Assault with a Deadly Weapon - California Penal Code 245(a)(1)

California Penal Code Section 245(a)(1) defines the crime of assault with a deadly weapon. The common name of this statute can sometimes lead to confusion. A Penal Code 245 prosecution can not only commence when someone uses a dangerous or deadly weapon to attempt to injure someone else, but also in some circumstances where no weapon is used at all. 

Assault with a deadly weapon under PC 245(a)(1) is also commonly known as “ADW” and defined as unlawfully attempting to injure another person by the use of a deadly weapon.

A “deadly weapon” is any item that can be used as a weapon that can likely inflict a great bodily injury. These items include knives, guns, swords, razor blades, brick, bottles, and many others.

Common ADW examples include attempting to stab someone during a fight or quarrel and throwing a brick at another person during a verbal argument. Another example includes a road rage incident.

This article explores some common scenarios in which a defendant might find themselves charged with a violation of California Penal Code Section 245(a)(1), some of the most common defenses, and the penalties provided for under California's criminal laws.

To give readers a better understanding, our Los Angeles criminal defense lawyers are providing a detailed review below.

ADW Filed as Either a Misdemeanor or Felony Crime

Penal Code 245(a)(1) is a California “wobbler” which means the prosecutor has the discretion to file the criminal case as either a misdemeanor or felony offense.

Under subdivision (a)(1) of Section 245, any person who commits an assault upon the person of another with either a deadly weapon or instrument other than a firearm is guilty of a wobbler offense. 

As stated, this means that a PC 245(a)(1) prosecution can be pursued by the government as either a misdemeanor or a felony level offense. Even if the case is initially charged as a felony, through either plea negotiations or a motion to the court under Penal Code Section 17b, the case can later be reduced to a misdemeanor. 

If a Section 245(a)(1) defendant is convicted of a misdemeanor, the maximum penalty is one year in the county jail plus fines and fees. In the case of a felony conviction, on the other hand, the defendant faces two, three, or four years in the California state prison.

Use of Firearms While Assaulting Someone

Penal Code 245(a)(2) by contrast, concerns the use of firearms specifically. When a defendant assaults someone else with a firearm, he is exposed to two, three, or four years in the state prison. 

Even a firearm use, however, can still be treated as a misdemeanor offense as well. However, unlike a subdivision (a)(1) offense, a subdivision (a)(2) misdemeanor requires a minimum of six months in county jail. 

There is no minimum jail sentence on a PC 245(a)(1) offense. Penal Code 245(a)(3) addresses the use of certain more dangerous types of firearms such as machine guns, assault weapons, etc. 

Where the government establishes that one of these specific types of more heavily-regulated firearms is employed in the assault, Section 245 becomes a straight felony, not a wobbler, and the punishment associated increases to four, eight, or twelve years in the state prison. 

A semi-automatic firearm, on the other hand, also triggers straight felony treatment, but the penalties include three, six, or nine years in the state prison.

Aggravated Assault Charges

Finally, Penal Code Section 245(a)(4) is commonly used to prosecute aggravated assaults. Under this subdivision, the government must prove that the defendant employed force likely to produce great bodily injury to the victim. 

Note that while this section falls under the Assault with a Deadly Weapon, or “ADW” statute, there is no requirement in a Section 245(a)(4) prosecution that the defendant be armed at all. 

An assault with bare hands that involves a significant enough level of force and therefore danger to the victim qualifies.  A Penal Code 245(a)(4) charge is a wobbler which carries the same penalties as a subdivision (a)(1) charge.

Related California Offenses for Penal Code 245

Penal Code 203 & 205 - Mayhem

Penal Code 240 – Assault

Penal Code 242 – Battery

Penal Code 243(d) - Aggravated Battery

Penal Code 417 – Brandishing a Weapon

Penal Code 664/187 – Attempted Murder

Penal Code 21510 - Possession of a Switchblade Knife

Penal Code 26100 PC - Drive-by Shooting

Penal Code 247b PC - Shooting at an Unoccupied Vehicle

Fighting PC 245 Assault with a Deadly Weapon Charges

Common defenses to a charge of assault with a deadly weapon include self-defense and defense of others. Anytime a defendant employs force against another individual, there can always be an issue as to whether the defendant was proportionately and reasonable reacting to a real or perceived threat of imminent harm to themselves or to another person by the victim. 

Just because the defendant gets the better of an ensuing fight, for example, does not mean they are criminally liable. Depending on which subdivision is charged, the defendant may also have a specific defense as to the type of weapon employed. 

For example, if the government charges the defendant with using a machine gun, but he in fact used a semi-automatic, he may be guilty of the lesser charge under Section 245(b), but not of the charge carrying up to twelve years in state prison under Section 245(a)(3). 

Expert testimony may be required to establish whether a specific weapon or instrument qualifies as a deadly weapon, or falls within one of the specific firearm categories, and therefore provides the government with adequate proof to sustain a charge under Penal Code Section 245.

Assault with a deadly weapon is a serious crime under California's criminal laws.  As we have seen, a conviction can result in extended incarceration in the state prison. 

Contact Eisner Gorin LLP for Help

If you or someone you know is under investigation for, has been arrested for, or is already charged with ADW under Penal Code Section 245(a)(1), contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation. 

We can advise you on the best steps to maximize the chances of reducing or dropping charges, including before court through a prefiling intervention. Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Call our office for a consultation at (310) 328-3776.