§ 245(a)(1) PC – Assault with a Deadly Weapon (ADW) (2024)

Penal Code § 245(a)(1) PC(assault with a deadly weapon)is defined as attacking or attempting to attack another person with a weapon capable of causing death or great bodily injury. Prosecutors can charge this offense as a misdemeanor or a felony, and it carries a maximum sentence of up to 4 years in jail or prison.

Assault with a deadly weapon is often referred to as

• “ADW” or
• aggravated assault.

The crime of assault(Penal Code 240 PC)is the unlawfulattempt to violently injure someone. The offense is sometimes referred to as “Police Code 245“.

Examples

• trying to stab someone with a broken beer bottle.
• throwing a hammer at someone in a fight.
• telling a pit bull to attack a person.

Defenses

Getting arrested or charged with ADW does not necessarily mean you will be convicted. We have been able to get these charges dismissed by showing that

• you acted in lawful self-defense,
• the object was not a lethal weapon,
• your actions were not willful, and/or
• you were falsely accused.

Penalties

Our California criminal defense lawyers will explain the following in this article:

• 1. Law of Assault With a Deadly Weapon
• 2. Best Defenses
• 3. Sentencing
• 4. “Three Strikes” Implications
• 5. Immigration Consequences
• 6. Record Expungement
• 7. Effect on Gun Rights
• 8. Related Offenses
• Additional reading

1. Law of Assault With a Deadly Weapon

Under California law, a prosecutor must prove the following to convict you of ADW:

1. you performed an act that, by its nature, would probably result in the direct application of forceto someone else,
2. you performed that act with either a lethal weapon, or with force that was likely to produce “great bodily injury,”
3. you performed the act willfully,
4. when you acted, you were aware of facts that would lead a reasonable personto believe that the act would directly and probably result in theapplication of forceto that person, and
5. when you acted, you had the present ability to apply forcewith a lethal weapon, or force likely to produce great bodily harm.¹

Note that the “victim” of an ADWdoes not have to get injured for a criminal charge. The focus is on whether your act could haveresulted in the application of force. It is not on whether the force wasactually applied.²

Questions often arise under this code section on the meaning of:

• application of force,
• deadly weapon,
• serious injury, and
• willfully.

Application of force

The definition of “application of force,” under PC, is any:

• harmful, or
• offensive touching.

The slightest physical contact will count if it is done in a rude or offensive manner.³

An assault with a lethal weapon can occur even if the touchingwas not direct. The touching can be doneindirectly – for example, causing an object to touch the “victim.”⁴

Note that it is not necessary that you succeed in applying force to the other person. All that is required is that:

• you took some action that,
• wouldprobably have resultedin force being applied to the other person.⁵

Example:Jenny gets into a heated argument with her neighbor. She throws several rocks (deadly weapons) at him in anger. Only one rock barely touches the neighbor’s sleeve. Here, Jenny could be charged with ADW. She was in anger, the rocks were potentially harmful, and one slightly touched the neighbor.

Note that a charge could still be brought if none of the rocks hit the neighbor. No force has toactually be appliedfor a charge under this statute.

Deadly weapon

For purposes of this statute, a “deadly weapon” is:

• any type of weapon or object,
• which is capable of producingdeath or great bodily injury.⁶

This definition includes the obvious lethal weapons such as:

• guns, and
• knives.

But other objects can be deadly weapons if they are used in a way that could:

• kill someone, or
• cause them substantial harm.

Some examples include:

• an unloaded gun (if used to club or hit someone),⁷
• a bottle (if used to attack someone),⁸
• a pencil (if used to stab someone),⁹
• a BB gun,¹⁰
• a dog that will attack humans on command,¹¹and
• a car (used in an attempt to run someone down).¹²

Great bodily injury

California law defines great bodily injury as:

• significant, or
• substantial physical injury.

This means somethinggreater thanminor harm.¹³

Examples of great bodily injuries are:

• broken bones,
• gunshot wounds,
• dog bites,
• lacerations, and
• black eyes.

Willfully

Under this law, you act “willfully” if you do something willingly or on purpose. It is not necessary that you intended to:

• break the law,
• hurt anyone, or
• gain any advantage.¹⁴

Example:Mark and Anthony are on a neighborhood softball league. During a game, the two get into a bad argument. Mark grabs a softball and throws it near Anthony. The ball ricochets off a fence and hits him.

Mark is charged with ADW. He says, in defense, that he is not guilty because he never intended to hit Anthony with the ball. This is not a valid defense. It does not matter if he did not intend to hit Anthony. It only matters that he purposefully threw the ball in his direction.

2. Best Defenses

Through aggressive investigation, negotiation and litigation, we routinely get ADW charges dropped by asserting one or more of these four defenses:

1. self-defense,
2. no deadly weapon,
3. no willful act, and/or
4. false accusations

Self-defense

To win on a self-defense claim for PC 245 a 1 charges, we would show the prosecutors that you:

• believed that you were in “imminent danger,”
• believed that force was necessary to stop the danger, and
• used an appropriate level of force in defense.¹⁵

Helpful evidence we frequently rely on includes surveillance video, eyewitness accounts, and medical expert testimony.

Example:Kelly is walking home at night when a man jumps out from an alley and says he is “going to make her feel right.” Kelly grabs a bottle and throws it at the man.

Here, Kelly does commit an assault with a lethal weapon, though she is not guilty of the crime because she acted in self-defense. Fortunately there was an eyewitness who could back up Kelly’s story that she reasonably believed that she was going to be raped and that force was necessary to flee.

No deadly weapon

You are only guilty of violating PC 245 a 1 if you committed an assault with a lethal weapon. This means it is a defense to show that:

1. even if you committed an assault,
2. you did not do so with the use of a deadly weapon.

We typically support this defense by highlighting certain facts to show the object you had was not deadly. We may also hire a weapons expert to testify that the object you used does not qualify as deadly.

If we can show the brick, pipe, glass, or other object you wielded was not deadly, the D.A. may agree to reduce the felony assault charge down to simple assault.

No willful act

The most effective defense Shouse Law Group relies on in ADW cases is to show that you had no criminal intent. The reason is that intent is not something tangible that can be shown to a jury, and we use that to our advantage when raising a reasonable doubt to the prosecutor.

Perhaps, for example, you committed an act by accident and without a specific purpose. Or maybe we can call upon a medical expert to show that you were in the midst of a medical episode such as a seizure where you could not control your movements.

We have a long track record of poking enough holes in the state’s case so that they are forced to drop the charges for lack of solid proof.

False accusations

If you may have been falsely accused of ADW, our law firm compiles all the available evidence to impeach the accuser’s credibility. This typically includes voicemails, text messages, emails, and eyewitness accounts.

Once we show the D.A. that the accuser has motivations to lie (such as anger, jealously, or revenge), the state’s entire case may fall apart. Then they may have to dismiss the charge or at least offer up a favorable plea bargain.

3. Sentencing

245(a)(1) PCis charged as awobbler offenseif the deadly weapon that was usedwas not a firearm. ADWs committed with a firearm are discussed in 3.1 below.

A wobbler is a crime that a prosecutor can charge aseither:

• a misdemeanor, or
• a felony.

If charged as amisdemeanor, the crime is punishable by:

• misdemeanor (or summary) probation,
• custody in county jail for up to one year, and/or
• a maximum fine of $1,000.¹⁶

If it is afelony charge, the offense is punishable by:

• felony (or formal) probation,
• imprisonment in state prison for up to four years, and/or
• a maximum fine of $10,000.¹⁷

Note that these penalties will change if an assault with a deadly weapon case:

1. involved a firearm, or
2. was committed on a police officer or firefighter.

ADW with a firearm

If an ADW was committed with anordinary firearm such as a revolver or pistol, then the offense is still charged as a wobbler. The penalties are the same as those outlined above. The only change is that misdemeanor convictions carry aminimumjail term of six months.¹⁸

An ADW conviction will be astraight felonyif it was committed with:

• a semiautomatic firearm,
• a machinegun,
• an assault weapon, or
• a .50 BMG rifle.¹⁹

The penalties for such a felony conviction can include a prison term of up totwelve years.²⁰

ADW on a police officer or firefighter

Assault with a deadly weapon is charged as astraight felonyif:

1. the alleged victim was apeace officer or firefighter, and
2. you knew or reasonably should have knownthis.²¹

In these situations, the crime is punishable by up tofive yearsin state prison.

If the crime was committed with afirearm, then the prison sentence could rise to12 years.²²

4. “Three Strikes” Implications

Itdependson whether:

• The conviction is for a misdemeanor orfelonyoffense;
• You used a deadly weapon or “forcelikely to produce great bodily injury”; and
• The victim sustained great bodilyinjury²³

Learn more aboutCalifornia’s Three Strikes Laws.

5. Immigration Consequences

A conviction ofADWmay havenegative immigration consequences.

The law states that if you (a non-citizen) commit an aggravated felony, then:

• you can be deported, or
• you can be marked as inadmissible.

The law states thatfelony ADWis:

1. a crime of violence, and as such
2. is an aggravated felony.²⁴

This means negative consequences ensue if you are convicted of a felony under PC 245a.

6. Record Expungement

If you are convicted of this crime, you can geta criminal historyexpungement. This is true provided that you successfully complete:

• probation, or
• a jail term (whichever is relevant).

If you violate a probation term, a judge may still award an expungement of your criminal record.

Penal Code 1203.4 PC says an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.²⁵

7. Effect on Gun Rights

A conviction under this statutemayhave negative effects on your gun rights.

California law says that convicted felons cannot:

• own a gun, or
• possess a gun.

Recall that ADW can be charged as either a misdemeanor or a felony. If you are charged, and convicted of, felony ADW, then you will lose your gun rights.

8. Related Offenses

There are three crimes related to ADW. These are:

1. brandishing a weapon or firearm – PC 417,
2. assault on a public official – PC 217.1, and
3. failing to control a dangerous animal – PC 399.

Brandishing a weapon or firearm – PC 417

Penal Code 417 PC is the California statute that defines the crime of brandishing a firearm or deadly weapon. You commit this offense by:

1. drawing or exhibiting a deadly weapon or a firearm, or
2. using a deadly weapon in a fight.

Note that unlike ADW, a PC 417 conviction does not require proof of an assault.²⁶

Similar crimes include Simple Assault (PC 240), Simple Battery (PC 242), Battery Causing Serious Injury (PC 243(d)), Throwing Dangerous Object At A Motor Vehicle (CVC 23110(b)), Attempted Murder (PC 664/187(a)), and Assault With Caustic Chemicals (PC 244).

Assault on a public official – PC 217.1

PerPenal Code 217.1 PC, you commit the crime of assault on a public official when:

1. you commit an assault,
2. you commit this assault against a public official, and
3. you commit the assault either in retaliation for, or to prevent the performance of, the public official’s official duties.

Unlike ADW, you are guilty of this crime even if you did notuse a deadly weapon in the commission of the assault.

Similar crimes include Assault On Emergency Personnel (PC 241(c)) and Resisting An Executive Officer (PC 69).

Failing to control a dangerous animal – PC 399

Penal Code 399 PC is California’s criminal law on failure to control a dangerous animal. You commit this offense when:

1. you willfully let the dangerous animal run free or do not use ordinary care in keeping it, and
2. as a result, another person is killed or suffers serious bodily injury.

You can commit an assault with a deadly weapon with a dangerous animal if:

1. the animal can attack on demand, and
2. you give the demand to attack.

For information on ADW charges in Nevada and Colorado, please see our articles on

• “Nevada ‘Assault with Deadly Weapon’ Laws – NRS 200.471(2)(b),” and
• “Colorado “Assault” Laws.”

Additional reading

For more in-depth information, refer to these scholarly articles:

• Commitment – Evidence of Character – Assault with Deadly Weapon – Impeachment of Witness – Criminal Law Magazine and Report.
• Criminal Law: Assault with Unloaded Gun – Criminal Law Review.
• Human Immunodeficiency Virus as a Deadly Weapon: Proposing a California Assault Law That Recognizes HIV as a Deadly Weapon – Thomas Jefferson Law Review.
• Assault-Related Conduct under the Proposed California Criminal Code – Hastings Law Journal.
• People v. Chance: Analyzing the Assault Statute’s “Present Ability” Requirement – Berkeley Journal of Criminal Law.

Legal References: