Assault with a deadly weapon is a charge that seeks to penalize those who bring harm to others by the use of a deadly weapon. The potential or actual injury of another are the dangers the law aims to punish. Therefore, an assault with a dangerous weapon charge comes with severe ramifications. You may face significant penalty sums or spend time behind bars. The team at The Los Angeles Criminal Defense Attorney offers representation to those handling assault with a deadly weapon charge. We start by providing information about what constitutes an assault with a dangerous weapon charge, the penalties for the crime, and the possible defenses that can be used in your case.
Assault with a Deadly Weapon Legally Defined
California’s Penal Code 245 (a) defines assault with a deadly weapon as a crime based on critical aspects. These aspects are referred to as the elements of the ADW (Assault with a deadly weapon) charge. Prosecutors must prove that:
- Your actions in their nature had the potential of resulting in a direct force on another.
- You either carried out the said act using a deadly weapon or the resulting force of your actions would have caused great bodily harm to another.
- You were aware that your actions would result in applying force to another and thus causing injury to the victim. In this matter, the standard of your awareness is that of a reasonable person.
- You had the present ability to use force that could result in significant bodily injury, or you could apply the force by using a deadly weapon.
- You willfully carried out the actions above.
Let us analyze each of the elements alluded to above to better understand the legal definition of ADW.
The Application of Force
Penal Code 245 (a) (1) defines the application of force as the offensive or harmful touching of another. This means that a simple touch will be considered a use of force if it is determined that it was done in an offensive or rude manner.
This definition introduces certain aspects you need to be aware of. Touching of the victim can be either directly or by the use of an object. Further, the force in question is also considered. Whether you were successful or unsuccessful in causing the force, what matters is that force was probable in your actions.
A Deadly Weapon
Any instrument or object whose use can result in significant bodily injury or death is a deadly weapon, according to Penal Code 245. In most cases, what comes to mind is a knife or a gun when a deadly weapon is mentioned. They are the top deadly weapons most people use. However, the definition allows for the consideration of any object as long as it could kill or result in severe bodily injury of the victim.
From the legal definition of a deadly weapon, the following are considered as some examples of said weapons.
- A vehicle, if it was used to run over the victim,
- An unloaded gun,
- A dog that acts on a defendant’s command,
- A bottle, if it was used to attack another, or
- A pen, if the defendant used it to stab another.
The list above is not exhaustive. All prosecutors need to show is that the object used could cause serious bodily injury or death. Therefore, it should not come as a surprise if the prosecution presents as evidence, the use of hands or feet as deadly weapons. If the force were significant to cause a fatality or great bodily injury, you would be culpable for the crime.
When it comes to severe bodily injury, the jury has immense discretion, thanks to the legal definition of severe bodily injury. The law defines the injury as significant or one that leads to grave physical harm. Any harm that fits this description as per the jury could get you convicted.
Willfulness speaks to your intentions. You may not deliberately break the law or hurt anyone with your actions. However, if you made a conscious decision to take the steps you took, you are criminally liable for an ADW charge. If you intended to break the law or hurt the victim, prosecutors would have an easier time convincing the jury.
Further, the court will also need to determine if you were aware of your actions. In that, they (your actions) could lead to a reasonable force on the victim, and not necessarily being aware that it would result in severe bodily injury.
Penalties for Violations of Penal Code 245
Violations of Penal Code 245 are wobbler offenses. It means that the prosecution may prefer misdemeanor or felony charges against you all pegged on the circumstances in your case. Specific aspects stand out and inform the decision by prosecutors of whether to prosecute your situation as a felony or a misdemeanor.
- The weapon, object, or instrument you used in the alleged ADW crime. The more dangerous the object, tool, or weapon used, the higher the chances of being charged with a felony ADW.
- Whether the assault resulted in injury and the severity of the hurt, thus shifting the ADW charges from a misdemeanor to a felony.
- If the victim was a public officer - Prosecutors will assess the victim to find out whether the victim was a police officer, firefighter, or any other protected person. If the victim were any of the above-listed people, the prosecution would prefer a felony charge for the crime.
- Any priors in your history affect your case. The prosecution will opt for felony charges if you have previous convictions.
Assault with a deadly weapon that is not a firearm attracts misdemeanor charges. If convicted, you may serve summary probation of no more than five years or spend one year behind bars. The courts may also require that you pay up to $1,000 in fines. Felony charges, on the other hand, attract a formal probation sentence. Alternatively, the judge may issue a prison term of two, three, or four years with fines not exceeding $10,000.
The use of a gun aggravates the case at hand. ADW cases with firearms as the weapon of choice are penalized differently. Such cases are referred to as assault with a gun. If an ordinary rifle were used, prosecutors would handle the matter as a wobbler with the same penalties enumerated above. However, in misdemeanor cases, you may have to spend no less than six months in prison. Conversely, if the weapon used was a semiautomatic rifle, machinegun, or an assault weapon, your case is no longer a wobbler but a felony matter. If convicted, your jail time increases to three, six, or nine years.
Penalties for assault with deadly weapons against firefighters and law enforcement officers are handled differently. The consequences in such cases are harsher. It is upon the prosecution to prove that:
- The victim, in your case, was a law enforcement officer, firefighter, or a public official and was carrying out their duties at the time of the assault.
- The defendant was aware or should have reasonably concluded that the victim was a firefighter, law enforcement officer, or a public official discharging their duties at the time of the assault.
The prosecution goes for felony charges if the circumstances of your case are the ones above. You would risk a jail term of three, four, or five if there were no firearm used in the crime. If you used an ordinary gun, you could face up to four, six, or eight years in jail. A prison sentence of five, seven, or nine years is preferred if a semiautomatic firearm was used. The jail time would increase to six, nine, or twelve years behind bars if you used an assault weapon, a machine gun, or a .50 BMG gun.
Any conviction of an ADW offense attracts a strike in your record over and above the penalties imposed above. The strike is given according to the Three-strike law in California. It requires any of the following aspects to be met before a strike is issued.
- That you committed an ADW on a firefighter, law enforcement officer or a public official,
- That you inflicted grave bodily injury on the victim,
- That you used a firearm in the commission of the assault against the official.
Having a strike in your records puts you in a difficult situation if you are convicted of a felony in the future. Your subsequent felony charge attracts twice the standard penalties for the crime. The prison terms change to 25 years to life in prison should you strike out by having a third strike in your record.
Possible Assault with a Deadly Weapon Defenses
Having an attorney in an ADW case is the first step to take in fighting the consequences of an ADW conviction. Their experience in the matter comes in handy in proving your innocence in the situation. Here is a look at some of the defense options your attorney may use.
- Your Actions Lacked Willful Intent
Actions that led to the injury are open to interpretation. The victim could have misrepresented your actions and probably exaggerated on your action’s intensity. It could also be that the assault was accidental. Both issues challenge the argument that you intended to assault the victim.
- Your Actions were in Self Defense or Defense of Others
Self-defense is a common defense argument. The prosecution often overlooks the danger the victim posed to you or another. However, for this argument to hold, the following need to be true.
- You believed that you or another risked being touched unlawfully or injured.
- You believed that the force used was reasonable to avert the danger you or another faced.
- The force used on the victim was reasonable.
- You did not Use a Weapon
You are only guilty of the crime if the prosecution proves that you used the weapon. Further, there should be no doubt that the force you used was enough to cause great bodily harm. It is also not clear as to the degree of energy that can result in severe bodily injury. Therefore, your attorney can raise questions on the force used to create reasonable doubt to the prosecution’s argument on the force.
- You are a Victim of False Accusation
It is common for people to be wrongly accused of assault cases. Jealousy, anger, and a misplaced desire for revenge push others to accuse defendants falsely of the crime. You may be wrongly identified as the perpetrator of the crime, or the victim exaggerates the facts of the case even if no one was hurt. Your attorney should be able to discover this wrongful identification and either provide witnesses that can attest to your good character or cross-examine witnesses to determine the truth.
Offenses Related to Assault with a Deadly Weapon
A prosecutor’s goals are to win cases and convict offenders. It is this reason that they seek out additional charges for the ADW offenses. These charges attract lesser penalties, and if added to the ADW charges, you may end up spending more time in jail or parting with more money in fines.
It is best to familiarize yourself with these charges. Your attorney will help defend you against them should they be brought against you.
Assault on a Public Officer, Penal Code 217.1 (a)
Assault on public officials carries severe penalties. Such public officials include police officers elected officials, judges and other officers of the court as well as firefighters among others. If you harm the officials or any member of their family, you are criminally liable for an assault offense.
The motive in an assault case on a public officer is critical. If it is determined that your actions were in pursuit of revenge, or retaliation to prevent them from discharging their duties, you will be held liable for the crime. If the assault was carried out and was not meant to hinder their ability to carry out their official duties, you are not guilty of the crime.
You may spend one year in jail and a fine of $1,000 if charged with a misdemeanor or sixteen months, two or three years in prison and/or a fine of $10,000 if convicted of a felony.
Simple Assault, Penal Code 240
The lack of evidence of a deadly weapon may inform prosecutors to charge you with a lesser offense, a simple assault matter, a violation of Penal Code 240. Similar to ADW cases, prosecutors need to prove that you willfully applied force on another and that an injury resulted from the force applied.
Violations of Penal Code 240 are misdemeanor offenses. The penalties attract a jail sentence of up to six months. You may be asked to pay $1,000 in fines for the crime.
Battery or Battery Causing Bodily Harm, Penal Code 242
Assault cases are often confused with battery matters. To many, they are the same thing. However, they are different. With assault cases, you can be criminally liable for the ADW offense if it is proven that there was a possibility of the victim suffering from an injury from your offensively touching them. This is whether your actions did result in harm or not. In battery cases or violations of Penal Code 242, you have to have used violence on another for you to be criminally liable for the offense.
Battery is considered a misdemeanor crime. A six-month jail sentence and/or a fine of $2,000 are the penalties the judge will issue for a battery or battery causing harm offense. Harsher punishments are imposed on individuals who inflict grave bodily injury on their victims. If you commit such a crime, you will have violated Penal Code 242(d). Should the prosecution pursue felony charges, you are looking at two, three, or four years behind bars.
Assault with Caustic Chemicals, Penal Code 244
Assault with caustic chemicals is best described as the malicious or willful tossing of dangerous substances to another to harm them. If prosecutors can provide evidence against you that meets the threshold of the definition above, you will be convicted for violating Penal Code 244.
Prosecutors need to demonstrate that the victim was exposed to the dangerous chemical you used in the crime. The quantity of said chemical is not interrogated. If found guilty of the offense, you are looking at a two, three, or four-year jail term.
Failing to Restrain a Dangerous Animal, Penal Code 399
You violate Penal Code 399 when you let a vicious animal on the loose to attack another. The prosecution will need to prove that you willfully let the animal loose with the intention of it hurting the victim in the case. It is expected of you to control your animals, especially if they are vicious. You may be held liable for the crime if you let your animals roam freely or not use reasonable restraint on them. The matter is aggravated if, in their freedom, the animals end up harming or killing someone.
Violations of Penal Code 399 are prosecuted as felonies or misdemeanors. Prosecutors will be looking for the death or injury of another in which case they will pursue felony charges. A three-year jail term and/or a fine of $10,000 penalizes felony charges. Misdemeanor charges, on the other hand, are punishable by a six-month jail sentence and/or a penalty to the tune of up to $1,000.
Brandishing a Firearm or a Weapon, Penal Code 417
Drawing, using or exhibiting a deadly weapon or a firearm in a manner that threatens the safety of others, is a violation of Penal Code 417. Prosecutors will be particularly interested in the way in which you exhibited the weapon. They will be looking for anger, rudeness, or treat-filled actions.
Violations of Penal Code 417 are misdemeanor offenses. A judge can only impose a prison term of either six months but no more than one year for the crime. With such light sentencing, most defense lawyers prefer charges for Penal Code 417 violations during plea bargain negotiations. The penalties are less severe than pleading guilty to ADW charges.
Throwing Dangerous Objects at Cars, Vehicle Code 23110 (b)
Any individual who throws an object to harm the vehicle’s occupants violates Vehicle Code 23110. You would be criminally liable for the crime even if you could not hurt the occupants of the car.
If a simple object were used, prosecutors would prefer misdemeanor charges, and you may end up facing six months in prison, or serve summary probation as an alternative to the jail sentence. You risk parting with $1,000 in fines. On the other hand, if the object in the matter is considered as dangerous, felony charges will be preferred against you. You will end up paying $10,000 in fines and spend up to sixteen months, two years, or three years in prison. You too have the option of serving formal probation for the offense.
Owning a Deadly Weapon to Commit an Assault, Penal Code 17500
Penal Code 17500 criminalizes possessing deadly weapons to attack another. Prosecutors can introduce this charge, especially if you own a deadly weapon such as a firearm. They can use this offense to show intent in the ADW case.
This crime is handled as a misdemeanor punishable by a fine of $1,000 and a jail term of six months.
It is best to note that any of the related charges enumerated above are only be introduced if the circumstances support the accusations.
Fighting ADW Charges with an Attorney Near Me
Hiring a criminal defense attorney is the best decision you can make. Assault with a deadly weapon is no easy case to handle, and consequences of a conviction are grave. However, an attorney will ensure that they carry out an independent investigation and mount a legal strategy to either exonerate you of the charges or have them reduced. This is the mission of the Los Angeles Criminal Defense Attorney’s team. Get in touch with us for a consult at 310-564-2605.