California Penal Code 245(a)(1) PC defines the crime of assault with a deadly weapon as when a person attacks, or attempts, to attack someone with a deadly weapon, not a firearm, or by means likely to result in a great bodily injury.
This statute is commonly called just “ADW” and typically used by prosecutors after there was an illegal attempt to cause injury on somebody with the use of a deadly weapon.
So, what is considered a “deadly weapon?” While there is no hard definition, it's almost any item that can be used as a weapon to cause a serious injury, such as a knife, razor blade, baseball bat, among many other items.
For example, let's say two men are fighting and one of them pulls out a knife and attempts to stab the other man. In this scenario, they could be charged with violating PC 245(a)(1).
The violent crime ADW statute is a California “wobbler,” meaning the prosecutor can charge the case as a misdemeanor or felony crime. Penal Code 245(a)(1) is defined it as follows:
- “Anybody who commits assault on someone with the use of a deadly weapon or instrument, other than a firearm, shall be punished by imprisonment in a state prison up to four years, or county jail for one year, or by a fine up to $10,000, or both jail and a fine.”
To give readers more detailed information, our Los Angeles criminal defense attorneys are reviewing the laws below.
Is ADW a Misdemeanor or Felony in California?
As noted above, assault with a deadly weapon under Penal Code 245(a)(1) can be charged as a misdemeanor or felony crime.
If the ADW case is initially charged as a felony, it can still be reduced down to a misdemeanor crime:
- through plea negotiations with the prosecutor, or
- Penal Code 17b PC motion to reduce in court.
If you are convicted of misdemeanor ADW, then you are facing up to one year in the county jail and a $1,000 fine.
If convicted of a felony ADW, the penalties include includes two, three, or four years in a California state prison and a $10,000 fine
Assault with a deadly weapon is always a straight felony if the victim was a police officer or firefighter, and the penalties include up to five years in prison.
If a firearm was used, then the penalties increase to up to 12 years in prison.
Assault with a Firearm – Penal Code 245 (a)(2) PC
Penal Code 245(a)(2) PC assault with a firearm is a closely related offense and this statute is used by prosecutors when someone specifically used a firearm:
- a misdemeanor conviction will require a minimum of six months in a county jail, but there is no minimum jail sentence for a PC 245(a)(1);
- a felony conviction carries a penalty of two, three, or four years in a California state prison and fines.
Penal Code 245(a)(3) PC addresses the use of certain dangerous firearms, such as machine guns and other serious assault weapons.
If the prosecutor can prove a specific type of assault with the regulated firearms, the PC 245 charge is also a straight felony that carries an increased sentence of four, eight, or twelve years in a state prison.
Additionally, if a semi-automatic firearm was used in the assault, it's also a straight felony crime that carries a sentence of three, six, or nine years in prison.
Penal Code 245 (a)(4) Aggravated Assault Charges
Another related statute, Penal Code 245(a)(4) assault by means likely to produce a great bodily injury (GBI), which is commonly called “aggravated assault.”
Under subsection (a)(4), it must be proven the defendant used sufficient force on the victim that was likely to produce a GBI, which means a significant injury.
While this statute falls under the umbrella Penal Code 245 assault with a deadly weapon, the prosecutor doesn't have to prove the defendant was armed with a weapon.
Put simply, you can be charged with violating PC 245(a)(4) PC if you assaulted someone with your bare hands if it involved a significant level of force. Against a victim.
What are the Related California Crimes?
- Penal Code 417 PC – brandishing a weapon,
- Penal Code 243(b) and (c) – assault on police officer,
- Penal Code 217.1 PC – assaulting a public officer,
- Penal Code 240 PC – assault,
- Penal Code 242 PC – battery,
- Penal Code 664/187 PC – attempted murder.
What Am I Actually Facing if Charged with Assault with a Deadly Weapon?
There's a lot of assault with a deadly weapon cases charged in Los Angeles county. You're typically facing a lengthy prison sentence:
- especially if the deadly weapon was a gun,
- especially if the crime involved some sort of gang violence, and
- certainly is somebody was seriously injured.
But these assault with a deadly weapon cases have more than meets the eye a lot of the time.
First and foremost, it's a wobbler crime, which basically means it can be charged as a felony or a misdemeanor. So, a lot of times you see not so egregious charges being filed as felonies that really should be misdemeanors.
We've been very successful in knocking weak assault with a deadly weapon cases down to misdemeanor cases. If you're charged with a misdemeanor, you're no longer looking at prison. You're also not looking at a strike.
Typically, assault with a deadly weapon is a strike pursuant to the three strikes law of California. However, if it's charged as a misdemeanor, it cannot be a strike.
Review of the ADW Circumstances
You also have to look at the conduct. What's going on? Sometimes, someone will become angry, display a gun and threaten to shoot another person. That's certainly going to be viewed upon as very serious.
If, on the other hand, somebody's attacking another person and they assault them with their foot and hurt them, that may not be as serious, especially if you have a potential self-defense claim, you we have to look at the circumstances of the case.
I've seen PC 245(a)(1) assault with a deadly weapon in LA County filed for a variety of different reasons.
- Somebody could become angry and are driving a vehicle and ram their vehicle into another vehicle or swerve toward somebody;
- You can hit somebody with your hands and be charged with assault with a deadly weapon, especially if you end up hurting the person seriously;
- Using a knife is another big area where we see assault with a deadly weapon charges be filed.
The interesting thing about assault with a deadly weapon is, you don't have to make contact with the person. You don't have to hurt them.
If you display a gun in a menacing manner, you pointed it at that person, you just assaulted them with a deadly weapon.
You'd be looking at prison. You'd be looking at a strike and you'd be looking at a whole host of other problems that you obviously don't want.
Best Defense Strategy for ADW Cases
So, your best strategy if you're charged with assault with a deadly weapon is to hire somebody like me who's been practicing in LA county for nearly three decades and have handled hundreds of these cases and have had very successful results.
Sometimes is a case where we're going to fight the case all the way through a jury trial and we decide that when we sit down and meet and talk about whether or not you've got a defense that can win.
Other times we're going to be negotiating. The prosecutors have the evidence. We have to make sure that we mitigate things and get character letters and do everything we possibly can to mitigate it down.
Sometimes we can mitigate it down to a misdemeanor. Sometimes we can set it up to have it mitigated down to a misdemeanor depending on the circumstances — depending on:
- whether you have a criminal record;
- what type of a weapon was involved; and
- the circumstances of the crime.
So, if you or a loved one is charged with assault with a deadly weapon in Los Angeles county, pick up the phone. Ask for a meeting with Ron Hedding. I stand at the ready to help you. Hedding Law firm is based in Los Angeles County with two office locations, including 2049 Century Park E #2525 Los Angeles, CA 90067.
