of an Assault with a Deadly Weapon Charge?

If you are convicted of ADW under California Penal Code 245(a)(1) P.C., you face the following punishment (excluding any sentencing enhancements):

  • Two, three, or four years in prison (if you are convicted of a felony). This is also a "strike" offense under California's Three Strikes Law (California Penal Code 667 P.C.), which could result in additional prison time. A strike offense also requires you to serve at least 85% of your sentence, even with good behavior; or
  • One year in county jail (if you are convicted of a misdemeanor); and
  • A maximum fine of $10,000 (felony or misdemeanor);
  • Probation of three or five years (felony, assuming prison is not part of the sentence, or misdemeanor);
  • Permanent ban (felony) or 10-year ban (misdemeanor) from possessing or owning a firearm;
  • Imposition of a protective order to stay away from the victim;
  • Possible anger management counseling (felony or misdemeanor);
  • Possible community service (felony or misdemeanor);
  • Court fines;
  • Possible loss of ability to obtain or maintain a professional license, loss of employment and educational opportunities, or adverse immigration consequences (if applicable).

What are My Possible Defenses to an Assault with a Deadly Weapon Charge?

Assault with a Deadly Weapon cases can often be resolved during the investigation stage even before criminal charges are actually filed. Specifically, a highly experienced and skilled Los Angeles County Assault with a Deadly Weapon attorney like Ninaz Saffari might be able to convince the investigating detective to not refer the case to the District Attorney's Office for prosecution, or to convince the D.A.'s Office not to file charges if the case has already been referred. These are called Pre-Files, which Ms. Saffari has a great deal of experience in successfully negotiating. See her Case Results.

If you are charged with Assault with a Deadly Weapon, Ms. Saffari will first conduct a thorough investigation, often with the help of her private investigator, to ascertain all relevant facts. Again, if possible, she will attempt to get the charges dismissed either before or shortly after they are filed. If she takes the case to trial, she will often use an expert witness who will argue that the alleged harm never occurred, did not occur to the degree claimed, occurred but was the result of an accident or unintentional conduct, or that the District Attorney has otherwise failed to provide enough evidence to meet the high threshold to prove Assault with a Deadly Weapon.

The following are the possible defenses to an ADW charge:

  • Self-defense of yourself or another person. For example, the alleged victim threatened you with force, attempted to assault you, or did in fact attack you or another person, and you reasonably believed you or the other person were in danger. Under California law, you are entitled to use force against someone to prevent wrongful injury to yourself or another. However, the force must be only that which was reasonably necessary to prevent the injury.
  • Lack of a deadly weapon. For example, you used an object or an instrument in the ordinary way in which it was designed; or the object or instrument was not inherently dangerous or deadly.
  • Lack of willfulness. For example, the injury resulted from an accident, misfortune or ordinary negligence.
  • False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
  • Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who committed the alleged ADW. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
  • Constitutional defenses. These include lack of probable cause, police misconduct (coerced confession, planted evidence, falsified police report, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
  • Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
  • The accuser and/or witnesses are not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.

What Kind of Assault with a Deadly Weapon Cases Has Ninaz Saffari Defended?

Since 2005, Ninaz Saffari has successfully represented hundreds of clients (adults and juveniles) against ADW charges, including both as felonies and misdemeanors. Some of her clients were facing decades in prison, as well as strike offenses. See her Case Results.

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If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County Assault with a Deadly Weapon criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).

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