Assault with a deadly weapon may also be referred to as “ADW” or “aggravated assault” and is codified under Penal Code Section 245. PC 245 defines assault with a deadly weapon as attacking another with a weapon (other than a firearm) or with force that is likely to cause great bodily injury. Examples of conduct that may fall under PC 245 may include stabbing another person with a knife or throwing a glass bottle with the intention to hit another person.
Penalties Associated with Assault with a Deadly Weapon Charges
Assault with a deadly weapon is a “wobbler” offense, which means that the prosecution may levy a PC 245(a)(1) charge as either a misdemeanor or a felony. There are numerous factors that a prosecutor will review before making a filing determination, including but not limited to: type of weapon used, the extent of any harm or injury, prior criminal record (or lack thereof), and other contextual factors.
When California Penal Code 245 is charged as a misdemeanor, conviction carries a maximum penalty of one year in the county jail while a felony conviction of assault with a deadly weapon may lead to up to four years in the state prison. Furthermore, when PC 245(a)(1) is charged as a felony, a conviction may constitute a “strike” under California’s Three Strikes Law if the defendant did in fact use a deadly weapon in the commission of the crime or if the defendant did not use a deadly weapon but instead utilized force likely to cause great bodily injury and the victim did in fact suffer great bodily injury. Great bodily injury or “GBI” may be defined as injury above and beyond minor harm.
Different but sometimes related charges may include brandishing a weapon under California Penal Code 417, failing to control a dangerous animal under California Penal Code 319, assault under California Penal Code 240, or battery under California Penal Code 242.
Possible Defenses to Assault With a Deadly Weapon
There are numerous prospective defenses to an assault with a deadly weapon charge.
The Conduct Was Not Intentional
One such defense would be that the conduct was not intentional. An example of an unintentional act would be a scenario where someone was playing baseball in a public park and threw the bat reflexively after hitting the ball and before running to first base. In this example, the batter would likely not be found guilty of assault with a deadly weapon under Penal Code 245, even if he hit an innocent bystander (assuming the batter did not intend on hitting anyone when throwing the bat).
Self Defense or Defense of Others
Another common defense to an assault with a deadly weapon charge is “self-defense” or “defense of others.” Self-defense occurs when one has a credible belief that they were subject to imminent danger of suffering bodily harm and that the response is appropriate and proportional to the prospective danger. An example of self-defense in the context of a PC 245 allegation would be a scenario where a homeowner uses a baseball bat to strike a gun wielding intruder over the head based upon his fear the perpetrator may shoot him. Under the same circumstance, the homeowner may be able to assert a defense of others claim if he was using the baseball bat to disarm the intruder as he was pointing the gun at his daughter. In short, under defense of others, one may step into the shoes of another and use the same degree of force that the endangered person would have been justified in utilizing if they were able to protect themselves.
Another defense to a PC 245 charge may be misidentification on the part of the victim or any witnesses. This is distinguished from defenses that question individual elements that must be necessarily proven to prove the commission of the crime. For example, a defense to assault with a deadly weapon may constitute simply disputing that a deadly weapon was ever utilized. This kind of argument might prevail in a circumstance where a water gun was used to squirt someone in the eye. While this action may be unwanted or even painful, it probably does not constitute the use of a deadly weapon or force likely to produce great bodily injury.
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