Assault with a Deadly Weapon

Assault with a deadly weapon, often referred to by its acronym "ADW," is a specific type of assault that carries harsher penalties for its commission. Specifically, when an assault is committed with any weapon or instrument that is capable of causing great bodily injury or death, the crime of assault with a deadly weapon has been committed.

Many different things can be deadly weapons, not just knives and guns. In the case of firearms, however, the Penal Code imposes harsher penalties, and even harsher penalties still, depending on the type of firearm used. If the victim of an assault is a police officer or firefighter, particularly if they are engaged in the performance of their duties, the harshest penalties may be imposed.

Under California law, assault with a deadly weapon can be charged as either a misdemeanor or a felony. The prosecutor has wide discretion in deciding what degree to charge.   In making that determination, the prosecutor will look at the facts of the case. If the offense was committed with a deadly weapon that can be found in most homes, such as a knife or a hammer, the assault did not result in any injuries or property damage and the defendant does not have any similar, prior convictions; it is more likely that the prosecutor will charge the offense as a misdemeanor. On the other hand, if the assault was committed with a weapon such as a firearm, it did result in some type of injury to a victim and/or the defendant has prior convictions for violent crimes; it is much more likely the offense will be charged as a felony. 

What is Assault:

The crime of assault is defined by California Penal Code section 240, and provides that an assault is committed when a person makes an unlawful attempt to commit a violent injury on another person, coupled with a present ability to inflict that injury.

There are two basic elements to the crime of assault. The first is an unlawful attempt. This generally requires some type of physical action, not merely a spoken threat of violence. The second is a present ability to inflict a violent injury on another person. For example, an unarmed, frail, elderly person attacking a professional bodybuilder in their prime, would generally not be considered as having a present ability to inflict a violent injury. In that case, the former may be capable of inflicting a violent injury on themselves, but not on the latter. 

Note that the crime of assault does not require actually causing injury to another person, the crime is committed when the attempt is made, whether or not it succeeds. Should an assault result in an injury to another person, then a battery has been committed. Battery is a separate crime, which carries its own penalties.

However, while a person can be charged with assault without actually committing a battery, if a person does commit a battery, they will generally also be charged with assault.   

How Does Assault With a Deadly Weapon Differ From Assault:

In simplest terms, assault with a deadly weapon differs from a simple assault in that the assault is carried out with a "deadly weapon or instrument." The Penal Code does not specifically define the term "deadly weapon," but it is generally understood that a deadly weapon is any weapon or instrument that is inherently deadly (such as a gun or knife) or any object that is not inherently deadly, but is used in such a way (i.e., used as a weapon) that is it is likely to result in great bodily injury or death.

A good example of an object that is not inherently deadly, but is likely to result in great bodily injury or death if used as a weapon, is a hammer. When used for its proper purpose, a hammer can, and often does, result in injuries to hands, thumbs and fingers. However, none of those rise to the level of "great bodily injury." If, however, a hammer is used as a weapon, and is swung with force at another person's chest or head, great bodily injury or death is likely. In that case, a hammer could be considered a deadly weapon.

Another example of something that could be used as a deadly weapon is a motor vehicle. It goes without saying that cars and trucks are capable of killing someone. Accidental deaths involving motor vehicles are a daily occurrence across the country. If, however, a motor vehicle is used in an attempt to intentionally injure someone, the driver can be charged with assault with a deadly weapon.

Virtually any object is capable of being considered a deadly weapon, depending on the way it is used, if it appears that the intent of the person using it was to inflict great bodily injury or death. However, the Penal Code does recognize a class of "less lethal" weapons in section 16780, which includes common self-defense weapons, such as pepper spray and stun guns.       

However, it is not necessarily required that a person use a weapon or other object to attack another person. The Penal Code provides that an assault committed "by any means of force likely to produce great bodily injury" can be charged in a similar manner to that of a person who uses a deadly weapon.

Assault By Means Likely to Result in Great Bodily Injury:

It may sound strange that a person could be charged with assault, even if they did not use a weapon. However, when a person commits an assault without a weapon (i.e., an unarmed assault,) but uses means of force likely to produce great bodily injury; the Penal Code treats that assault, essentially, as if it were committed with a weapon, imposing the same penalties.

The question here is whether the unarmed application of force by the defendant was likely to result in great bodily injury. As such, different factors will come into play, such as the age, size and mental and physical fitness of the defendant and the alleged victim, as well as any specialized training (such as self-defense or martial arts training) received by either the defendant or the alleged victim. If a court determines that given all the facts and circumstances surrounding the alleged assault, that the defendant acted to apply force sufficient to cause great bodily injury, then the defendant can be convicted, and suffer largely the same penalties as if they had committed an assault with a deadly weapon.  

Examples of Assault With a Deadly Weapon:

  • Two men get into a fistfight outside of a bar. After trading blows for a few moments, one of the men pulls out a semi-automatic firearm, points it at the other man and pulls the trigger. The gun does not fire because there was no round in the chamber. Before the man can pull the slide back to chamber a round, a police officer arrives and arrests the man. He is charged with assault with a deadly weapon because he attempted, but failed, to shoot the other man.

  • A married couple is having an argument in the kitchen of their home. After this goes on for a while, the husband tells his wife that he has been sleeping with her sister. The wife then grabs a frying pan off the counter and throws it as hard as she can at her husband but misses. Unfortunately for her, the couple has surveillance cameras set up throughout the house, including in the kitchen. The husband calls the police, and shows them the footage of his wife throwing the frying pan. She is then arrested and charged with assault with a deadly weapon.

  • A college student is at a party one weekend. After a while, the student decides he is bored so he gets in his car to leave. Just then, he sees another student arriving to the party on his bicycle. The student in his car thinks it would be funny to knock the other student off the bicycle with his car. The other student sees the car coming, and jumps off his bike just before the car hits it. Campus police see the incident and immediately arrest the student. The defendant is likely guilty of assault with a deadly weapon, with the motor vehicle qualifying as a deadly weapon.  

  • An amateur MMA fighter is having dinner with his girlfriend at a restaurant. Another restaurant patron sees the girlfriend and makes a comment about her breasts under his breath, thinking nobody else can hear him. However, the MMA fighter hears the comment and immediately confronts the patron. The fighter outweighs the patron, who has no martial arts training, by 75 pounds. The MMA fighter lunges at the patron, knocking him to the ground and putting him in a choke-hold. An off-duty police officer, eating at the restaurant sees the altercation, pulls his weapon and orders the fighter to release the patron. The fighter is then arrested and charged with both battery and assault by means of force likely to commit great bodily injury.  Even though, the fighter did not use a weapon, because of his martial arts training his application of force was likely to result in great bodily injury.

How Does a Prosecutor Prove Assault With a Deadly Weapon:

To prove that the defendant is guilty of assault with a deadly weapon under Penal Code Section 245, the prosecution must prove the following facts or elements:

  1. An act committed by the defendant, which by its nature, would directly and in all likelihood result in the application of force to another person;
  2. 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:"
  3. The defendant’s act was willful;
  4. When the defendant acted, he or she was aware of facts that would tend to cause a reasonable person to understand that his or her act would naturally, directly and probably result in the application of force to someone; and
  5. When the defendant committed the act, he or she had the real and present ability to apply force with a deadly weapon, or force likely to produce great bodily injury.

Aggravating Circumstances:

There are generally three different circumstances that worsen, or aggravate, an assault with a deadly weapon charge. These circumstances tend to prompt the prosecutor to seek more severe penalties when bringing charges. If aggravating circumstances are found to be at play in a given case, it is likely that the defendant will be charged with felony assault with a deadly weapon, and additional penalties may also be imposed.

  1. If the assault results in great bodily injury, meaning it resulted in a serious injury to the victim; then the prosecutor is more likely to charge the assault as a felony, and seek more severe penalties. In addition, the prosecutor can charge an enhancement for inflicting great bodily injury.
  2. If the assault was committed against a police officer, firefighter or individuals in other, similar professions, particularly if the assault occurred while they were performing their official duties; the charges are likely to be more severe.
  3. If a firearm was used in the assault, it is highly likely the assault will be charged as a felony, with enhanced penalties if the type of firearm was a semiautomatic, fully automatic or assault weapon.   

Penalties:

Assault with a deadly weapon is a type of crime commonly known as a wobbler. Meaning it can be charged as either a misdemeanor or a felony. The type of treatment it receives depends on the circumstances surrounding the crime.

Different factors, such as the type of weapon used and the injuries, if any, sustained by the victim, are all considered by the prosecutor, who then decides whether to proceed with misdemeanor or felony changes.

A misdemeanor can result in the following penalties:

  1. 3 years’ Summary probation;
  2. Up to one year in county jail; and/or
  3. A fine of up to one thousand dollars ($1000.)

A felony can result in the following penalties:

  1. 5 years Formal probation;
  2. Two (2), three (3) or four (4) years in state prison; and/or
  3. 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.

The nature of the victim of the assault can also result in additional penalties and increased prison time. Increased penalties are prescribed for assaults involving Police officers, firemen, traffic enforcement officers and a number of other occupations.

The use of certain weapons, particularly, semiautomatic firearms, machine guns and assault weapons also carry stricter penalties. Up to nine (9) years in prison can be imposed for use of a semiautomatic firearm, and as much as twelve (12) years in prison can be imposed for use of a machine gun or assault weapon.  

Defenses:

Not having used a deadly weapon or not having used force likely to cause great bodily injury:

In determining whether an object or weapon should be considered a deadly weapon, the court will look to both the typical uses of the object or weapon, as well as the manner in which it was used by the defendant. In the case of an object not normally used as a weapon, it may be possible to show that the way it was used in the assault was not likely to cause great bodily injury. If it's the case that the object is inherently a weapon, the assault with a deadly weapon charge could possibly be defended on the basis that the weapon is not inherently deadly, such as with pepper spray or a stun gun, and that the manner in which it was used was not likely to result in great bodily injury.

If someone punches another person, it is generally not likely that the force will be sufficient to cause great bodily injury.  However if someone was to punch another person, take them to the ground, and then proceed to kick them repeatedly, the force would be sufficient to inflict great bodily injury. Similarly, if a person has had specialized martial arts, or similar, training, and they commit an unarmed assault; that person could be charged as if they did possess a deadly weapon.

In defending against a charge of this nature, it may be possible to show that the person who committed the assault was not physically capable of inflicting great bodily injury, or to the extent that it was possible, it was unlikely. Any type of physical limitation or pre-existing condition could be useful in defending against the charge.

Self-defense or Defense of Others:

If the defendant reasonably believed that they or another individual were likely to suffer physical harm at the hands of another person, and the level of force they used to prevent that physical harm was proportional to the threat; then they can present that as a defense against prosecution. It is not necessary for the defendant to be factually correct that the person they were attempting to defend was in imminent danger of physical harm, only that they reasonably believed that to be the case.

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. A clear example of this type of defense would be if a person pulls an unloaded firearm (assuming they can show they knew it was unloaded at the time) points it at the alleged victim and pulls the trigger.

Actual Case:

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.

How We can Help:

David Foos has been aggressively fighting for the rights of the criminally accused for over 40 years.  David has a demonstrated record of success in defending against assault charges.  David works with a team of experienced investigators and will turn over every stone in developing a defense for you.  David is knowledgeable in the law, and will use this knowledge to obtain for you the best possible results in your case.  Contact Sacramento criminal lawyer David at 916-779-3500 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. Your first meeting will be at no cost to you.


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