Assault with a Deadly Weapon (ADW) is an action intended to cause injury or great bodily damage to another individual and is committed with any type of deadly weapon or by using force. The mere act or intent is chargeable and therefore you can be charged for intending to use the weapon. The charge of attempting to commit assault is valid even without causing any harm to your targeted victim.

Depending on the circumstances, assault with a deadly weapon charge which is known as a wobbler, can either be charged as felony or misdemeanor. This charge primarily depends on the type of weapon or intended weapon deemed to have been used to commit assault with a deadly weapon despite the lack of injury or degree of injury and physical status of the victim involved.

The requirements for an assault with a deadly weapon conviction is for the judge to determine whether the perpetrator acted in self-defense, with malice or without the intention to cause bodily harm to anybody. The prosecutor is charged with the task of proving that assault with a deadly weapon occurred while the defense is tasked with proving your alleged innocence or reducing the assault with a deadly weapon charges depending on whether or not prosecutors have proof of that you used a deadly weapon to harm your victim or you used potential force intended to harm your victim.

One of the most serious crimes in California is assault with a deadly weapon. California Penal Code on Section 245(a) (1) and (2) states that if convicted of felony assault with a deadly weapon or firearm you are liable for a sentence with a maximum of four years in jail and up to $10,000 in fines. Additionally, you are likely to get a strike on your criminal documentation under California law. Vista Criminal Attorney Law Firm will give you the defense required depending on the nature and circumstances of your charge.

Meaning of Assault with a Deadly Weapon per the California Law

The crime of assault with a deadly weapon is guided by the California penal code section 245. It is when a weapon or extreme force is used to cause damage to another person or when great bodily injury is evidently caused on another individual. When you engage in a physical activity that makes another person to reasonably believe that you were about to harm them, you are likely to be found guilty of assault with a deadly weapon. A deadly weapon is any object capable of inflicting serious injury during the assault, for example; knives, guns, sticks, pen etc.

Weapons as Defined Under Assault with a Deadly Weapon Law

Weapons, as defined in this charge, are not limited to what you normally regard as a weapon. It also takes into account a good number of objects. For instance, a weapon can be as small as a screwdriver or as big as a vehicle yet even enticing a dog to bite your victim is considered amongst the category of weapons.

The Difference Between Assault and Assault with a Deadly Weapon

Assault and Assault with a deadly weapon (ADW) are most times assumed to mean the same charge. In California law, an individual can be accused of assault or assault with a deadly weapon depending on the circumstances. Assault is charged under California penal code, section 240 as an attempt to commit a vicious injury on someone or the unlawful threat or attempt to cause corporal injury to some other individual. Assault with a deadly weapon is charged under California Penal Code on Section 245 as the attempt to cause grave bodily harm using a deadly weapon. It attracts a charge of 2-4 years in jail and or up to $10,000 in fines. Therefore, you are also liable to pay your victims restitution and also have your weapon confiscated as well as receive a strike on your record. This depends on the degree of harm caused, the type of weapon, and the victim involved.  Therefore, typically assault with a deadly weapon is considered to be a harsher crime.

Charges to Assault with a Deadly Weapon

Misdemeanor Charges

Under misdemeanor charges, the prosecution should determine that you caused bodily harm using a weapon but the bodily damage of the victim is not considered grave. In this category too, the intent to cause bodily harm to other people is the key factor and can be charged despite no evident harm. These types of charges result in a maximum of a one-year jail term.

Subsections of Felony Charges

Different subsections of Penal Code 245 constitute assault with a deadly weapon without a firearm.  Section 245(a) (1) covers for assault with a force which is likely to produce great bodily injury. When convicted of assault with a deadly weapon, your charge is considered felony and you are liable to face the utmost of four years in jail with a fine of up to $10000.

The penalties are severe if arrested and presented in court for assaulting a public servant undertaking their duties in enforcing the law or assaulting disaster response agents. Such people include lifeguards, firefighters, emergency response officers, or animal handling officers. In case you assault an individual employed under any of these departments while you are aware of the positions they occupy, you will get further terms in a county facility totaling to one year and an increased $2000 fine.

Code 245 (a) (2) takes into consideration, the firearm intended to be used or its actual use to cause death or severe harm to the victim. The penalties issued for this section depend on the type of weapon. Use of Generic firearms in a California law can either be a misdemeanor or felony as per the sentence circumstances.

A strike is added to your record only if it’s established that assault with a deadly weapon occurred. The use of force producing great bodily injury is not considered under the 3 Strike Law. Despite the clear distinction, both can attract the same penalties and state jail terms.

What to Expect When Charged With an Assault with a Deadly Weapon Charge

Assault with a deadly weapon alleges that you used a weapon or intended to use a weapon to cause grave bodily injury to another person whether it is a misdemeanor or felony charge. It's not unusual for a Vista courthouse district attorney to impose what are stern charges requiring a state prison sentence. Therefore, you need to get representation with the assistance of an experienced attorney in order to defend yourself against these charges. Ultimately through good representation, some of these charges can be reduced to a misdemeanor from a felony, with probably no state jail time.

For a conviction, the prosecution should first prove that you indeed assaulted the person using a deadly weapon. Use of force, in this section, means any physical contact which is displeasing or harmful. It includes surprisingly, a touch which may seem to you as negligible but significant if it is conducted in a rude or offensive way. Furthermore, it is not necessarily that the malicious deed is done face to face – it can involve using an item to hit the said victim. Interestingly, malicious words are not enough evidence to convict you regardless of how hurting they may be to the other party. Therefore, it cannot be used as proof for assault charges and hence, an individual cannot be confronted with charges for assaulting verbally. Still, you want to be careful what you say since, if you make any threat to the other party then you may be liable for other criminal charges such as a criminal threat.

Whether the case against you is a misdemeanor or felony, expect a twist of events depending on your defense and the prosecution. It’s imperative to keep abreast of the case at hand so that you are well informed of expected prosecution charges and how your defense attorney will defend you. Since this charge is known as a wobbler, you cannot know what you will be charged with until formal charges have been brought against you. Remember, a misdemeanor may end up as felony and felony may be downgraded to misdemeanor depending on the circumstance.

To be convicted under California Penal Code section 245, the prosecution should be able to prove beyond a reasonable doubt that you committed an assault or intended to commit assault with a weapon on someone else, either with intent to cause that person harm using a deadly weapon or a firearm. Therefore, your intent and force may be deemed likely to generate a severe bodily injury or death to the complainant. A deadly weapon in this context does not refer to an obvious item like a knife or firearm. It can practically be any object depending on how you use it, for instance, a beer bottle or a motor car.

Legal Defenses for an Assault with a Deadly Weapon Charge

A criminal defense attorney may raise these main legal defense points against an assault with a deadly weapon charge in order to aid in your defense depending on the circumstances.

A False Allegation Against You

Your Attorney can argue that the allegations against you are false by providing proof of witnesses and actual events that exonerate you of the felony crime of intending or actually using a weapon thereby causing great injury to another individual. It is not likely for you to be sentenced of ADW if you did not have in your possession any type whatsoever a weapon or anything deemed to be one. On the other hand, in case you did not administer force possible to produce an injury, your defense attorney can affirm that you are not liable for violating section 245 of the penal code.


You Took Action in Self-Defense or to defend a Loved One

Self-defense is another argument that would be in your defense as presented by your attorney but only if you can show cause as to why your action was in your own defense or the defense of another person.

You can only claim that you were defending yourself if;

  1. You believed beyond certainty that you were in instantaneous risk of suffering grave injury or untimely death.
  2. Your instinct to engage force was essential to ward off your presumed aggressor at that point in time.
  3. You used reasonable force that was necessary to guard against that alleged threat.


Involuntary Action

Reduced charges can be given when the action you took was involuntary or unintentional with solid evidence that your action was not intentional or willful. Even though your conviction does not necessarily have to capture that you caused no injury to the victim, proving your lack of intent can be cumbersome. Additionally, your actions could be deemed unintentionally if, for instance, someone accosted you and was likely to immediately cause harm to you or persons near you.


False Accusation

You can be wrongly accused of a crime by mistake when people fail to positively identify a suspect.

We also harbor grudges and malicious motives and due to these factors, an individual, for instance, a jilted spouse may accuse you unfairly of this crime seeking retribution. An experienced attorney will be able to successfully present this argument before the court.


Factual Impossibility

If based upon the facts presented to the court, it was physically impossible for you to have committed the crime presented before the judge; furthermore, the action that triggered your allegations may have been accidental or may have been misinterpreted by the alleged victim.

Offenses Related To Assault with a Deadly Weapon

Violation of Penal Code 245 Assault with a deadly weapon is closely related to the following charges:


Simple Assault which is under penal code 240 PC is related to assault with a deadly weapon and only differentiated by use of deadly weapon or lack of it. Otherwise, they both intend to willfully cause bodily damage to other persons and besides that, both are charged as misdemeanor crimes or felony offenses depending on the situation and case specifics.

Brandishing a weapon

The California Penal Code 417 states that it is criminal to draw or brandish a weapon or firearm in anger on another person. Making such exhibitions is an offense and the punishments depend on if:

  1. The firearm was unloaded PC 417 (a) 2A attracts a misdemeanor with a ninety-day maximum jail term.
  2. The firearm was loaded PC 417 (b), PC 417.3 attracts a felony charge.

The charge of brandishing a weapon or firearm and intentionally harming another person can wobble between a misdemeanor and a felony.


The penal code on section 242 is invoked when the defendant used brutality against someone else. It is viewed as misdemeanor misconduct and is punishable by a jail term totaling to half a year and/or 2000 dollars in fines to the court. Nevertheless, if your actions lead to severe harm on the said victim you might face penal code 245(d) battery resulting in significant injuries. If this is the case, you may end up getting a felony or misdemeanor charges.

Assault Against a Public individual

In regards to the California laws, a Penal Code 217.1 (a) charge is invoked if taken to court for assaulting a protected individual either physically or by thwarting their effort to execute their formal responsibilities. Examples of such individuals are state employees or federal officials. This offense is chargeable as a misdemeanor or felony, with the misdemeanor charge attracting up to a year in a county jail or a $1000 dollars in fines or both. If charged for a felony assault on a public servant, the punishment will include up to a three year jail period and/or ten thousand dollars in fines.

Assault with Corrosive Chemicals

California Penal Code 244 PC which is assault using corrosive chemicals involves throwing or smearing whichever form of harsh chemical on an individual aimed at disfiguring or harming them. The crime is often judged as felony demanding punishment of 2-4 years’ incarceration in a state facility and/or ten thousand dollars in court fines.

Throwing an Item at a Motorized Vehicle

If it is alleged that you threw objects or any items at auto vehicles in public highways, you will face the charges pursuant to the California Vehicle Code 23110 VC. This is regardless of if you used force or not while committing the act. This offense is often judged as a misdemeanor unless it is determined that the items you hurled at the vehicles caused severe harm to any persons or were meant to result to injury to the victims or damage to their property. In such a case, this offense automatically becomes a felony.

Frequently Asked Questions Related to Assault with a Deadly Weapon

What Is California’s Three Strikes Law?

Usually, a felony conviction of assault with a deadly weapon is considered a “strike” under California’s Three Strikes law. The law requires a sentence for a felony with a prior conviction to get double the typical term on the crime

How Is Assault with a Deadly Weapon on “Protected Persons” Treated?

Your felony conviction will significantly make your penalties have extra implications in case your victim is listed among protected persons like public officers.

What Are the Other Implications on an Assault with a Deadly Weapon Charge?

You may be required to take anger management classes for your misdemeanor, make restitution to the said victim and have your weapons confiscated. Therefore, you may lose your right to own a gun and might be deported if you are not lawfully in the United States.

Find an Assault with a Deadly Weapon Attorney Near Me

First off, it’s important to remember that assault with a deadly weapon also encompasses intentional threats or trying to harm another person with a deadly weapon. Thus, you could find yourself on the wrong side of the law after threatening a person you were harmlessly angry at.  Therefore you need legal representation even if the accusation captures the mere intention of a threat. Our Vista criminal defense attorney can help you aggressively fight the charges against you so do not hesitate to call us today at 760-691-1551.