Assault with a Deadly Weapon - California Penal Code Section 245
Johnny G was at a party with his girlfriend. A group of guys were standing around Johnny and were getting very rowdy. Johnny bumped into one of the guys and the man challenged Johnny to a fight. Johnny declined and he and his girlfriend left the party. As Johnny and his girlfriend drove away, they were surrounded by the group of guys. Johnny picked up a pair of brass knuckles that he had in the back of his car, walked up to the ring-leader, and socked the guy in the eye. Johnny broke the guy’s occipital bone. Johnny was charged with assault with a deadly weapon, the brass knuckles, and with inflicting great bodily injury. Johnny faced seven years in prison. I was able to convince the D.A. that Johnny was rightfully defending himself and his girlfriend and the D.A. reduced the charges to misdemeanor charge of possession of a deadly weapon with no jail time. After he completed probation Johnny was able to get his conviction expunged.
WHAT IS ASSAULT WITH A DEADLY WEAPON?
P.C. 245, or Assault with a Deadly Weapon, is an intentional act by one person that creates an apprehension in another of an imminent, harmful, or offensive contact using a "deadly weapon," or with force likely to cause great bodily injury.
To prove that the defendant is guilty of assault under PC 245, the prosecution must prove the following facts or elements:
- The defendant did an act that by its nature would directly and probably result in the application of force to another person;
- The defendant performed the act with a deadly weapon, or the act was such that it would result in force that was likely to produce "great bodily injury";
- The defendant’s act was willful;
- When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone; and
- When the defendant acted, he/she had the present ability to apply force with a deadly weapon, or force likely to produce great bodily injury.
EXAMPLES OF ASSAULT WITH A DEADLY WEAPON
Assault with a Deadly Weapon, or ADW, can be committed with various weapons, including, but not limited to guns, knives, baseball bats, glass bottles, hand and power tools, cars, and attack animals. As with simple assault, the attack need not be successful to result in a P.C. 245 charge.
Any of the following can result in a P.C. 245 charge:
- Bob and Phil are arguing in a bar over a debt. Bob hits Phil over the head with his beer bottle.
- Nick see's Alan, who is dating Nick's ex-wife up the street. There is much animosity between the two. Nick runs up the street and tries to push Alan into moving traffic.
- Mike is talking loudly on his cell phone at work. Jenny works in the next cubicle and has repeatedly told mike to keep his voice lower so she can concentrate. Mike keeps going and Jenny loses her temper, punching him hard in the face.
PENALTIES FOR P.C. 245
P.C. 245 ADW is a wobbler and can be charged as either a misdemeanor or a felony, depending on factors such as the type of weapon used and the injuries, if any, sustained by the victim.
A misdemeanor can result in the following penalties:
- 3 years’ Summary probation;
- Up to one year in county jail; and/or
- A fine of up to one thousand dollars ($1000.)
A felony can result in the following penalties:
- 5 years Formal probation;
- Two (2), three (3) or four (4) years in state prison; and/or
- A fine of up to ten thousand dollars ($10,000.)
Additionally, if great bodily injury occurs there may be an enhancement of 3 additional years in prison. If the weapon used was a motor vehicle, a conviction can result in a life-time driver's license suspension.
COMMON DEFENSES FOR P.C. 245
Not having used a deadly weapon or not having used force likely to cause great bodily injury:
If someone punches another most likely the force will not be sufficient to cause great bodily injury. However if someone was to punch another, take them to the ground, and then proceed to kick them repeatedly, the force would be sufficient to commit great bodily injury.
Self-defense or Defense of Others:
If the defendant reasonably believed that they or another individual was likely to suffer physical harm from an application of force from another party and the level of force used was proportional to the threat, then there is a defense against prosecution.
Lack of Intent:
A defendant who did not willfully intend to commit the assault can use the lack of intent as a defense against prosecution. A victim may have misinterpreted the actions of the defendant who was holding the weapon but had no intention of using it violently.
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