What to Do If You Are Charged With Assault With a Deadly Weapon in California

Charged with Assault with a Deadly Weapon in California? Here’s what you need to know.

Defending an assault with a deadly weapon charge is not easy. But it can be done, by asserting defenses based upon the facts, or legal defenses.

Penal code section 245 is the law that makes assault with a deadly weapon (usually charged as a firearm, or knife, although sometimes a motor vehicle, pipe, brass knuckles, a rock, steel toed boots, or other dangerous item). It is known as a “wobbler”, meaning that it can be charged as a misdemeanor, or as a felony.

In order to charge you with assault with a deadly weapon, the prosecutors have to show that you assaulted someone, that it was committed with a deadly weapon of some type, and that there was a likelihood of causing great bodily injury.

There is a great difference between a felony and a misdemeanor charge as far as punishment. A misdemeanor carries, at most, a sentence of up to a year in jail and a fine maximum of $1000 (although most first time offenders do not get anywhere near that).

A felony, on the other hand, can bring a sentence of up to 4 years in state prison, and a fine of $10,000, plus restitution and a strike on your record. A huge increase compared to the misdemeanor punishments.

What defenses are there to assault with a deadly weapon? Well, as you can guess, if there wasn’t really an assault, or a deadly weapon, or the intent element above (the means and ability to cause great harm), or there was a mistake about that, the defense can assert that.

Using force to defend others, or as self defense, is a legally sound defense.

Consent to the harm, for example in an arranged fight, boxing match, wrestling, or fight club type scenario, would be a defense.

Lack of intent to cause harm (throwing a rock not knowing that there could possibly be people on the other side of a wall, for example).

Insufficient evidence (a lack of witnesses, for example)

Law enforcement mistakes (for example, not having probable cause to investigate in the first place, or not following Miranda warnings prior to taking statements in custody).

In regards to reducing a felony assault with a deadly weapon to a misdemeanor, often focusing on a lack of bodily injury or showing that injuries were not serious can help.

All of these defenses are where a good defense attorney can help. A full investigation, and a review of the facts and legal issues involved in the case, can be used to defend the charge of Assault with a Deadly Weapon.