§ 245(a)(1) PC – Assault with a Deadly Weapon (ADW)

Penal Code § 245(a)(1) PC (assault with a deadly weapon) is defined as attacking or attempting to attack another person with a weapon capable of causing death or great bodily injury. Prosecutors can charge this offense as a misdemeanor or a felony, carrying up to 4 years in jail or prison.

Assault with a deadly weapon is often referred to as

• “ADW,”
• aggravated assault, or
• Police Code 245.

Examples

• trying to stab someone with a broken beer bottle.
• throwing a hammer at someone in a fight.
• telling a pit bull to attack a person.

Defenses

• you acted in lawful self-defense,
• the object was not a lethal weapon,
• your actions were not willful,
• you were falsely accused, and/or
• you were involuntarily intoxicated.

Penalties

The following table summarizes the punishments for California ADW crimes.

Assault Crime	California Sentence
ADW without a firearm	Misdemeanor: Up to 1 year in jail and/or up to $1,000 or Felony: Up to 4 years in prison and/or up to $10,000
ADW with an ordinary firearm (revolver, pistol, etc.)	Misdemeanor: 6 months to 1 year in jail and/or up to $1,000 or Felony: Up to 4 years in prison and/or up to $10,000
ADW with a semiautomatic firearm, a machinegun, an assault weapon, or a .50 BMG rifle	Felony: Up to 12 years in prison
ADW of a police officer or firefighter	Felony: Up to 5 years in prison without a firearm or up to 12 years in prison with a firearm

Our California criminal defense lawyers will explain the following in this article re. ADW charges:

• 1. Elements
• 2. Defenses
• 3. Sentencing
• 4. “Three Strikes” Implications
• 5. Immigration Consequences
• 6. Record Expungement
• 7. Gun Rights
• 8. Statute of Limitations
• 9. Related Offenses
• Additional Reading

1. Elements

California Criminal Jury Instruction “CALCRIM” 875 spells out the elements of assault with a deadly weapon.¹ For you to be convicted of violating PC 245(a)(1), prosecutors must prove beyond a reasonable doubt the following five elements of the crime:

1. you performed an act that, by its nature, would probably result in the direct application of force to someone else,
2. you performed that act with either a lethal weapon, or with force that was likely to produce “great bodily injury,”
3. you performed the act willfully,
4. when you acted, you were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person, and
5. when you acted, you had the present ability to apply force with a lethal weapon, or force likely to produce great bodily harm.²

These elements are discussed in more detail below.

“Application of Force”

The definition of “application of force” is any harmful or offensive touching, even if it is slight.³

An assault with a lethal weapon can occur even if the touching was done indirectly – for example, causing an object to touch the “victim.”⁴

It is not even necessary that you succeed in applying force to the other person. All that is required is that:

• you took some action that,
• would probably have resulted in force being applied to the other person.⁵

Example: Jenny throws several rocks (deadly weapons) at her neighbor in anger. Only one rock barely touches the neighbor’s sleeve. Here, Jenny could be charged with ADW: She acted willfully, the rocks were potentially harmful, and one slightly touched the neighbor.

Note that a charge could still be brought if none of the rocks hit the neighbor. No force has to actually be applied for an ADW charge.

“Deadly Weapon”

A “deadly weapon” is any type of weapon or object which is capable of producing death or great bodily injury.⁶ This definition includes the obvious lethal weapons such as:

• guns and
• knives.

Though other objects can be deadly weapons if they are used in a way that could kill someone or cause them substantial harm. Some examples include:

• an unloaded gun (if used to club or hit someone),⁷
• a bottle (if used to attack someone),⁸
• a pencil (if used to stab someone),⁹
• a BB gun,¹⁰
• a dog that will attack humans on command,¹¹
• a car (used in an attempt to run someone down),¹²
• a baseball bat or any blunt object (if used to hit someone), and
• brass knuckles (if used to punch someone).

“Great Bodily Injury”

California law defines great bodily injury as:

• significant, or
• substantial physical injury.

This means something greater than minor harm.¹³ Examples of great bodily injuries are:

• broken bones,
• gunshot wounds,
• dog bites,
• lacerations, and
• black eyes.

“Willfully”

Under this law, you act “willfully” if you do something willingly or on purpose. It is not necessary that you intended to:

• break the law,
• hurt anyone, or
• gain any advantage.¹⁴

Example: During an argument, Mark grabs a broken glass bottle and throws it near Anthony. The bottle ricochets off a fence and hits him.

Even though Mark never intended to hit Anthony with the bottle, he still committed ADW. All that matters that Mark purposefully threw the bottle in his direction.

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with ADW. In our experience, the following ten defenses have proven very effective with judges, juries, and prosecutors at getting these charges reduced or dismissed.

You Were Acting in Self-Defense

To win on a self-defense claim for PC 245 a 1 charges, we would show the prosecutors that you:

• believed that you were in “imminent danger,”
• believed that force was necessary to stop the danger, and
• used an appropriate level of force in defense.¹⁵

Helpful evidence we frequently rely on includes surveillance video, eyewitness accounts, and medical expert testimony.

Example: Kelly is walking home at night when a man jumps out from an alley and says he is “going to make her feel right.” Kelly grabs a brick and throws it at the man. Even though Kelly technically assaulted the man with a lethal weapon, she is not guilty because she acted in self-defense.

There Was No Deadly Weapon

We typically support this defense by highlighting certain facts to show the object you had was not deadly. We may also hire a weapons expert to testify that the object you used does not qualify as deadly.

If we can show the rod, pipe, glass, or other object you wielded was not deadly, the D.A. may agree to reduce the felony assault charge down to simple assault.

There Was No Willful Act

The most effective defense Shouse Law Group relies on in ADW cases is to show that you had no criminal intent. The reason is that intent is not something tangible that can be shown to a jury, and we use that to our advantage when raising a reasonable doubt to the prosecutor.

Perhaps, for example, you committed an act by accident and without a specific purpose. Or maybe we can call upon a medical expert to show that you were in the midst of a medical episode such as a seizure where you could not control your movements.

We have a long track record of poking enough holes in the state’s case so that they are forced to drop the charges for lack of solid proof.

You Were Falsely Accused

If you may have been falsely accused of ADW, our law firm compiles all the available evidence to impeach the accuser’s credibility. This typically includes voicemails, text messages, emails, and eyewitness accounts.

Once we show the D.A. that the accuser has motivations to lie (such as anger, jealously, or revenge), the state’s entire case may fall apart. Then they may have to dismiss the charge or at least offer up a favorable plea bargain.

You Were Involuntarily Intoxicated

If someone spiked your drink or forced you to get drunk or high without your consent, you may be able to claim involuntary intoxication. Alcohol and drugs can cause anyone to become violent, though you should not be held accountable if you did not purposely get intoxicated.

Note that voluntary intoxication is typically not a defense to ADW charges. Even though you may not have been in your right mind during the assault, the court will blame you for knowingly getting intoxicated in the first place.

You Were Insane

The insanity defense can work if we show you had a mental disease or defect where you:

1. did not understand the nature of your criminal act or
2. could not distinguish between right and wrong.

This defense is most effective if you have a history of mental illness and copious medical records showing mental health problems.

You Are the Victim of Mistaken Identity

Perhaps the accuser wrongly picked you out of a lineup. This is not unusual, especially if the incident occurred in the dark with a masked assailant.

In these situations, we rely on alibis, GPS devices, and video surveillance to place you away from the scene of the crime. We can also call upon character witnesses to vouch for you and testify that you would never be violent.

The Police Violated your Rights

In many cases, the police’s own body-cam and dash0cam footage contains all the evidence we need to demonstrate their misconduct.

If the police in your case performed an illegal search or a false arrest, coerced your confession, or entrapped you, we can ask the judge to dismiss your charges or at least suppress any evidence the police unlawfully obtained.

You Acted Under Duress or Necessity

If any reasonable person in your situation would have committed the ADW because:

• someone physically threatened them or
• there was an emergency situation that called for it,

then the prosecutors may agree to drop your charge. This is another situation where we rely heavily on video footage and eyewitness accounts.

You Were Not Physically Capable of Committing ADW

Assault crimes require a certain degree of strength and mobility. If you suffer from a medical condition such as severe Parkinson’s disease or any other neuro-muscular disorder, prosecutors would have a hard time proving beyond a reasonable doubt that you could assault anyone.

In these cases, medical records are critical evidence.

3. Sentencing

ADW without a Firearm

ADW without a firearm is a wobbler, meaning a prosecutor can charge it as either:

• a misdemeanor, or
• a felony.

The D.A. is more likely to bring misdemeanor charges when:

• The weapon was not inherently dangerous,
• There were no serious injuries,
• You have a clean criminal record, and/or
• There were no other aggravating circumstances.

If charged as a misdemeanor, ADW without a firearm is punishable by:

• misdemeanor (or summary) probation,
• custody in county jail for up to 1 year, and/or
• a maximum fine of $1,000.¹⁶

If it is a felony charge, the offense is punishable by:

• felony (or formal) probation,
• imprisonment in state prison for 2, 3, or 4 years, and/or
• a maximum fine of $10,000.¹⁷

ADW with a Firearm

If an ADW was committed with an ordinary firearm such as a revolver or pistol, then the offense is still charged as a wobbler. The penalties are the same as those outlined above. The only change is that misdemeanor convictions carry a minimum jail term of six months.¹⁸

ADW with a semiautomatic firearm is a felony carrying a prison sentence of three, six, or nine years. For an ADW conviction committed with:

• a machine gun,
• an assault weapon, or
• a .50 BMG rifle^,19

the felony penalties include a prison term of four, eight, or 12 years.²⁰

ADW on a Police Officer or Firefighter

Assault with a deadly weapon is charged as a felony if:

1. the alleged victim was a peace officer or firefighter, and
2. you knew or reasonably should have known this.²¹

If the weapon is not a firearm, the prison sentence is three, four or five years. If the weapon is an ordinary firearm, the sentence is four, six, or eight years.

Note that if the weapon is a semi-automatic firearm, the prison sentence is five, seven, or nine years. If the weapon is a machine gun, an assault weapon, or a .50 BMG rifle, the sentence is six, nine, or 12 years. ²²

Restraining Orders

If you assaulted an on-duty retail establishment employee, PC 490.8 allows the court to issue a two-year restraining order barring you from entering the store.

4. “Three Strikes” Implications

The following table illustrates whether a particular ADW conviction counts as a “strike” in California.

Penal Code § 245(a)(1) PC Offense	Strike Under California’s 3 Strikes Law
Misdemeanor	No
Felony: You did not use a deadly weapon; instead, you used “force likely to produce great bodily injury;” and The victim did not sustain great bodily injury.	No
Felony: You did not use a deadly weapon; instead, you used “force likely to produce great bodily injury;” and The victim did sustain great bodily injury.	Yes
Felony: You used a deadly weapon. (It does not matter whether the victim sustained great bodily injury.)	Yes

Learn more about California’s Three Strikes Laws.²³

5. Immigration Consequences

ADW is an aggravated felony. Therefore, non-citizens who are convicted of it face being deported.²⁴

If you are an immigrant, contact an attorney as soon as possible after your arrest. They may be able to get your ADW charge reduced to a non-deportable offense.

6. Record Expungement

If you are convicted of ADW, you may be able to get a criminal history expungement provided you complete:

• probation, or
• a jail term (whichever is relevant).

Penal Code 1203.4 PC says an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.²⁵

7. Gun Rights

A felony ADW conviction strips you of your gun rights for life. A misdemeanor conviction carries a 10-year gun ban.

However, it may be possible to restore your gun rights through a Governor’s Pardon.

8. Statute of Limitations

In California, prosecutors have three years from the date of the alleged assault with a deadly weapon to file criminal charges. Meanwhile, the alleged victim of the ADW has two years to bring a civil lawsuit against you.²⁶

There are situations where the statute of limitations can be extended (such as if the victim is a minor), so speak with an attorney about where you stand.

9. Related Offenses

1. Assault on a police officer or emergency personnel (PC 241)
2. Assault on a public officer (PC 217.1)
3. Assault with caustic chemicals (PC 244)²⁷
4. Attempted murder (PC 664/187(a))
5. Battery causing serious injury (PC 243(d))
6. Brandishing a weapon or firearm (PC 417)
7. Failing to control a dangerous animal (PC 399)
8. Resisting an executive officer (PC 69)
9. Simple assault (PC 240)
10. Simple battery (PC 242)
11. Throwing dangerous object at a motor vehicle (CVC 23110(b))²⁸

Note that in some cases, you may face federal charges in addition to – or instead of – California state charges.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Commitment – Evidence of Character – Assault with Deadly Weapon – Impeachment of Witness – Criminal Law Magazine and Report.
• Criminal Law: Assault with Unloaded Gun – Criminal Law Review.
• Human Immunodeficiency Virus as a Deadly Weapon: Proposing a California Assault Law That Recognizes HIV as a Deadly Weapon – Thomas Jefferson Law Review.
• Assault-Related Conduct under the Proposed California Criminal Code – Hastings Law Journal.
• People v. Chance: Analyzing the Assault Statute’s “Present Ability” Requirement – Berkeley Journal of Criminal Law.

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