Assault with a Deadly Weapon (ADW)
California Penal Code 245 PC

The California crime of assault with a deadly weapon (sometimes called “ADW”) basically consists of a California assault that is committed either

  • with a so-called “deadly weapon,” OR
  • by means of force likely to produce great bodily injury.1

Assault in California law, meanwhile, is defined as an unlawful attempt to commit a violent injury on someone else, when you have the ability to do so.2

Examples

California assault with a deadly weapon charges could be filed in situations like the following:

  • In a fit of road rage, the driver of one car fires his gun at the driver of another car, who has cut him off.
  • During a fight with her boyfriend, a woman attempts to stab him with a screwdriver.
  • A man instructs his dog, a ferocious German shepherd, to attack his neighbor.

Penalties

Penal Code 245 assault with a deadly weapon is what is known as a “wobbler” in California law. This means that it may be charged and punished as either a California misdemeanor or a California felony, depending on the circumstances of the case.3

The exact penalties for ADW depend on

  • the type of weapon or instrument used to commit the alleged assault,
  • whether the alleged assault “victim” sustained an injury, and if so how severe it was, and
  • whether the victim was a law enforcement officer, firefighter, or other protected person.4
Gun
Assault with a deadly weapon carries heavier penalties when the "deadly weapon" used is a gun.

The maximum jail sentence for assault with a deadly weapon as a misdemeanor is one (1) year in county jail.5

The basic felony sentence is two (2), three (3), or four (4) years in state prison—and it only goes up from there if the weapon used is a firearm, or the victim is a protected person.6

Legal defenses

One of the surprising things about the California crime of assault with a deadly weapon is that you can be convicted of this offense even if no one was actually injured by your behavior.7 (This is the major difference between ADW and the California crime of battery.8)

But the penalties for ADW in California are serious in spite of that. And that is why you and your criminal defense attorney will want to use all the legal defenses at your disposal to fight these charges.

Some potential defenses to assault with a deadly weapon charges include:

  • You did not actually use a deadly weapon or force likely to cause great bodily injury;
  • You acted in self-defense or defense of someone else;
  • You did not act willfully or with the required intent; and
  • You were wrongfully accused.

In order to help you better understand California assault with a deadly weapon laws, our California criminal defense attorneys will address the following:

1. The Legal Definition of California Assault with a Deadly Weapon

1.1. Assault vs. battery in California

2. Penalties for Penal Code 245 ADW

2.1. ADW with a firearm
2.2. ADW on a law enforcement officer or firefighter
2.3. Assault with a deadly weapon and California's “three strikes” law

3. Legal Defenses to California Assault with a Deadly Weapon Charges

4. PC 245 Assault with a Deadly Weapon and Related Offenses

4.1. PC 240 simple assault
4.2. PC 242 California battery/battery causing serious bodily injury
4.3. PC 417 brandishing a weapon or firearm

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Assault Law Penal Code 240 PC; Legal Definition of Great Bodily Injury/Harm in California Law; Legal Definition of a “Wobbler” in California Law; Legal Definition of a California Misdemeanor; Legal Definition of a California Felony; The California Crime of Battery Penal Code 242 PC; Common Legal Defenses to California Crimes; Self-Defense/Defense of Others as a Legal Defense in California; California Criminal Juries; Misdemeanor (Summary) Probation in California; Felony (Formal) Probation in California; California's “Three Strikes” Law Defined and Explained; Battery Causing Serious Bodily Injury Penal Code 242(d) PC; and Penal Code 417 PC Brandishing a Weapon or Firearm.

1. The Legal Definition of California Assault with a Deadly Weapon

The legal definition of California assault with a deadly weapon, Penal Code 245 PC, focuses on certain “elements” of the crime. These are key facts that the prosecutor must prove for you to be guilty of ADW.

The “elements” of assault with a deadly weapon are:

  1. You performed an act that, by its nature, would probably result directly in the application of force to someone else;
  2. EITHER you performed that act with a deadly weapon, OR the act you performed would result in force that was likely to produce “great bodily injury”;
  3. You performed that act willfully;
  4. When you acted, you were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
  5. When you acted, you had the present ability to apply force with a deadly weapon, or force likely to produce great bodily injury.9
Law_20books_20gavel

Let's delve a bit more deeply into these elements of the crime of assault with a deadly weapon to better understand their meaning.

Application of force

The definition of “application of force” is any harmful or offensive touching. The slightest touching will count if it is done in a rude or offensive manner.10

A California assault with a deadly weapon can occur even if the touching involved did not or could not cause any sort of injury. It doesn't need to be direct either—it can be done indirectly by causing an object to touch the “victim.”11

And note that you don't need to actually have succeeded in applying force to the other person. All that is required is that you took some action that would probably have resulted in force being applied to them.12

Example: Ralph, a 16-year-old, wants to get revenge on a teacher who gave him a failing grade. So he uses a slingshot to fire rocks at her from across the school parking lot. None of the rocks actually hit her.

If the prosecutor can convince the jury that rocks fired from a slingshot are a potentially deadly weapon—then Ralph may be convicted of California Penal Code 245 assault with a deadly weapon.

With a deadly weapon

A “deadly weapon” in California law is defined as any object, instrument, or weapon which is used in a manner that makes it capable of producing—and likely to produce—death or great bodily injury.13

Naturally, this includes the obvious deadly weapons such as guns and knives. But other items which are not usually considered weapons can be deadly weapons if they are used in a way that could kill someone or cause them substantial harm.

Screwdriver
A screwdriver can be considered a "deadly weapon" under California ADW law.

Some examples include:

  • An unloaded gun (if it is used as to club or hit someone),14
  • A bottle (if it is used to attack someone),15
  • A pencil (if it is used to stab someone),16
  • A BB gun,17
  • A dog that will attack humans on command,18 and
  • A car (if it is used in an attempt to run someone down).19

Hands and feet, though, are not considered “deadly weapons”—the definition is limited to objects that are not part of one's body.20

BUT an assault using one's hands or feet can be considered an assault with a deadly weapon—if it is done with force likely to produce great bodily injury.21

Great bodily injury, in turn, is defined as significant or substantial physical injury—something greater than minor harm.22 This pretty vague definition means that, in practice, California criminal juries have a lot of discretion in determining what “great bodily injury” is.

Example: George, who has a black belt in karate, tries out some ferocious karate moves on Ben, without Ben's consent.

This may be considered assault with a deadly weapon, even though George is not using any weapon other than his hands. That is because, given George's skill level and what he is attempting to do, his karate moves involve force likely to produce great bodily injury.

Willfully

You act “willfully” when you do something willingly or on purpose. You do not need to have intended to

  • break the law,
  • hurt anyone else, or
  • gain any advantage.23

Example: Mario is driving his car with his girlfriend Anna in the passenger seat. They are in the middle of an angry fight. Anna decides to jump out of the car at a stoplight.

Mario then pursues Anna in his car, in a way that leads Anna and nearby witnesses to believe that he is trying to hit her with it.

Mario is charged with Penal Code 245 PC assault with a deadly weapon, and he argues that he is not guilty because he never actually intended to hit Anna with his car. But this is not a valid defense. He doesn't need to have intended to hit her to be guilty of ADW—he just needs to have intended to drive his car in the way that he did.24

Car_night

Aware that the act might lead to the application of force

It bears re-emphasizing that you don't need to have actually intended to use force against the “victim” for California assault laws to apply. You only need to have been aware that, under the circumstances, there was a good chance your actions would lead to force being applied.25

Example: Greg and Keith are competing for the same woman. One night Greg and his teenage son drive to Keith's house. Keith comes outside with a loaded gun and tells Greg to go away.

Keith then fires his gun at the right rear fender of Greg's truck, while Greg is standing near the driver's side door on the other side of the truck. Greg's son is getting into the car on the passenger (right) side when Keith is firing.

Keith did not intend to injure Greg or his son—he just wanted to intimidate them. But because he was aware that they were near the truck, and thus that there was a good chance of one of them being injured by the gun, he is guilty of Penal Code 245 assault with a deadly weapon.26

1.1. Assault vs. battery in California

The difference between assault (both Penal Code 240 simple assault, and Penal Code 245 assault with a deadly weapon) and battery is confusing to many people—especially since we often use the phrase “assault & battery,” which suggests that they are the same thing.

California assault and California battery are, in reality, completely different offenses. The major difference is that:

  • Assault, including PC 245 assault with a deadly weapon, is an action that may inflict physical harm or unwanted touching on someone else, and
  • Penal Code 242 battery is the actual infliction of force or violence on someone else.27

As Palm Springs criminal defense attorney Michael Scafiddi28 explains:

“The easiest way to explain the difference between assault, including assault with a deadly weapon, and battery is this: an assault doesn't necessarily involve any actual physical contact, whereas a battery does. Put another way, an assault is like an ‘attempted battery,' and a battery is like a ‘completed assault.'”

The following chart summarizes the differences between California simple assault, California assault with a deadly weapon, and California battery:

Img-battery-chart

2. Penalties for Penal Code 245 ADW

Under Penal Code 245 PC, assault with a deadly weapon is what is known as a wobbler. This is a crime that may be charged as either a misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal history.29

In practice, the factors that go into a prosecutor's decision about whether to charge ADW as a misdemeanor or a felony include:

  1. The type of weapon or instrument that was used to commit the alleged assault;
  2. Whether the alleged victim suffered any injury, and how severe the injury was; and
  3. Who the victim was (i.e., whether he or she was a law enforcement officer or other protected person).

For misdemeanor assault with a deadly weapon that is not a firearm, the potential penalties include:

And if assault with a deadly weapon that is not a firearm is charged as a felony, the penalties include:

2.1. ADW with a firearm

California assault with a deadly weapon carries stricter penalties if the deadly weapon you are alleged to have used is a firearm.

Specifically, if the ADW is supposed to have involved an ordinary firearm, then the offense is still a wobbler, with the same misdemeanor and felony penalties described above—EXCEPT that misdemeanor ADW with a firearm carries a minimum county jail sentence of six (6) months.32

But if the alleged assault with a deadly weapon involved a semiautomatic firearm, then the charge will always be a felony—and the potential state prison sentence increases to three (3), six (6) or nine (9) years.33

Machine_gun

Assault with a deadly weapon is also necessarily charged as a felony in cases involving

  • Machineguns,
  • Assault weapons, or
  • .50 BMG rifles.34

In those cases, the potential state prison term is four (4), eight (8) or twelve (12) years.35

2.2. ADW on a law enforcement officer or firefighter

California ADW law also imposes harsher penalties if:

  1. The alleged victim was a peace officer or firefighter who was engaged in the performance of his/her duties when the assault occurred, AND
  2. The defendant knew or reasonably should have known that the victim was a peace officer or firefighter engaged in the performance of his/her duties.36

Assault with a deadly weapon under these circumstances is always a felony.37 If no firearm was involved, then the sentence is three (3), four (4) or five (5) years in state prison.38

And if a firearm was involved, then the state prison sentence is:

  1. Four (4), six (6) or eight (8) years for an ordinary firearm;
  2. Five (5), seven (7) or nine (9) years for a semiautomatic firearm; and
  3. Six (6), nine (9) or twelve (12) years for a machinegun, assault weapon, or .50 BMG rifle.39

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    2.3. Assault with a deadly weapon and California's “three strikes” law

    Penal Code 245 assault with a deadly weapon can be a strike under California's “three strikes” law—IF the allegation is that you either

    • inflicted “great bodily injury” on someone in the commission of the ADW,
    • personally used a firearm in the commission of the ADW, or
    • committed assault with a deadly weapon against a peace officer.40

    This means that, if you have a “strike” assault with a deadly weapon conviction on your record and you are subsequently charged with any California felony, you will face twice the normal sentence for that felony.41

    And, if you accumulate three “strike” convictions—one or more of which may be a “strike” ADW conviction—then you will receive a sentence of 25 years to life in state prison.42

    3. Legal Defenses to California Assault with a Deadly Weapon Charges

    California assault with a deadly weapon law imposes harsh penalties for behavior that may not have even hurt anyone. These are terrible charges for anyone to have to face.

    To beat California assault with a deadly weapon charges, an experienced California criminal defense attorney may be able to help you assert some or all of these legal defenses:

    You did not actually use a deadly weapon or force likely to cause great bodily injury

    You are not guilty of ADW unless you used either

    • a deadly weapon, OR
    • force likely to produce great bodily injury.43

    The definition of “deadly weapon” can be trickier than you might think. A loaded gun or a butcher knife would almost certainly count—but what about an unloaded gun or a much duller kitchen knife?

    Knife

    And there is definitely some gray area involved in determining what “force likely to produce great bodily injury” really is.

    You acted in self-defense/defense of others

    The legal defense of self-defense/defense of others applies to assault with a deadly weapon charges when all of the following are true:

    1. You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
    2. You reasonably believed that the immediate use of force was necessary to defend against that danger; and
    3. You used no more force than was reasonably necessary to defend against that danger.44

    So, for example, if you were being physically threatened by another person—and you used a weapon to defend yourself—you may be able to fight assault with a deadly weapon charges on the basis of self-defense.

    You did not act willfully or with the required intent

    Acting “willfully” is an element of PC 245 assault with a deadly weapon.45

    Whatever actions gave rise to ADW charges may have been accidental—or they may have been misinterpreted by the alleged “victim.” If this is the case, you and your criminal defense attorney can make sure that the prosecutor and jury get the full story.

    You were falsely accused

    Penal Code 245 PC charges may be brought even when no one suffered an actual injury. Because of this, it is common for a person to falsely accuse someone else of committing assault with a deadly weapon, out of

    • anger,
    • jealousy, or
    • desire for revenge.
    Gavel

    An experienced California criminal defense lawyer has seen this situation before—and knows how to gather evidence and interview witnesses to make sure the true story comes out.

    4. PC 245 Assault with a Deadly Weapon and Related Offenses

    4.1. PC 240 simple assault

    If the prosecutor cannot prove that you used a deadly weapon or force likely to cause great bodily injury, then your charges may be reduced to Penal Code 240 PC simple assault.

    The elements of simple assault are exactly the same as those for assault with a deadly weapon—except that there is no requirement that a deadly weapon or a particular level of force be used.46

    Penal Code 240 PC simple assault is a misdemeanor. The penalties in most cases include a fine of up to one thousand dollars ($1,000) and/or up to six (6) months in county jail.47

    4.2. PC 242 California battery/battery causing serious bodily injury

    As we discussed above, the California crime of battery, Penal Code 242 PC, differs from an assault in that it requires that the defendant actually use force or violence against someone else.48

    But note that—as is the case with California assault with a deadly weapon—you can be guilty of battery in California even if you did not actually inflict an injury on the supposed victim. All that matters is that you succeeded in touching him/her in a harmful or offensive manner.49

    Battery is a misdemeanor, punishable by a fine of up to two thousand dollars ($2,000) and/or a county jail sentence of up to six (6) months.50

    But if you actually inflict a serious injury on the victim, then you will face the tougher penalties that go along with battery causing serious bodily injury, Penal Code 242(d) PC. This offense is a wobbler.51

    If it is charged as a California felony, battery causing serious bodily injury can lead to two (2), three (3) or four (4) years in prison.52

    4.3. PC 417 brandishing a weapon or firearm

    California Penal Code 417 PC prohibits drawing, exhibiting or using a firearm or a deadly weapon (also known as “brandishing” the weapon). If you brandish a deadly weapon or firearm in a rude, angry, or threatening manner, you could be charged with this offense.53

    Brandishing a weapon or firearm in most cases is a misdemeanor. The maximum county jail sentence is either six (6) months or one (1) year, depending on the circumstances of the offense.

    Because it carries lighter penalties than PC 245 assault with a deadly weapon, brandishing a weapon or firearm can be a useful plea bargain from assault with a deadly weapon charges.

    Call us for help

    Img-call-m

    For questions about Penal Code 245 PC assault with a deadly weapon, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

    We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

    For more information on Nevada “assault with a deadly weapon” laws, please see our page on Nevada “assault with a deadly weapon” laws.

    Legal References:


    1 Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment. (“(a)(1) 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. (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 machinegun, 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. (4) Any person who commits an assault upon the person of another 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. (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. (3) Any person who commits an assault with a machinegun, 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, 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, shall be punished by imprisonment in the state prison for 6, 9, or 12 years.”)

    2 Penal Code 240 PC – Assault defined [assault is a component of PC 245 assault with a deadly weapon]. (“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”)

    3 Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment, endnote 1, above.

    4 See same.

    5 See same.

    6 See same.

    7 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was].”)

    8 Penal Code 242 PC – Battery defined [contrast to definition of California assault with a deadly weapon]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)

    9 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“The defendant is charged [in Count ] with assault with (force likely to produce great bodily injury/a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) [in violation of Penal Code section 245]. To prove that the defendant is guilty of this crime, the People must prove that: <Alternative 1A—force with weapon> [1 The defendant did an act with (a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) that by its nature would directly and probably result in the application of force to a person;] <Alternative 1B—force without weapon> [1A The defendant did an act that by its nature would directly and probably result in the application of force to a person, and 1B The force used was likely to produce great bodily injury;] 2 The defendant did that act willfully; 3 When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND] 4 When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon other than a firearm/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person(;/.)<Give element 5 when instructing on self-defense or defense of another.>[AND 5 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)

    10 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“[The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.] [The touching can be done indirectly by causing an object [or someone else] to touch the other person.] [The People are not required to prove that the defendant actually touched someone.]”)

    11 See same.

    12 See same.

    13 People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538. ("As used in section 245 [California's assault with a deadly weapon law], ... a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'")

    14 See, e.g., People v. Rodriguez (1999) 20 Cal.4th 1, 11-14.

    15 People v. Brown (2012) 210 Cal.App.4th 1, 6-7. (“The Supreme Court has explained [California Penal Code] section 245 contemplates two categories of deadly weapons: In the first category are objects that are “deadly weapons as a matter of law” such as dirks and blackjacks because “the ordinary use for which they are designed establishe[s] their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.” (Aguilar, at p. 1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204; accord, In re David V. (2010) 48 Cal.4th 23, 30, fn. 5, 104 Cal.Rptr.3d 471, 223 P.3d 603; see Aguilar, at p. 1030, 68 Cal.Rptr.2d 655, 945 P.2d 1204 [“deadly weapons or instruments not inherently deadly are defined by their use in a manner capable of producing great bodily injury”].) For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon within the meaning of section 245, subdivision (a)(1), when used in a manner capable of producing and likely to produce great bodily injury.”)

    16 See same.

    17 See same, at 8.

    18 People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 6. (“We hold that, depending upon the circumstances of each case, a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a “deadly weapon or instrument” within the meaning of [Penal Code] section 245 [California's ADW law].”)

    19 People v. Golde (2008) 163 Cal.App.4th 101, 108-09.

    20 People v. Aguilar (1997) 16 Cal.4th 1023. (“The term "deadly weapon" implies an object extrinsic to the body. However, the use of hands or feet may constitute an assault by means of force likely to produce great bodily injury.”)

    21 See same.

    22 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]”)

    23 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”)

    24 Based on People v. Golde, endnote 19, above.

    25 CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.”)

    26 Based on the facts of People v. Williams (2001) 26 Cal.4th 779.

    27 Compare Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment, endnote 1, above, with Penal Code 242 PC – Battery defined, endnote 8, above.

    28 Palm Springs criminal defense attorney Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to assault with a deadly weapon to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm SpringsHemet, Riverside, Barstow and Victorville.

    29 Penal Code 245 PC – Assault with deadly weapon or force likely to produce great bodily injury; punishment, endnote 1, above.

    30 See same.

    31 See same.

    32 See same.

    33 See same.

    34 See same.

    35 See same.

    36 See same.

    37 See same.

    38 See same.

    39 See same.

    40 Penal Code 1192.7(c) PC – Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section. ("(c) As used in this section, "serious felony" means any of the following: . . . (8) any felony [including assault with a deadly weapon] in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony [including assault with a deadly weapon] in which the defendant personally uses a firearm; . . . . (11) assault with a deadly weapon or instrument on a peace officer.")

    41 Penal Code 667(e)(1) PC - Three strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony conviction [including some forms of assault with a deadly weapon]: (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions [including some forms of assault with a deadly weapon] as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.)”)

    42 See same.

    43 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)), endnote 9, above.

    44 CALCRIM 3470 - Right to Self-Defense or Defense of Another (Non-Homicide [with respect to acts involving California assault with a deadly weapon]). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

    45 CALCRIM 875 – Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)), endnote 9, above.

    46 CALCRIM 915 – Simple Assault (Pen. Code, § 240) [compare to elements of assault with a deadly weapon]. (“The defendant is charged [in Count ] with assault [in violation of Penal Code section 240]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant did an act that by its nature would directly and probably result in the application of force to a person; 2 The defendant did that act willfully; 3 When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND] 4 When the defendant acted, (he/she) had the present ability to apply force to a person(;/.) <Give element 5 when instructing on self-defense or defense of another.> [AND 5 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)

    47 See same.

    48 Penal Code 242 PC – Battery defined, endnote 8, above.

    49 CALCRIM 960 – Simple Battery [compare to elements of the crime of assault with a deadly weapon]. (“The slightest touching can be enough to commit a battery if it is done in a rude or angry way.")

    50 Penal Code 243 PC – Battery; punishment [compare to penalties for assault with a deadly weapon]. (“(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.”)

    51 Penal Code 243 PC – Battery; punishment [compare to penalties for assault with a deadly weapon]. (“(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)

    52 See same.

    53 Penal Code 417 PC – Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers [compare to Penal Code 245 penalties]. (“(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”)

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