If you or a loved one is charged with California Penal Code 245(a)(a) PC assault with a deadly weapon, you want to put the best strategy together you can. I've been defending these cases for over 30 years, and I've seen all of the angles that can be utilized in an assault with a deadly weapon case.
First, you have to have a deadly weapon. Often, prosecutors charge cases where there's no deadly weapon, and they're trying to make everyday objects like a boot, a foot, a deadly weapon based on some facts related to the case. So, that's one thing we must look at to see if you were using a deadly weapon.
Another interesting angle concerns whether an assault with a deadly weapon is charged as a misdemeanor or a felony. If it is charged as a felony, ADW is a strike.
It's a violent felony, and you're probably facing prison time. If, on the other hand, it is charged as a misdemeanor, you're obviously in a much better position. So, we need to look at that as well. Some ask what causes a case to be charged as a felony or a misdemeanor. It turns on the following:
- The facts and circumstances of the case,
- What happened,
- What does your criminal record look like?
- What type of weapon did you use?
If you used a gun, you're much more likely to be charged with a felony assault with a deadly weapon than a misdemeanor. If you use a fork, on the other hand, and you have no criminal record, maybe there's an argument that it should be filed as a misdemeanor. Maybe there's even an argument that it should not be filed as assault with a deadly weapon.
Do You Have a Valid Defense?
Another thing to consider in these cases is whether you have a defense. If somebody is attacking you with a knife and you defend yourself with another knife, you may well have a good argument that it's self-defense and you should not be convicted of assault with a deadly weapon.
So, we need to look at the facts and circumstances surrounding your case, and then we can decide what type of defense makes sense for you.
What I have you do is – if the person is in custody, once I'm retained on a case and get all of the discovery – I review it. I look at everything. I speak to the prosecutor to see what their position is.
Then, I will go over everything with my client and get our game plan together. If, on the other hand, you're bailed out, we'll meet at my office under the cloak of the attorney-client privilege.
What Are the Common Mistakes?
This assault with a deadly weapon is an interesting charge because it's a wobbler so that it can be filed as a felony or a misdemeanor. If it's filed as a felony, it's a strike – a violent felony – and you're facing potential prison time. If it's filed as a misdemeanor, it's not a strike, and you'll be in a much better position.
I think the first common mistake is you don't want to plead to this particular charge as a felony because you don't want to have a strike on your record, and you'll serve 85% of any prison time. So, you want to get your attorney if you're guilty of the crime to get another offense. For example, a Penal Code 245(a)(4) PC is assault likely to produce great bodily injury. That is not a strike if you plead to it as a felony. It can later be reduced to a misdemeanor, and you end up with no strike on your record.
I've got clients, even before the three strikes law came into effect in 1994, who had pled guilty to assault with a deadly weapon as a felony. The case had been reduced to a misdemeanor and expunged. That's still a strike on their record. They don't realize that the fact that you plead to a PC 245(a)(1) as a felony will always be a strike. Even if you get it reduced. Even if you get it dismissed by way of an expungement so, if possible, don't make the mistake of pleading to a Section 245(a)(1) or any of the other 245's that are strikes.
So, I would say mistake number two is going to a weak attorney who doesn't have experience and doesn't know how to fight for you. You want to get an attorney who's been doing it for a long time and has been battle-tested and has dealt with a lot of assault with a deadly weapon case.
Review of All the Case Details
I encourage you to give me all of the information related to the case and be honest. Not providing your attorney with all the details is not a good strategy.
You want to make sure that I know what happened. We'll go over all of the good and bad things, and then we'll decide exactly how we will defend the case – whether it's one of those cases where we fight it.
We attack the prosecutor's evidence during the preliminary hearing. We also attack the prosecutor's evidence at trial and try to get a not-guilty verdict, or whether this is something that we need to mitigate and try to get a charge other than assault with a deadly weapon and try to get you probation instead of you being sent to prison.
So, if you or a loved one is charged with assault with a deadly weapon, you need some angles that work for you; I need to look at your case, facts, circumstances, and history.
I've worked for the prosecutors early in my career. I've worked for a superior court judge, and since the early 1990s, I've been a criminal defense attorney defending people like you. If you need the best, pick up the phone now. Ask for a meeting with Ron Hedding. I stand at the ready to help you. We offer a free case evaluation.