California

Reducing ‘Assault with Deadly Weapon’ from a Felony to a Misdemeanor

March 11, 2021 by Mikel Rastegar in California  Criminal Defense  
Thumbnail for: Reducing ‘Assault with Deadly Weapon’ from a Felony to a Misdemeanor

You Don’t Want this Charge

Assault with a deadly weapon (PC 245) is a consequential and serious charge with potentially life-altering effects. In California, assault with a deadly weapon is a “wobbler”, meaning it can be charged as either a misdemeanor or a felony. The punishment for the felony assault with a deadly weapon charge will obviously be much more harsh. That’s why if you have been charged with assault with a deadly weapon, you need to contact an experienced defense attorney ASAP to start building a strong case and potentially even reducing the felony to a misdemeanor charge.

Assault with a Deadly Weapon in California

defines assault with a deadly weapon as the intentional use of force coupled with the capability to perform the threat of harm with a weapon or a force that can inflict a considerable physical injury or death to another person. 

In a nutshell, the alleged offender’s actions must have been done on purpose. The offender must also have the ability to cause harm at that moment, meaning that while they don’t necessarily have to intend to use force against someone, they do have to beware that the ability to use force under the current circumstances will likely harm another person.

In the context of “with a deadly weapon”, the “application of force” refers to touching someone else in an offensive or harmful way. This touching can be indirect by initiating contact with another human or object. The term “another person” doesn’t just refer to the person’s body. It can also refer to their clothing and anything attached to them. A deadly weapon is any weapon, object, or instrument that is inherently lethal or has the potential to be used in a way that can cause death or considerable injury to someone else.

To be convicted of assault with a deadly weapon, prosecutors have to prove:

  • The defendant committed an assault on another person,
  • The defendant carried out the assault willfully or with the intent to cause the person harm,
  • The defendant committed the assault while a deadly weapon or a firearm was in their possession
  • The assault was carried out with force likely to produce serious bodily harm or death

Wobbler Laws

In criminal law, many charges are known as what’s called “wobblers”— or a statute that can be treated as both a misdemeanor or felony. As we mentioned, in California, assault with a deadly weapon is one of those charges that can be charged as either a misdemeanor or a felony.

The sentence for a wobbler charge will indicate that it is punishable by jail or prison. 

Whether the prosecution files the charge as a felony or misdemeanor depends on the severity of the assault, and the prosecutor will look at a large range of the case’s mitigating factors and aggravating factors involved that led up to the assault with a deadly weapon. Examples of an aggravating factor include:

  • the type of weapon or instrument used to carry out the assault,
  • the extent of the victim’s injuries,
  • Whether the person has protected or non-protected person status. For example, if you assault a police officer, firefighter, or other law encasement personnel who was working when the assault took place, the penalty will be much more severe. People convicted of assaulting these “protected parties” with a deadly weapon can be sentenced to as many as 12 years in prison.

Whether the district attorney decides to file a charge as a misdemeanor or felony has the potential to have a devastating and life-altering impact on the defendant’s life as they face years in prison if the felony charge is filed.

Whether the district attorney decides to file a charge as a misdemeanor or felony has the potential to have a devastating and life-altering impact on the defendant’s life as they face years in prison if the felony charge is filed.

  • Up to four years in prison
  • A fine of up to $10,000
  • If the weapon used in the assault was a rifle or handgun, the sentence might be extended to nine years in state prison
  • If the weapon was an assault weapon or machine gun, the prison sentence jumps to 12 years
  • Formal probation
  • Restitution to the victim
  • Weapon confiscation
  • Felony strike under California’s Three Strikes Law— a California resident who gets three strikes on their criminal record can be sentenced to life in state prison with no chance of parole

As you likely know, misdemeanor charges for assault with a deadly weapon come with much lighter penalties, like:

  • Up to one year in county jail
  • A fine of up to $1,000
  • Weapon confiscation
  • Informal probation
  • Community service
  • Anger management

So, how do you reduce an assault with a deadly weapon charge in California to a misdemeanor?

So, how do you reduce an assault with a deadly weapon charge in California to a misdemeanor?

Nobody knows the intricacies of the laws like criminal defense attorneys do. When you depend on a defense attorney to represent you, you are guaranteeing a better outcome for your case. Your attorney will come up with a strong defense for you. An attorney has many different strategies to pull from that can prove the defendant is being falsely accused of assault with a deadly weapon based on each case’s unique circumstances, including:

Self-Defense

Self-defense is an extremely common defense used to fight assault with a deadly weapon charges. In order for self-defense to be effective in a defense case, the attorney must prove the force the defendant used against the alleged victim was within reason under the specific circumstances the defendant was facing. A significant part of this is to show the defendant was in immediate danger or already suffering bodily injury and fearing for their life.

Alibi

If the criminal defense attorney is able to show that the defendant wasn’t at the scene of the crime when the alleged assault happened, the assault with a deadly weapon charge will likely be dropped.

Factual Impossibility

Another legal defense is that it is factually impossible that the defendant’s act meets all of the elements of the crime in question. A skilled criminal defense attorney can use factual impossibility as a valid defense if:

• The defendant was not in possession of any object capable of being used as a deadly weapon
• The defendant didn’t have the ability to cause any type of injury
• The decedent acted by accident or involuntarily 

Attacking Witness and Alleged Victim Credibility

This is an extremely important element of defense strategy in assault with a deadly weapon cases. Attacking witness or “victim” credibility can be done by questioning the witness or victim’s capability to accurately remember the events leading up to the crime. An experienced attorney will attack a witnesses’ credibility by challenging their memory of the events, challenge a witness’ sobriety level at the time of the incident, and whether they may have used drugs the day of the event. A proficient assault with a deadly weapon attorney will also explore whether any witnesses were actually in a feasible position to accurately witness what they are claiming they saw. An attorney will do this by questioning their eyesight and whether the area was well-lit or pitch black.

How We can Help

There are many more defenses, techniques, and strategies that the team at Esfandi Law deploy to fight for their clients in assault with a deadly weapon charges. Contact us today, and let’s get started building a strong case. 

Need a Criminal Defense Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.

What if I Refuse to Testify in a Domestic Violence Case? Read our Client Reviews

Recent Victories

Contact Us:         
Esfandi Law Group QR Code
Esfandi Law Group
Lara S.
December 3, 2019
5
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

Get a Free Consultation

    Free ConsultationForm