CA Penal Code 245

Assault with a Deadly Weapon

Assault with a deadly weapon, CA Penal Code 245 [1], is commonly referred to as aggravated assault and requires the use of an object, other than a person’s body, to inflict great bodily injury to another, or act in a way that is likely to result in great bodily injury.  In order to be prosecuted of assault with a deadly weapon the prosecutor must prove the two elements of the case:

  1. You assaulted someone
  2. The assault was committed using a deadly weapon or force that was likely to cause great bodily injury

Assault with a deadly weapon is a wobbler, meaning it can be tried as either a felony or as a misdemeanor.  Your criminal record and the details of the crime are the determining factors in how the prosecutor will charge you.

If convicted of assault with a deadly weapon as a misdemeanor you could face:

  • Up to five years of informal probation
  • Up to one-year in county jail
  • Up to $10,000 in fines
  • Victim restitution
  • Confiscation of the used weapon
  • Community service
  • Participation in an anger management class

If convicted of assault with a deadly weapon as a felony you could face:

  • Up to 4 years in state prison
  • Up to $10,000 in fines
  • Victim restitution
  • A “strike” in accordance to California’s Three Strike laws
  • Confiscation of the used weapon

If you used certain guns, such as semiautomatic weapons or assault weapons, or if you fired at a police officer or firefighter you face additional years in state prison.

Prosecuting Assault with a Deadly Weapon

As previously noted, in order to be convicted of CA Penal Code 245 the prosecutor must prove the two elements of the crime:

  1. You assaulted someone
  2. The assault was committed using a deadly weapon or force that was likely to cause great bodily injury

The first element of the crime has its own difficulties for prosectors to prove, for a full understanding of how the prosecution proves you’ve assaulted someone read the article Assault and Battery, CA Penal Code 240 and 242 Respectively .

The second element of the crime can be difficult for the prosecution to prove.  Deadly weapon are traditionally viewed to be guns and knives, but you can be convicted of CA Penal Code 245 for using something like a beer bottle, a rock, car, pen, really anything that can be used to inflict great bodily injury onto another person.

The difficulty for the prosecution is proving that a victim sustained great bodily injury.  There are some instances when determining the level of injury is easy, like a concussion, broken bones, and missing teeth.  However, in cases when a victim sustains a scratch or a bloody nose the level of bodily injury is more difficult to prove.

It’s important to not that the prosecution does not have to prove that the victim sustained great bodily injury, only that your action would likely result in great bodily injury.  What constitutes as great bodily injury varies from case to case.

Defending Assault with a Deadly Weapon

The most common defense used by criminal defense attorneys is that the defendant acted in self defense.  If you reasonably believed at the time of the assault that the only way to protect yourself was through force then your attorney will prove that you acted in self defense.

California protects its citizens from being punished while acting in self defense if: you reasonably believed that great bodily injury will be inflicted upon you, and you only use as much force as necessary to ward off injury.

Another viable defense is that you didn’t have the ability to carry out the assault.  If for example you threaten to shoot someone with a gun but the gun wasn’t loaded then you can’t be charged with assault with a deadly weapon.  The second element of the crime requires that you act in a way that is likely cause great bodily injury, threatening to shoot someone with an unloaded gun will not result in injury.  It’s important to note however that if you threaten to shoot someone with a gun, even if it unloaded, you can still be charged with criminal threats and other crimes.

Another defense strategy that your criminal defense attorney can utilize is to prove that the police did not follow proper procedures.  Police officers are held to laws the same way that citizens are, and police must follow strict rules while performing their duties.  If the arresting officer in your case did not follow the proper arresting procedures, such as reading you your Miranda rights, then your attorney can weaken the prosecutions case by having evidence dismissed.

If you are facing Assault with a Deadly Weapon charges then it’s important to contact a skilled criminal defense attorney immediately.  Seppi Esfandi is a Certified Specialist in Criminal Law, meaning he has experience and expertise in a myriad of criminal matters including CA Penal Code 245.  Call 310-274-6529 for a FREE case evaluation.

 

References

[1] Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury 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.

(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

(3) Any person who commits an assault upon the person of another with a machine gun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.

(b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.

(c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

(d) (1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.

(2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years.

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