Assault with a Deadly Weapon (ADW)

California Penal Code 245(a)(1)

A Penal Code 240 "simple assault" is an unlawful attempt, coupled with a present ability, to commit a violent injury on another person.¹ California Penal Code 245(a)(1) defines assault with a deadly weapon (commonly referred to as an ADW or aggravated assault) as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another.²

An ADW charge is what’s known as a wobbler. A "wobbler" is a crime that...depending on the circumstances...prosecutors can opt to file as either a misdemeanor or a felony. With respect to a California aggravated assault charge, this decision is primarily based on three factors:

1. the type of weapon or instrument used to commit the alleged ADW,



2. whether the person whom you allegedly assaulted sustained an injury (and if so, the severity of the injury), and



3. the nature of the victim (that is, whether the alleged victim an officer, firefighter, or other "protected" person).

California Assault and Battery Laws at a Glance

Many innocent people in California get wrongfully accused of assault with a deadly weapon. Accusers often exaggerate or outright lie to the police. The person accused often acted in lawful self defense, or without the intent to hurt anybody.

A skilled defense attorney who practices California ADW law can help you fight these sorts of unjust ADW charges!

In this article, our California criminal defense attorneys will provide a comprehensive guide to understanding Penal Code 245(a)(1) PC by addressing the following:

1. How Does the Prosecutor Prove that I Committed an Assault with a
Deadly Weapon?

2. What is a Deadly Weapon?

3. What is a "Means of Force" Likely to Produce Great Bodily Injury?

4. What is Great Bodily Injury under California
ADW Law?

5. Related Offenses: The Difference between Assault and Battery under California Law

6. Penalties, Punishment, and Sentencing for Penal Code 245(a)(1) California
Aggravated Assault

7. Aggravated Assault and California’s Three Strikes Law

8. How Do I Defend Against A California ADW Charge?

If, after reading this article, you have additional questions, we invite you to contact us.

You may also find helpful information in our related articles on California Penal Code 240 Assault, California Penal Code 242 Battery, and California Self-Defense Law.

1. How Does the Prosecutor Prove that I Committed an Assault with a Deadly Weapon?

In order to convict you of California Penal Code 245(a)(1) assault with a deadly weapon, prosecutors must prove two facts (otherwise known as "elements of the crime"):

1. that you assaulted someone, and



2. that the assault was committed with a deadly weapon or other means of force likely to cause great bodily injury.³

The prosecutor doesn’t need to prove that you injured another person or that you even actually made physical contact with another person⁴...all that matters is that you had the ability and intent to severely injure the other person.

This photograph was originally taken by Flickr user Lena/OnTask and the original photo can be found here.

If you attack and harm someone with a knife you can be charged under California Penal Code Section 245(a)(1) for assault with a deadly weapon.

2. What is a Deadly Weapon?

We typically think of deadly weapons as being something obvious like a gun or knife. However, everyday "innocent" objects or instruments will qualify when used in ways that are likely to result in severe harm to another.

California’s Penal Code section 245(a)(1) defines "deadly weapon" as an object, instrument, or weapon that is capable of producing and likely to produce death or great bodily injury.⁵ Hands and feet are not considered "deadly weapons", as the definition is limited to objects that are not part of one’s body.⁶

Let’s look at some situations where otherwise "innocent" objects will qualify as deadly weapons when used to intentionally harm another.

Examples:

• Swinging a beer bottle at another



• Threatening to stab another in the neck with a sharp pencil



• Ramming your car into another person or another’s car (while the individual is inside)

All of these items...the bottle, pencil, and vehicle...are perfectly innocent when used normally. However, "deadly weapon" is a catchall and can include anything (other than a body part) that has the ability to cause substantial harm to another if used in a threatening way. This means that

This photograph was originally taken by Flickr user Vincent Wagner and the original photo can be found here.

Even an innocent object like a sharp pencil can qualify as a “deadly weapon” when it is used to intentionally harm someone.

• a beer bottle,



• a pencil,



• a dog,



• a cigarette lighter,



• steel-toed boots,



• a car,



• a rock, or



• anything else (when used in a manner likely to harm another)

qualifies as a "deadly weapon" pursuant to Penal Code 245 (a) (1) PC.

3. What is a "Means of Force" Likely to Produce Great Bodily Injury?

As previously stated,

• hands,



• feet, and



• other body parts

do not qualify as deadly weapons under California ADW law. However, if you use your body to inflict "great bodily injury" on another, you can still trigger an ADW charge. This is because California Penal Code 245(a)(1) penalizes those who assault another with

1. deadly weapons,



2. instruments other than firearms, and



3. any means of force likely to produce great bodily injury.⁷

This means that if you

• bite,



• punch or hit,



• scratch,



• choke, or



• kick

another person in a manner that is likely to cause substantial harm to another, you could face California ADW charges. An example would be repeatedly kicking another who is lying defenseless on the ground.

How you use your body is the critical question. If, for example, you punch someone one time, it may be enough to injure the person...but it probably wouldn’t be sufficient to justify an ADW charge. The charge turns on whether the force is likely to cause great bodily injury.

This photograph was originally taken by Flickr user Polina Sergeeva and the original photo can be found here.

Hands and feet are not considered “deadly weapons” under California law. But if you assault someone with your hands or feet you can still be charged with ADW if the assault is one that is likely to cause great bodily injury to another.

4. What is Great Bodily Injury under California
ADW Law?

Under California law, great bodily injury (GBI) is a significant or substantial injury.⁸ It is not supposed to be a trivial, insignificant, or even moderate injury.⁹ But Michael Scafiddi, one of San Bernardino’s top criminal defense attorneys¹⁰, tells us that "overzealous prosecutors sometimes allege great bodily injury even if something as slight as a ‘red-mark’ appears."

Obviously, brain damage and paralysis qualify as great bodily injury. However, the injury doesn’t have to be permanent.¹¹ For the most part, what constitutes GBI is determined on a case-by-case basis. Prosecutors, judges, and/or juries consider factors such as the severity of the injury, the resulting pain, and/or any required medical care.

Examples of great bodily injury include (but are not limited to):

• broken bones,



• a dog bite (if you commanded your dog to bite another),



• torn teeth,



• a black eye, and



• cuts requiring stitches.

While California courts have considered all of the above "great bodily injury," it doesn’t mean that they always will.¹² Again, what constitutes GBI varies case-to-case and is a fact that is left up to the judge and/or jury to determine.¹³

It is important to remember that prosecutors can charge you with ADW for using force that is likely to result in great bodily injury. Your alleged act doesn’t actually have to result in great bodily injury...it just must be capable of resulting in it.

If the end result is actual GBI, prosecutors will likely charge you with a sentencing "enhancement" which means an additional three to six years punishment in the California State Prison and a "strike" (for purposes of the California Three Strikes Law) on your record.¹⁴

5. Related Offenses: The Difference between Assault and Battery under California Law

Assault and battery are often lumped together into one phrase, making it seem like they are a single crime. But California law actually defines assault and battery differently.

• A California Penal Code 242 battery requires some type of offensive, painful, harmful or violent physical contact.¹⁵



• A California Penal Code 240 assault only requires an attempt that is likely to result in an injury -- no physical contact is actually necessary.¹⁶

If an assault results in an injury, there would be an assault and a battery. However, if there is never any actual physical contact...and only the threat of harm, or an unsuccessful attempt to harm...an assault would be the appropriate charge and would stand alone.

6. Penalties, Punishment, and Sentencing for Penal Code 245(a)(1) California Aggravated Assault

California ADW is a "wobbler". This means that prosecutors can charge Penal Code 245(a)(1) "assault with a deadly weapon" as either a misdemeanor or a felony.¹⁷ Which one you face typically depends on:

1. the weapon or instrument used to commit the assault,



2. the extent of any sustained injuries, and



3. the nature of the victim.

While actual penalties vary case-by-case, below are the guidelines for sentencing this offense.

Misdemeanor ADW penalties (a judge may impose any or all of the following)¹⁸:

If you used a deadly weapon (other than a firearm) or means likely to produce GBI, you face:

• informal (also called "summary") probation for up to 5 years



• a maximum one-year county jail sentence



• a maximum $10,000 fine



• victim restitution (if applicable)



• confiscation of the weapon (if you own it)



• possible community service and attendance in anger management classes.

If you used a firearm:

• all of the above apply, but the jail sentence is increased to a minimum of six months¹⁹

Felony ADW penalties (again, a judge may impose any or all of the following):

If you used a deadly weapon (including a "generic" firearm) or means likely to produce GBI, you face²⁰:

• 2-4 years in the California State Prison



• a maximum $10,000 fine



• victim restitution



• a "strike" on your record



• confiscation of the weapon (if you own it)

If you used specific firearms (including machine guns, certain semiautomatic weapons classified as "assault weapons" or a .50 BMG rifle), you face²¹:

• 4, 8, or 12 years in the state prison, and



• the additional penalties described above

If you used unspecified semiautomatic firearms, you face²²:

• 3, 6, or 9 years in the state prison, and



• the additional punishments outlined above

And with respect to ADW on a peace officer or other protected person...

Even if you didn’t use a firearm...but you knew or reasonably should have known that the alleged victim was an on-duty peace officer or firefighter...the sentence may be increased to 3-5 years.²³

If you used any of the firearms described above to commit an ADW on a peace officer, firefighter, or other protected individual, your sentence increases from 4 to 12 years.²⁴

The additional conditions described above also apply.

7. Aggravated Assault & California’s Three
Strikes Law

A felony aggravated assault conviction will result in a "strike" on your record if:

1. the offense resulted in great bodily injury (defined above), or



2. you used a firearm, or



3. you used a deadly weapon or firearm on an officer.²⁵

If you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.²⁶

If charged with a third felony and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.²⁷

8. How Do I Defend Against A California
ADW Charge?

Because there is no requirement that the alleged victim sustain any injury in connection with an ADW charge, it is easy to be falsely accused of and wrongfully arrested for this crime. This is one of the reasons why it is critical to consult with a skilled California criminal defense attorney. Below are examples of the types of defenses that such an attorney could present on your behalf.

• Inability to actually carry out the assault (for example, threatening to shoot the alleged victim with an unloaded gun)



• Self-defense / defense of others (In order to assert this defense, you must (1) have an honest and reasonable belief that bodily injury is about to be inflicted on you or another, and (2) only counter with as much force as is reasonably necessary to ward off the injury). For a more complete discussion, visit our page on California self defense laws.



• Consent (participation in a fight club, for example)



• Lack of intent (example – throwing a baseball at the wall when it accidentally hits a woman, knocks her to the ground, and renders her unconscious)



• Insufficient evidence (no witnesses to corroborate the alleged victim’s accusation)



• Law enforcement didn’t follow proper arrest/investigation procedures (for example, Miranda rights weren’t read prior to interrogation).

If you have additional questions about California assault with a deadly weapon law, or would like to discuss your case confidentially with one of our California ADW defense attorneys, please don’t hesitate to contact us.

We have local criminal law offices in Los Angeles, the San Francisco Bay area, San Jose, Ventura, Orange County, San Bernardino, Rancho Cucamonga, Riverside, the San Fernando Valley, San Diego, and many nearby areas.

Visit our page on Las Vegas Nevada "Assault with a Deadly Weapon" Laws for a discussion of how this crime is treated under Nevada law.

Additional Resources:

Definition of Assault-
Elements of the crime of assault, variations in assault law by jurisdiction, history of the crime of assault

National Center for the Victims of Crime-
Information and resources for victims of violent crimes.

California Coalition Against Sexual Assault-
Resources for the prevention of sexual assault in California.

Nevada Law on Criminal Assault-
Explanation of assault law in Las Vegas, Nevada.

Legal References:

¹California Penal Code 240 PC -- Assault defined. ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")

²California Penal Code 245(a)(1) -- Assault with deadly weapon [ADW] 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 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.")

³California Jury Instructions -- Criminal. CALJIC 9.02 -- Assault With a Deadly Weapon [ADW] or by Means of Force Likely to Produce Great Bodily Injury or With Firearm. ("In order to prove this crime, each of the following elements must be proved: [1] A person was assaulted; and [2] The assault was committed [with a deadly weapon or instrument, other than a firearm] [or] [by means of force likely to produce great bodily injury] [with a firearm].")

⁴Judicial Council Of California Criminal Jury Instruction 875 -- Assault With Deadly Weapon [ADW] or Force Likely to Produce Great Bodily Injury. ("[The People are not required to prove that the defendant actually touched someone.]" and "No one needs to actually have been injured by defendant's act. ")

⁵People v. Lochtefeld (2000), 77 Cal.App.4th 533, 538. ("As used in section 245, ... 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.'")

⁶See CALJIC 9.02, endnote 3, above. ("The hand or foot cannot be a weapon, as used in Penal Code § 245(a)(1) [assault with a deadly weapon]. 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. (People v. Aguilar, 16 Cal.4th 1023, 68 Cal.Rptr.2d 655, 945 P.2d 1204 (1997).)")

⁷See California Penal Code 245(a)(1) assault with a deadly weapon, endnote 2, above.

⁸California Penal Code 12022.7 PC -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(f) As used in this section [with respect to California ADW law], "great bodily injury" means a significant or substantial physical injury.")

⁹See CALJIC 9.02, endnote 3, above. ("["Great bodily injury" refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm.]")

¹⁰Michael Scafiddi, one of San Bernardino’s top criminal defense attorneys uses his former experience as a police officer and police sergeant to help those accused of ADW and other California crimes in the San Gabriel Valley and Inland Empire.

¹¹People v. Escobar (1992) 3 Cal.4th 740, 750. ("[With respect to great bodily injury and California assault with a deadly weapon law] Clearly, the latter standard contains no specific requirement that the victim suffer "permanent," "prolonged" or "protracted" disfigurement, impairment, or loss of bodily function.")

¹²While juries have considered all of these listed injuries as great bodily injuries [with respect to a California ADW], People v. Nava (1989), 207 Cal.App.3d 1490 points out the fact that every case must be independently evaluated, as there is no generic category of what qualifies as GBT without a determination of the quality of that injury.

¹³Escobar, endnote 10, above. ("[With respect to California ADW law] It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. " 'Whether the harm resulting to the victim ... constitutes great bodily injury is a question of fact for the jury.")

¹⁴California Penal Code 12022.7 PC -- California Three Strikes Law...Violent felonies. Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including a California ADW] shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including a California assault with a deadly weapon] which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony [including California Penal Code 245(a)(1)] shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony [including a California ADW] shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.") See also California Penal Code 667.5 -- Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice...") See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California’s Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

¹⁵California Penal Code 242 PC -- Battery defined. ("A battery is any willful and unlawful use of force or violence upon the person of another.") See also Judicial Council Of California Criminal Jury Instruction 960 -- Simple battery. ("The slightest touching can be enough to commit a battery if it is done in a rude or angry way.")

¹⁶See Penal Code 240 PC -- California simple assault, endnote 1, above.

¹⁷See California Penal Code 245(a)(1) assault with a deadly weapon, endnote 2, above.

¹⁸See same. See also Penal Code 245 PC subsection "e". ("(e) When a person is convicted of a violation of this section [California ADW] in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by [Penal Code] Section 12028.")

¹⁸See Penal Code 245(a)(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.")

²⁰See same. See also California Penal Code 245(a)(1) assault with a deadly weapon, endnote 2, above.

²¹See Penal Code 245(a)(3) PC ADW. ("(3) Any person who commits an assault upon the person of another with a machinegun, as defined in [Penal Code] Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.")

²²See California Penal Code 245(b) ADW. ("(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.")

²³See California Penal Code 245(c). ("(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.")

²⁴See California Penal Code 245(d) ADW upon a peace officer. ("(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 [California Penal Code section] 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, 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.")

²⁵California Penal Code 1192.7(c). ("As used in this section [with respect to California ADW law], ‘serious felony’ means...(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm...(11) assault with a deadly weapon or instrument on a peace officer.") See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California’s Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

²⁶California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California 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 a prior felony conviction: (1) If a defendant has one prior felony conviction 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) If a defendant has two or more prior felony convictions 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 greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")

²⁷See same.

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