Assault with a Deadly Weapon

Assault with a Deadly Weapon (ADW) is a very serious charge that carries very serious consequences. A defendant who is convicted faces a possible sentence of several years in State Prison, thousands of dollars in fines, and a strike on his/her record under California’s Three Strikes Law. Additionally, if convicted of felony ADW, you will lose your right to vote, your right to own and possess a firearm, the ability to obtain many jobs, and your right to obtain certain types of government benefits.

If you face charges of ADW, it is very important that you have strong legal representation from an experienced and skilled attorney knowledgeable in charges of ADW to fight your case. The attorneys at McDowell Defense have years of experience fighting for clients who face ADW charges in California and helping them to achieve the best outcome possible. If you have been charged with Assault with a Deadly Weapon in California, contact McDowell Defense at (213) 401-2322 right away for a free consultation with one of our attorneys and get the representation you need.

ADW Charges
Assault with a Deadly Weapon under California Penal Code section 245 (PC 245) is an assault committed either:
With a deadly weapon, OR
By means of force likely to cause Great Bodily Injury (GBI)

In order to convict a defendant of Assault with a Deadly Weapon in California under PC 245, the prosecution must prove all of the following beyond a reasonable doubt:

The defendant did something that was likely to result in the use of force against someone else

The defendant performed this act with a deadly weapon OR the act was likely to result in force likely to cause Great Bodily Injury

The defendant did so willfully

The defendant was aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person

When the defendant acted, s/he had the ability to apply force to the other person

NOTE: The difference between simple assault and ADW is simply the use of a deadly weapon or force likely to cause great bodily injury.

Penalties
Assault with a Deadly Weapon may be charged as a felony or as a misdemeanor depending on the circumstances of the case and the defendant’s criminal history. Circumstances that factor in include:
The type of weapon or instrument used to commit the assault (i.e. more severe penalties for a firearm)

Whether the victim suffered any injury and how great the injury was

Who the victim was (i.e. Law Enforcement or other protected person)

Misdemeanor ADW – Not a Firearm
Summary Probation
Up to 1 year in county jail, and/or
Fine up to $1,000

Felony ADW – Not a Fiream
Formal Probation
2, 3, or 4 years in State Prison, and/or
Fine up to $10,000

ADW with a Firearm
Although ADW with a firearm carries more severe penalties, it still may be charged as a misdemeanor or a felony if it only involved an “ordinary firearm.” The difference here, however, is that a misdemeanor ADW with a firearm carries a minimum sentence of 6 months in county jail.
If, however, the ADW with a firearm involves a semiautomatic gun, machine gun, assault weapon, or .50 BMG rifle, the charge with ALWAYS be a felony.

Felony ADW with a firearm penalties are:
Semiautomatic
3, 6, or 9 years in State Prison
Machinegun, Assault Weapon, .50 BMG Rifle:
4, 8, or 12 years in State Prison

ADW on a Law Enforcement Officer or Firefighter
California ADW law imposes harsher penalties if the victim is a peace officer or firefighter engaged in the performance of his/her duties and the defendant knew or reasonably should have known the victim was an officer or firefighter engaged in performance of his/her duties.

Penalties if no firearm used:
3, 4, or 5 years in State Prison

Penalties if firearm involved:
Ordinary Firearm:
4, 6, or 8 years in State Prison

Semiautomatic:

5, 7, or 9 years in State Prison

Machinegun, Assault Weapon, .50 BMG Rifle:
6, 9, or 12 years in State Prison

Note: All ADW on a law enforcement officer or firefighter trigger a lifetime ban on owning firearms. This also bans anyone in your home from owning a gun, even if you do not have access to it.

ADW With Use of a Motor Vehicle
A car, truck, or even motorcycle can be a deadly weapon when used in a manner that could cause someone great bodily injury. If convicted of ADW by use of a Motor Vehicle, you can lose your driver’s license FOR LIFE! If you lose your driving privileges in California, due to the interstate driver’s license compact, you will not be able to get a driver’s license in any other member state. This is a harsh penalty. It will affect every aspect of your life. If you are charged with ADW by use of a Motor Vehicle, it is imperative that you seek representation by an experienced ADW attorney.

ADW Under California’s Three Strikes Law
If a defendant has a strike ADW on his/her record before being charged with any felony in California, the defendant faces TWICE the normal sentence for the subsequent felony.
If the defendant accumulates three strike convictions, s/he faces 25 years to life in State Prison.
ADW can be a strike under California’s Three Strikes Law if the defendant:
Inflicted GBI on someone in the commission of the ADW
Personally used a firearm in the commission of the ADW, OR
Committed ADW against a peace officer

Definitions
Application of Force
Force is defined as any harmful or offensive touching. Even the slightest touching can count if done in an offensive manner.
Even in an assault with a deadly weapon, there does not need to be touching, and touching need not cause an injury. The touching does not even have to be direct. For instance, it still may be an assault with a deadly weapon if you cause an object to touch someone.

Deadly Weapon
A deadly weapon is any object, instrument, or weapon used in a manner that makes it capable and likely to produce death or great bodily injury to the victim. This means that objects not typically thought to be weapons may be considered deadly weapons.
Note: Hands and feet are NOT considered to be deadly weapons. A defendant may still be convicted under PC 245, however, if s/he uses his/her hands and/or feet in a manner likely to produce great bodily injury.

Great Bodily Injury
GBI is defined as significant or substantial physical injury. It must be more than just a minor injury or harm. With such a broad definition, criminal juries often determine what is considered to be GBI.

Willfully
Willfully only means that you did the act on purpose. It does not matter if you intended to break the law, harm anyone, or gain any advantage.

Aware that the Act Might Lead to the Application of Force
You only need to be aware that there is a good chance your actions will lead to the application of force. You do NOT need to actually intend to apply the force.

Legal Defenses to ADW Charges
If you have been charged with Assault with a Deadly Weapon in California under Penal Code section 245, McDowell Defense can help. Powerful legal defenses to PC 245 ADW include:
Did NOT use a deadly weapon
Did NOT use force likely to cause GBI
Self-defense or defense of someone else
Lack of Intent – You did not act willfully
Inability to inflict force/violence on the other person
You have been wrongfully accused