Assault with a Deadly Weapon (ADW) under Penal Code 245(a)(1) is a significant charge and can seriously affect your life. This is a crime committed by the use of a lethal weapon or force that can inflict serious injury, even if no physical injury occurred. District attorneys often aggressively pursue ADW charges due to the potential for serious harm. It is essential to know what is at stake. No matter whether the incident was the result of a misunderstanding or a moment of conflict, the legal implications may be overwhelming.
California’s legal system is complex, and to ensure you have your rights safeguarded and an effective defense developed, you need a skilled lawyer. If you or a relative is facing an assault with a deadly weapon charge, contact CCLG: Los Angeles Criminal Attorney, and get professional advice and a team of experts who will fight your case to protect your freedom. Let us look at the offense in detail.
What is a Deadly Weapon?
A deadly weapon, as defined in Penal Code 245(a)(1), related to an assault with a deadly weapon (ADW) offense, is more extensive. Deadly weapons fall into two categories under the law.
- Inherently deadly weapons — These are objects that are meant to be harmful, like a gun, a knife, a dagger, or brass knuckles. They are considered dangerous because they are designed to cause harm. For example, when you are carrying a loaded gun or a switchblade in an argument, it is an inherently deadly weapon.
- Deadly by manner of use — This category encompasses anything that, depending on how you use it, might result in a serious bodily injury or even death. It is a surprisingly broad category. Ordinary objects, including a beer bottle, a car, a heavy book, a shod foot, or even a pillow, may be considered a deadly weapon with the way they are used.
For example, swinging a beer bottle against someone’s head, driving a car into a pedestrian, or hitting someone with a heavy book. Furthermore, a pillow used to suffocate someone shows how ordinary objects can become deadly weapons depending on context. The law is comprehensive because it is not the nature of the item that matters, but how you use it.
This broad definition allows prosecutors to claim that almost any item you carry and use with ill intent is a deadly weapon.
What a Prosecutor Must Prove Beyond a Reasonable Doubt
To prove that you are guilty of assault with a deadly weapon, as defined by Penal Code 245(a)(1), the prosecution must establish five elements beyond a reasonable doubt. All of them are critical in an ADW charge, and the inability to prove any of them can break down the case. Knowledge of these factors is critical in case you face these charges.
- An act that is likely to cause force — The state must prove you did an act that would probably and directly cause the force to be exerted against another person. Real contact will not be necessary. For example, swinging a bat or pointing a loaded gun will suffice as long as it is possible to apply force.
- Willfulness — Your act was willful. You did it willingly. ADW is a general intent crime, meaning that prosecutors do not have to prove that you intended to hurt somebody, only that you intentionally did the act. For example, willingly throwing a heavy object at someone fulfills this aspect even though you did not intend to strike them.
- Awareness — A sensible man in your shoes would know that the act might lead to the use of force. It is an objective criterion concerned with what an average individual would anticipate, not your mind’s thoughts. For example, when you threaten someone with a knife in an argument, it is a logical indication that there is a possibility of injury.
- Present ability — You were able to apply force with the deadly weapon or by means that are likely to produce great bodily injury at the time. This means that you could have performed the act at that time. For example, if you hold a loaded gun within range, you have this ability; an unloaded, non-functional gun might not qualify.
- A deadly weapon — Your action was committed with a deadly weapon (one that is inherently dangerous, like a firearm, or one that is used to inflict great bodily injury, such as a car) or force that is likely to cause great bodily injury.
Misdemeanor ADW vs. Felony ADW
Assault with a deadly weapon (ADW) under Penal Code 245(a)(1) is considered a wobbler, which is an offense that may be charged as a misdemeanor or a felony, depending on the facts of your case. This difference is crucial because a misdemeanor is less serious than a felony and has more severe legal implications. If you are charged with ADW, it is important to understand the wobbler effect because it determines the path of your case and the possible outcomes.
An ADW misdemeanor is usually charged in less grave cases, and a felony ADW charge is filed in severe cases. Prosecutors and judges take into consideration some of the following critical factors to determine how to charge you:
- The type of weapon you used — The type of deadly weapon is a significant consideration. Prosecutors will be more likely to charge you with a felony if you used an inherently dangerous weapon, like a firearm. A less lethal object, like a beer bottle, can trend towards a misdemeanor, depending on how that object was used.
- Level of injury — The level of any injury to the supposed victim weighs heavily in the decision. You are more likely to be charged with a felony when your action resulted in serious injury or had a high probability of causing great bodily injury. A minimal or no injury can help sustain a misdemeanor.
- Your criminal history — Your previous criminal record is also critical. If you have a violent criminal record or a prior conviction, you might be considered a more dangerous person by the prosecutors and be charged with a felony. A clean record may swing the case in the direction of a misdemeanor.
Misdemeanor or felony ADW is a decision that affects the case, including plea bargaining and trial approach. The prosecutors have a lot of discretion in charging, but judges can also alter the charge later depending on these factors. These dynamics are crucial in creating a defense that would question the direction of the prosecution and aim to reduce the severity of the charge. This is where knowing what factors can affect this decision can come in handy to make your way through the legal terrain.
ADW Using a Firearm
An assault with a firearm under Penal Code 245(a)(2) is a severe enhancement of an ADW charge, which is nearly always charged as a felony because of the obvious risk posed by firearms. Regardless of whether you had a handgun, shotgun, semi-automatic, or even an unloaded gun, this charge attracts significant scrutiny because the California law regards gun-related offenses as especially dangerous.
The prosecution does not have to establish that the firearm was loaded. It just has to demonstrate that you used it in a manner that could cause force. For example, holding a pistol to a person or pulling out a shotgun in a fight may be enough, even when no shots are fired and there is no harm done.
The perception of the case may be based on the type of firearm. The rapid-firing capability of a semi-automatic weapon may be perceived as more threatening than other guns, and thus it could influence prosecutorial decision-making. While the law may not always impose different penalties based on gun type, prosecutorial discretion may be influenced by the perceived threat level, for example, semi-automatic vs. shotgun. In some states, the laws may emphasize the differences, but California does not pay much attention to the type of gun.
This offense often leads to other legal ramifications, including sentencing enhancements based on personal firearm possession, which the prosecutors can use to enhance the case. When you are charged with ADW using a gun, prosecutors could argue that your actions posed a significant threat, making a felony charge nearly automatic.
The Penalties You Could Face If Convicted of Assault With a Deadly Weapon
The charge of assault with a deadly weapon (ADW) under Penal Code 245(a)(1) has serious consequences that can have a devastating impact on your life. Regardless of whether the offense is a misdemeanor or a felony, the consequences and the increased penalties in certain circumstances are serious, and the long-term effects are profound. The following is a clear breakdown of the penalties and collateral consequences you risk facing if convicted:
Misdemeanor Penalties
Provided that your ADW charge is tried as a misdemeanor, you could face:
- Up to 1 year in county jail
- A few years of probation, sometimes with conditions including community service
- Fines of up to $1,000
- Mandatory attendance of anger management classes. These compulsory classes deal with behavioral problems.
These punishments may interfere with your personal and professional life, and they may take time, money, and adherence to court orders.
Relationships and opportunities may also be affected by the stigma of a misdemeanor conviction.
Felony Penalties
A felony conviction of ADW increases the penalties to include:
- State imprisonment of 2, 3, or 4 years
- Fines of up to $10,000
Enhanced Penalties
For firearm use, the penalties per Penal Code 12022.5 include:
- Depending on the circumstances, like whether you discharged the firearm, 3, 4, or 10 years will be added to your sentence.
- If you inflicted significant bodily injury, Penal Code 12022.7 imposes an additional 3 to 7 years to the sentence if your action resulted in serious injury.
Lifelong Collateral Consequences
In addition to direct consequences, an ADW conviction has long-term effects:
- Permanent felony record — Employers, landlords, and licensing boards can see your permanent felony record, making it difficult to secure a job, a place to live, and professional licenses (medical, legal, or real estate credentials).
- Lifetime firearm ban — A felony conviction under California law prevents you from owning or possessing firearms, which applies to people who use firearms to make a living or in their personal lives.
- Immigration consequences — A misdemeanor ADW can result in deportation, exclusion from reentry, or citizenship ineligibility in the case of non-citizens, since it is frequently considered a crime of moral turpitude.
These collateral consequences continue to affect you even after your sentence has been served or you have finished your probation. It restricts opportunities and makes personal goals harder. The harshness of these penalties and their long-term consequences show the need for a robust defense to counter the accusations and defend your future.
Fighting an Assault With A Deadly Weapon Charge
An assault with a deadly weapon (ADW) charge can be overwhelming. However, with the help of a well-developed defense, the prosecution might have difficulties proving its charge and even have the case dismissed. The following are the most common and effective defenses:
Self-Defense or in Defense of Others
The most common defense employed in ADW cases is self-defense because it directly seeks to question the willfulness and justification of your actions. You have to demonstrate:
- Reasonable belief of imminent danger — You believed that you or another person would receive immediate harm. For example, it would be sensible to think you were being threatened when someone approached you with their fist raised.
- Proportional force — The force applied, like swinging a bat or waving a knife, should be relative to the threat. Firing a gun at an unarmed attacker can be considered to be excessive, which will undermine such a defense.
- No offender first — If you were the first to get into the fight, you might not be allowed to use self-defense unless you made a clear move to leave the conflict, like backing up and saying you do not want trouble.
For example, if you were in a bar fight and used a heavy object to defend yourself against an opponent, your lawyer can claim that you had to do that to defend yourself. This claim can be supported by evidence, including the statements of witnesses, surveillance videos, or injuries you received.
When asserting that you were defending others, this approach has similar rules, where you must demonstrate that you did so to protect another person, like a family member, under the same conditions.
This defense undermines the willfulness element by defending your intent.
No Deadly Weapon Was Employed
Legally, the deadly weapon aspect of an assault with a deadly weapon (ADW) charge is a strong defense approach. The core of this argument lies in the fact that the object in use has to satisfy the specific legal definition. To be deemed a deadly weapon, an object must be dangerous or be used in a way that is likely to cause significant bodily injury or death.
In your defense, you can argue that the object you used does not meet this definition. For example, a beer bottle or a car is not necessarily deadly. It is considered deadly only due to its use. Suppose you carried a bottle without swinging it or threw it somewhere where it would not likely injure anyone. Your lawyer might say that you had not used it to endanger persons. The same can be said about driving a car. When you drive a car around a person with a sufficient space between you and the person, and you do not use it as a deadly weapon, then you are not using it as one.
Your attorney would review the evidence found by the prosecution and present your own to dispute it. For example, the evidence concerning the object’s state, like a lightweight plastic bottle, or the testimony of the witnesses regarding your actions, could undermine the prosecution’s argument. This would provide evidence that would challenge the fifth aspect of ADW to generate reasonable doubt and result in a lesser charge or acquittal.
This defense approach focuses on the event’s particulars, not the argument that an assault occurred.
The Act Was Not Willful
Because ADW is a general intent crime, the prosecution does not have to show that you intended to cause harm, but only that you acted intentionally. When you assert that the act was not willful, this defense nullifies the element of willfulness in case your action was accidental.
For example, when you stumbled and dropped a tool that flew into the victim’s face, you did not intend to use force. Another situation would be when you accidentally drop a heavy object amid an argument.
Your attorney can use physical evidence, including the scene layout or witnesses’ testimony, to prove the act was unintentional. This defense is based on proving that your actions were not intentional.
No Current Capacity to Exercise Force
The prosecution should demonstrate that you could immediately use force with a deadly weapon. Without this power, the fourth element fails. For example, you could point a gun at someone, but only so far away that it would be physically impossible to use the firearm to exert force, or the gun was fake, that is, a plastic toy gun. In the same way, in case you swung a bat, but the alleged victim was out of reach, this defense is applicable.
The distance between you and the victim, video footage, or the state of the weapon, like an unloaded or faulty firearm, can confirm this point. This defense especially applies when the situation indicates that your actions could not have reasonably caused injury.
False Accusation and False Identity
Misidentification and false allegations are common in the chaos of a bar fight, domestic violence, or a crowded event. Someone may misidentify you as the aggressor because of confusion, prejudice, or malignancy.
Domestic violence is also characterized by competing stories where one party exaggerates or fabricates incidents. Your attorney will investigate by:
- Interviewing witnesses — This helps determine inconsistencies or bias in their testimonies.
- Examination of evidence — Viewing surveillance tapes and looking at photos or other physical evidence to prove your accuser’s allegations are false.
- Alibi or circumstance — Demonstrating that you were not at the scene or part of the action.
This defense challenges the prosecution’s entire narrative, whether you actually did the act or were even there. It is instrumental when the accuser’s credibility is weak or there is no evidence.
There Was No Injury
Even though lack of injury is not a complete defense, it can make a big difference in whether you will be charged with a misdemeanor or a felony. Because prosecutors and judges consider the degree of harm when determining the charges to pursue, demonstrating that you did not inflict any injury can convince them to charge it as a misdemeanor.
For example, swinging a bat or even a gun without hitting or shooting anyone weakens the case for a felony. Using medical reports, witness statements, or video footage, your lawyer can point this out, claiming you did not seriously threaten anyone. Although this does not nullify the legal factors, it can lessen the severity of the charge, which will affect the plea bargaining or sentencing. Your attorney could argue that the lack of physical injury would reduce the severity of the offense. This may convince the prosecutor to present a lesser plea, where the charges are based on minor crimes like simple assault or carrying a weapon, as opposed to a deadly assault.
Find a Criminal Defense Attorney Near Me
Being charged with assault with a deadly weapon may be daunting, and the outcome may change your life. With the intricacies of the law, including the definition of a deadly weapon and the nature of a wobbler offense, you need a strategic defense to save your future.
Call CCLG: Los Angeles Criminal Attorney today and let our team guide you and help you settle on a strong legal defense to protect your rights. Call us at 323-922-3418 for further assistance.
