Assault with a Deadly Weapon

Assault with a Deadly Weapon as defined in California Penal Code 245(a)(1) states "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." 

So, in other words, Assault with a Deadly Weapon while being a serious crime is a “wobbler” which means it can be charged as a misdemeanor or a felony by the prosecutor.  Some of the determining factors for a prosecutor in how to file a case are:

The type of weapon or instrument used in committing the alleged assault,

Whether the alleged victim was injured and the seriousness of the injuries,

And whether the alleged victim is a law enforcement officer or firefighter engaged in their duties.    

Under Penal Code 245(a)(1), the California crime of assault with a deadly weapon ("ADW”) consists of an assault that is committed either with a so-called “deadly weapon,” other than a fireman OR  by means of force likely to produce great bodily injury.

So to be found guilty of the crime of Assault with a Deadly Weapon the following elements must be established beyond a reasonable doubt:

  1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person or
  2. The defendant did an act that by its nature would directly and probably result in the application of force to a person with such force used that was likely to produce great bodily injury,
  3. The defendant did that act willfully;
  4. When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that their act by its nature would directly and probably result in the application of force to someone and,
  5. That the defendant had the present ability to apply force likely to produce great bodily injury or with a deadly weapon.

Force with a Deadly Weapon.  While it is common to think of a “deadly weapon” as a gun or knife, the case of People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-1029,  states that a “deadly weapon” is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. 

The Aguilar case went onto say that “Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.  In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.”

With that definition in mind, “deadly weapon” can be a rock, baseball bat, pen, chain, even a person’s hands and feet depending upon the circumstances of how they are used.  If body parts are used to assault someone, in a manner that is likely to cause great bodily injury, then those body parts can be classified as “deadly weapons” for purposes of the law.

In one particular case, a client was accused of an assault with a “deadly weapon”, a serious felony offense, when the client threw a nail gun at the victim’s back, which the victim described as a “blow” to his back.   Using the legal definition of “deadly weapon,” Michele prevailed in having the felony charge eventually dismissed in that the nail gun was simply thrown at the person’s back not in a way where the nails could have discharged.  Therefore, considering the manner in which the nail gun was used in this case, it did not constitute a “deadly weapon.” 

Great Bodily Injury means significant or substantial physical injury.  It is an injury that is greater than minor or moderate harm.  

Because the law addresses the capability of inflicting significant injury, neither physical contact nor actual injury is required, however, if injuries do result, the nature of such injuries and their location are relevant facts for consideration in determining whether an object was used in a manner capable of producing and likely to produce great bodily injury.

Legal Defenses that are often used against an allegation of Assault with a Deadly Weapon are:

A person acted in self-defense or the in defense of someone else

You did not act willfully as required by law.

The instrument or weapon used was not legally a “deadly weapon” or incapable of inflicting significant injury.

Given the complexity of the law as it relates to an Assault with a Deadly Weapon and the severity of the consequences, you and your criminal defense attorney will want to use all the legal defenses at your disposal to fight or mitigate these charges.  Michele has the experience and proven results to explore with you the best outcome to your case.  Remember typically when you are facing charges the prosecutors only have one side of the story, the alleged victim’s.  Call Michele Ferroni today at (818) 203-8300 for a free consultation to discuss the facts of your case and the legal strategy to vigorously represent your side of the story.


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