Intentional acts that cause fear in others of an attack or imminent physical harm amounts to assault. The attack or bodily injury need not be actualized. Further, using a deadly weapon in causing fear to another is considered an escalation of assault and an offense prosecutable under PC 245. Assault with a deadly weapon or aggravated assault is a serious charge because of the significant danger to another’s life. Thus a conviction results in hefty penalties. Fighting aggravated assault charges is in your best interest, and you stand a better chance at an acquittal or reduced charges with the help of experienced criminal defense attorneys. At Koenig Law Office, we pride ourselves in offering the best defense for clients facing criminal charges, including assault with a deadly weapon charge in Bakersfield, CA.
Assault With a Deadly Weapon (AWD) Under PC 245
Prosecutors must prove their case beyond a reasonable doubt for you to be convicted for an ADW offense. You will be found guilty if the following are proven to be true:
- You acted willfully in a manner that could result in directly applying force to another
- You performed your actions by using a lethal weapon or with force likely to inflict great bodily harm to another
- You were aware of the facts, and a reasonable person would also believe that your actions would directly and probably result in the application of force to another.
- When you acted, you had the present ability to apply force with a deadly weapon, or the force was likely to cause significant bodily injury.
It is worth noting that the alleged victim does not have to be injured for you to be charged under PC 245. Your intentional actions and the potentiality of your actions resulting in an application of force are the subject matter of the case.
The basis of a prosecutor’s case is proving the above, which are considered the elements of the case. Below is an in-depth look at each element.
Elements of an Assault With a Deadly Weapon Charge
The elements required by PC 245 for a conviction are:
- Application of force
- Deadly weapon
- Great bodily injury
- Willful action
Application of Force
You apply force if you harmfully or offensively touch another. The degree of touch under PC 245 is inconsequential. That means even a slight touch is enough to have you convicted under this section, directly or indirectly, by causing an object to touch the alleged victim.
You don't need to succeed in applying force to another. All that is required is that you took action that could result in force being applied on the victim.
The reasonable standard applies, that is, would a reasonable person believe that the nature of your actions could directly or potentially result in the application of force. Therefore, touching, pushing, kicking, scratching, punching, biting, and choking meet the threshold of application of force.
The Use of a Deadly Weapon
Deadly or lethal weapons are any objects, tools, or equipment capable of inflicting significant bodily injury or causing death. This definition includes both lethal objects like knives and firearms and objects that seem harmless but can cause harm if used for that purpose. These objects comprise bottles, pens, BB guns, and unloaded guns. Further, dogs and cars make the list if the dog is ordered to attack another individual or if the car is used in an attempt to run another down.
Great Bodily Injury
Great bodily injury points to significant physical harm beyond minor injury. These injuries include dog bites, black eyes, lacerations, broken bones, broken teeth, and gunshot wounds.
You willfully act if you intentionally or deliberately make a move. However, you need not necessarily intend to break the law, gain an unfair advantage, or hurt another.
All four elements make the prosecution’s case against you.
Examples of Assault With a Deadly Weapon
The following actions could result in an assault with a deadly weapon charge based on the above definition and description of the elements needed to be proven by prosecutors.
- Swinging a bottle on another's head
- Pointing a gun at another and shooting
- Attempting to stab an individual with a broken piece of glass that could potentially inflict serious injuries
- Driving a car into another with a passenger in it or attempting to hit an individual on foot
Defenses Available in Fighting an AWD Charge
In presenting arguments in your defense, a criminal defense attorney seeks to have the AWD charge dropped or reduced. You, therefore, could potentially walk away, a free individual, or serve a lighter sentence.
Common defenses in AWD charges include:
Self-Defense or in Defense of Others
If you reasonably believed that you or another were in imminent danger and believed that the force used was necessary to stop the danger, you can argue self-defense or in defense of another to fight the charges. However, this defense strategy only holds if the force used was appropriate to the danger you or the other individual faced.
No Willful Action
Intentional action is key in proving your guilt under PC 245. Therefore, the DA must prove willful action on your part beyond a reasonable doubt. Failure to do so coupled with your defense of no intentional action should see you acquitted of the AWD charges.
For example, your actions could have been an accident or been misinterpreted by the victim. Additionally, you could also have been coerced by an assailant under threat of future or immediate harm to yourself or a loved one, forcing you to act as you did. All the above actions lack intent.
You Did Not Use a Deadly Weapon
You can only be convicted under PC 245 if you use a deadly or lethal weapon. Your attorney needs only prove that the weapon was not lethal for the AWD charges to be reduced to assault charges if it is probable that you assaulted the victim in the case.
Inability To Carry Out The Threat
If you acted but lacked the present ability to inflict serious bodily harm or carry out the assault with a lethal weapon, you are not guilty of AWD.
For example, you threatened to use a knife in your pocket on the victim. However, you did not have a knife in your pocket. Therefore, you could not assault the alleged victim with a deadly weapon.
You Are Falsely Accused
Several people fall victim to false accusations. You can be misidentified in a police lineup and accused of assaulting another with a deadly weapon. In other instances, the alleged victim could accuse you of a PC 245 violation in retaliation for a perceived wrong. Also, your accuser could be a jealous ex-lover or business associate seeking retribution, a vengeful spouse, or a victim acting in anger.
Whatever the situation, your attorney will present compelling evidence in your defense.
Recall that an attempt to assault another with a deadly weapon is enough to find you guilty of the crime. Therefore, no one was injured is not a defense.
Penalties of an ADW Conviction
Assault with deadly weapon violations is a wobbler offense. A DA can charge you with a misdemeanor or a felony. Each is punishable with varying times behind bars and fines.
If charged with a misdemeanor, you risk facing up to one year in jail or serving a summary probation sentence instead of time in jail. Additionally, the judge could impose a fine of up to $1,000.
Felony charges, on the other hand, attract harsher penalties upon conviction. You could either serve a formal probation sentence or a prison sentence of up to four years. Additionally, you could part with a fine of up to $10,000.
Note that the penalties under PC 245 could change if the assault involved using a firearm or the assault was committed on a firefighter or a police officer.
ADW With a Firearm
Using an ordinary firearm like a pistol or revolver in an assault case will attract felony or misdemeanor charges. Consequently, the offense is punishable by the penalties outlined above.
If convicted for misdemeanor assault while using an ordinary gun, a judge will impose a minimum jail sentence of six months.
If you use a machine gun, semi-automatic firearm, an assault rifle, or a .50 BMG gun, the DA will charge you with a felony violation. The penalties are as follows:
- Using semi automatic guns, including rifles or handguns, results in 3, 6, or 9 years in prison and a fine of up to $10,000.
- Using an automatic gun like an assault rifle, .50BMG rifle, or a machine gun results in up to 12 years in prison and a fine of up to $10,000.
ADW With a Special Victim
Assault with a deadly weapon on firefighters and police officers is a straight felony. The DA must prove that you reasonably knew or should have known that the victim was a police officer or a firefighter. Additionally, the police officer or firefighter should have been working in that capacity at the time of committing the alleged crime.
If proven, you could face up to 12 years in prison, which could change depending on the weapon used.
ADW as a Strikeable Offense
An AWD offense is only strikeable in particular circumstances.
A strike will be added to your record under California’s Three Strikes law in the following circumstances.
- If you did not use a lethal weapon but instead used force likely to result in significant bodily injury and that the victim sustained great physical harm
- If you used a deadly weapon — Under this, it will not matter whether the victim suffered significant bodily injury.
You will not receive a strike on your record if the following are proven to the circumstances in your case.
- You did not use a lethal weapon but instead used force likely to result in significant bodily injury and that the victim did not sustain great physical harm.
- You are convicted of a misdemeanor charge under PC 245
Probation Terms for AWD Offenders
Judges issue probation terms commensurate to the crime. Thus, probation terms vary on a case-by-case basis. However, some standard terms include the following.
- You should not commit any crime during your probation
- Perform the community services including serving the time as ordered by the court
- Pay restitution to the victim
- Visit your probation officer as mandated by the court
- Not owning or possessing a firearm
Violating your probation terms is detrimental. You risk facing additional sentences as prescribed in law. You also risk revocation of your probation. If so upheld, you will serve jail or prison sentences as detailed above.
Impact of a Conviction Under PC 245 on Gun Rights and Immigration
Fines and jail or prison terms are criminal penalties of a conviction for assaulting another with a dangerous weapon. A conviction also adversely impacts your immigration status and gun rights.
Non-citizens who commit aggravated felonies will be deported and marked inadmissible. This means you will be denied entry to the US after deportation if convicted of a PC 245 felony offense.
If you own a gun, it will be confiscated. Additionally, you will lose your right to own or possess a firearm. If subsequently found to own or have a firearm in your possession, you will face additional charges.
Expungement of an AWD Conviction
Expungement is only available to defendants who served probation and jail sentences. If you did time in prison, you are ineligible for expungement. You additionally must have completed your probation and served out your jail sentence.
PC 1230.4 provides release of all penalties and disabilities a conviction results in through an expungement order. That means your conviction will no longer reflect in your criminal history, thus not affecting any of your pursuits that would be affected by a criminal record.
Offenses Related to Assault With a Deadly Weapon
Prosecutors could introduce the following charges in addition to PC 245 violations.
Assault on a Public Official, a PC 217 Violation
It is an offense to target a public official for discharging his/he duties or in retaliation for undertaking his/he responsibilities.
Prosecutors seek misdemeanor or felony penalties for individuals who are:
- Accused of assaulting public officials or any member of the official’s family
- Accused of committing said assault to prevent or in retaliation of the public figure’s performance of his/her official duties.
Public figure or official, in this case, refers to any individual employed or serves as a consultant of a local or state government agency.
Misdemeanor convictions result in a jail term of up to one year and a fine not exceeding $1,000, whereas felony convictions are punishable by a jail sentence not exceeding three years and a fine of $10,000.
Failing to Control a Dangerous Animal, a PC 399 Violation
Failure to control a dangerous animal is a crime under PC 399, whose conviction can lead to misdemeanor or felony penalties. Under PC 399, dangerous animals include wild animals or vicious domesticated pets prone to intentionally hurting people.
Prosecutors must prove that:
- You had custody of, owned, or were in control of the animal
- You knew that the animal was dangerous
- You deliberately allowed the animal to run free or failed to exercise ordinary care in restraining the animal — Ordinary care refers to any action deemed necessary to prevent reasonably foreseeable harm to another.
- The animal inflicted severe bodily injury or killed another person
- The victim took reasonable precautions an ordinary person would have taken in the same situation
The assault with a deadly weapon with a dangerous weapon applies if you ordered the animal to attack or if the animal can attack on demand.
If the DA proves their case, you will be convicted. If convicted for a misdemeanor, you could spend up to six months in jail and part with $1,000 in fines. Felony convictions, on the other hand, are punishable by up to three years in jail and a possible fine of $10,000.
Brandishing a Firearm or Weapon, a PC 417 Violation
You will face criminal prosecution for exhibiting or drawing a firearm or weapon in a threatening manner or using it in a brawl. The DA will have to prove the following for you to be found guilty.
- You drew or exhibited a firearm or weapon in another’s presence and did so in a rude, threatening, or angry manner, or
- You used the firearm or weapon in a quarrel or fight
- You did not act in self-defense
Misdemeanors are punishable by jail terms ranging from three months to one year and a possible fine of $11,000. If convicted of a felony violation, you could face up to three years in prison.
Contact a Criminal Defense Attorney Near Me
If you are arrested or charged with assault with a deadly weapon in Bakersfield, CA, you need the assistance of an experienced criminal attorney. A knowledgeable attorney will explain the legal circumstances you face and your options. Get in touch with our team of experienced attorneys at Koenig Law Office today at 661-793-7222 for a free case evaluation.