The key distinction for an assault with a deadly weapon case that makes it a strike versus a regular felony that can be reduced down to a misdemeanor, is whether or not the person admits that they actually used a weapon.
When the three strikes law originally came into being in the 1990s and assault with a deadly weapon was ruled to be a strike, the bottom line is that a lot of people had convictions for assault with a deadly weapon under California Penal Code 245 PC.
Then, how they decided which convictions were strikes versus which convictions were regular felonies, was by seeing at the time the person took the plea, whether or not they actually admitted that they used a weapon.
Defendant Admitting Use of a Weapon
So, a lot of times now, you'll see if the prosecutors want a strike on an assault with a deadly weapon case, they're going to make sure that they ask the person to admit that they used a weapon. And the weapon can be a lot of different things. It could be a:
- razor blade.
It could even be a boot, if you're stomping on someone for example. So, that's the key distinction when you're talking strike versus non-strike.
Strangely enough, I've had cases where the person originally admitted to a weapon use for an assault with a deadly weapon — and this is before the three strikes law even came into effect — and then their case was reduced to a misdemeanor.
Not only that, the case was expunged or dismissed. So, now they've got a misdemeanor dismissed case, they pick up a new felony case and the prosecutors are trying to charge them as a second strike case.
They are saying that case was a strike when they pled to it and it's still a strike, and the courts have ruled that that is still a strike, believe it or not, even though now it's a dismissed misdemeanor because they're going to look at the time the person pled.
ADW is a Violent Felony Crime
You have to understand, when you're talking about assault with a deadly weapon, it's a violent felony and it's a situation where somebody is typically using a weapon in order to commit a crime, and the prosecutors and judges don't like that; neither does the legislature.
So, they really don't have any sympathy for people who have a prior assault with a deadly weapon and now here they are again, doing something criminal. They don't care that the case occurred a long time ago.
They don't care you might have reduced it to a misdemeanor and they don't care that you've dismissed it. All they care about is that you're here in the criminal justice system again, you have a new case. They're going to see what they can do to punish you.
Because a lot of times for first defenses in assault with a deadly weapon case, if nobody's injured, the prosecutors will be reasonable depending on the circumstances in trying to resolve the case.
This is because assault means you probably didn't actually shoot anybody, stab anybody or hurt anybody, so you might be able to get a break.
But, when you come back before the court again, having gotten a break on an assault with a deadly weapon case in Los Angeles county, you're now looking at being punished, and if you have a prior strike and you pick up a new felony, you're looking at a second strike case.
A lot of times the minimum sentence you can get is 32 months because they're doubling the low term on a felony which would be 16 months because of the strike.
Call Hedding Law Firm If Charged with a Crime
So, if you've got an assault with a deadly weapon prior or you have a new assault with a deadly weapon case, you've got to get an attorney like me who's been doing this for 26 years and try and avoid that assault with a deadly weapon conviction.
If it's a new case, try to get some other crime that's not a strike and won't carry so much damage to you as a person and to your future. So, anything having to do with assault with a deadly weapon, strike, non-strike, misdemeanor versus felony — you've come to the right place.
Ask for a meeting with Ron Hedding. I stand at the ready to protect you, your rights, your freedom, your reputation and your career.
Hedding Law Firm is a criminal defense law firm located in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact us for a free case evaluation at (213) 542-0979.