Information on the crimes of assault with a deadly weapon can be found at California penal code section 245. There are several variations of assault with a deadly weapon (ADW) crimes, but the most common ADW charges include:

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• PC 245(a)(1) Assault with a deadly weapon other than a firearm

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• PC 245(a)(2) Assault with a firearm

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• PC 245(a)(4) Assault with force likely to produce great bodily injury (GBI)

 

To assault someone means to intentionally use force against another person in an effort to harm that other person and the amount of force used against that other person was reasonably likely to produce an immediate injury.

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Note: In assault cases, it does not matter if the defendant actually succeeded in injuring the other person. The act of trying to injure to another person is sufficient. For example, if a defendant purposefully shoots another person, but the bullet misses the other person, the defendant may be still be charged with assault with a firearm even though the other person was never it by the bullet (PC 245(a)(2).

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Assault with a deadly weapon other than a firearm is charged under PC 25(a)(1). PC 25(a)(1) includes knives, brass knuckles, bats, etc. (PC 245(a)(1)).

 

When a weapon is intentionally used by the defendant to harm another person, but the weapon used is not an inherently deadly weapon, such as a cell phone, lamp, pan, etc., the defendant might be charged with misdemeanor assault (PC 240).

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A firearm includes handguns, shotguns, zip guns, rifles, and more (PC 245(a)(2)). If the gun used to assault someone else is a machine gun or an assault rifle the defendant may be charged with such under  PC 245(a)(3) and the maximum prison exposure is raised to twelve years (More on assault with a deadly weapon penalties below).

 

Assault with means likely to produce great bodily injury (GBI) is charged where the defendant does not use a weapon, but rather, uses intentional force against a person that is reasonably likely to severely harm that person. For example, pushing someone down a flight of stairs (PC 245(a)(4). This means harm beyond moderate injury.

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Incarceration for PC 245

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Assault with a deadly weapon, or "ADW," may be charged either as a misdemeanor or alternatively as a felony ("wobbler" offense). The jail or prison sentence associated with a particular assault with a deadly weapon charge is as follows:

 

• PC 240: simple assault is charged as a misdemeanor. The maximum sentence is up to one hundred eighty days in the county jail

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• PC 245(a)(1): assault with a deadly weapon other than a firearm, or a vehicle, may be charged as a misdemeanor or as a felony. Misdemeanor PC 245(a)(1) carries a maximum one-year jail sentence. Felony PC 245(a) carries up to a four year prison sentence.

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• PC 245(a)(2): assault with a firearm may be charged as a misdemeanor or as a felony. Misdemeanor PC 245(a)(2) carries a maximum one-year jail sentence. Felony PC 245(a)(2) carries a maximum four-year prison sentence.

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• PC 245(a)(3): assault with a machine gun or assault rifle is charged as a felony. The maximum sentence for PC 245(a)(3) is twelve years in prison.

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• PC 245(a)(4): assault with force likely to produce GBI may be charged as a misdemeanor or as a felony. Misdemeanor PC 245(a)(4) carries a maximum one-year jail sentence. Felony PC 245(a)(4) carries a maximum four-year prison sentence.

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Note: In some cases, it might be possible to reduce a felony assault charge to a misdemeanor assault charge. Whether or not a reduction of any assault charge depends on the exact assault charge, the circumstances of the case, and the defendant's criminal history.

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Three Strikes Sentencing: An assault with a deadly weapon crime, which is charged either as PC 245(a)(1), PC 245(a)(2), or PC 245(a)(3), is considered a serious offense, as that term is defined under California's Three Strikes Sentencing Law. This means that these assault crimes are considered strike offenses. However, PC 245(a)(4) assault by force likely to produce GBI is not a strike offense.

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Suspended Prison Sentence: Suspended or split prison sentences are not available for any conviction of felony assault with a deadly weapon, which is charged under PC 245(a)(1) or 245(a)(2).

 

This means that if the defendant is sentence to serve jail time, and that jail is not made part of a probation sentence (See Probation Sentence), then the defendant may not have his sentence suspended (not served subject to out-of-jail conditions), and his incarceration may not be served "part time" on work release or house arrest.  

 

In addition, any incarceration for felony assault with a deadly weapon (ADW), which is not ordered as part of a probation sentence (See Probation Sentence), must be served in CA state prison, as opposed to a local county jail.

 

Probation Sentence: Probation is a period of supervision in lieu of an actual jail or prison sentence. Probation sentences carry terms of probation that must be followed in order to avoid an actual jail or prison sentence.

 

A probation sentence may be available in some assault cases charged under PC 245(a)(1), PC 245(a)(2), and PC 245(a)(3), but only if the judge finds there are unusual circumstances in the case that justify a probation sentence (as opposed to a prison sentence).

 

Note: A probation sentence after a conviction for PC 245(a)(4) assault with means likely to produce GBI, does not require a judge to find that there is unusual circumstance before granting a probation sentence.

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Crime of Moral Turpitude: Assault with a deadly weapon is crime involving moral turpitude, which means that the crime is considered to be morally wrong. Crimes involving moral turpitude carry special consequences for non-United States citizens and defendants who possess professional licenses, such as doctors, dentists, lawyers, nurses, teachers, etc.

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More Punishment for PC 245: In addition to any jail or prison sentence, criminal convictions for assault can lead to other severe consequences, including: harsh parole or probation terms, penalty fines and fees, civil lawsuits, restitution orders, restraining orders (criminal protective orders), employment loss, anger management classes, loss of rights, including the right to own a firearm, and more.

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Defense to PC 245

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Common defenses to an assault with a deadly weapon charge includes, insufficient evidence to prove the defendant intended to harm another person, intoxication, insanity, self-defense, defense of other people, statute of limitations (three years for felony PC 245(a)(1), PC 245(a)(2), and PC 245(a)(4)), mistake of fact, coerced confessions, illegal search and seizure, consent, alibi, and more. For more information on common defenses to PC 245, please visit Defenses to Crimes.

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If you are charged with any assault crimes, including assault with a deadly weapon other than a firearm, assault with a firearm, assault by means likely to produce GBI, or simple assault, contact our criminal defense attorneys today for a free consultation. Our team of successful and experienced attorneys, including experienced trial attorneys, will explain your rights and defense options. Call today!

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909-913-3138

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