The crime of assault with a deadly weapon occurs whenever a perpetrator wrongfully attempts to injure another person by the use of a deadly weapon. The law defines a deadly weapon as any instrument likely to cause great bodily injury. The category that includes guns and knives as well as objects such as motor vehicles, beer bottles and pencils when used in a violent manner.
In California, ADW is defined in Penal Code 245 a 1 PC, which states that "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.”
- trying to stab someone with a broken beer bottle.
- throwing a hammer at someone in a fight.
- telling a pit bull to attack a person.
Getting arrested or charged with ADW does not necessarily mean the accused will be convicted. Common defenses include showing that
- the object was not a deadly weapon,
- the actions were not willful, and/or
- the person acted in lawful self-defense.
A violation of this code section is a wobbler offense. This means that a prosecutor can charge it as either:
Misdemeanor ADW is punishable by custody in county jail for up to one year.
Felony ADW is punishable by imprisonment in state prison for up to four years.
These penalties grow more severe if a firearm gets used in the commission of the assault.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is assault with a deadly weapon?
- 2. Can "assault with a deadly weapon" charges be dropped?
- 3. What are the penalties for 245 a 1 PC?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. What is assault with a deadly weapon?
Under California law, a prosecutor must prove the following to convict a defendant of ADW:
- he performed an act that, by its nature, would probably result in the direct application of force to someone else,
- he performed that act with either a deadly weapon, or with force that was likely to produce “great bodily injury,”
- the defendant performed the act willfully,
- when he acted, he was 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
- when the defendant acted, he had the present ability to apply force with a deadly weapon, or force likely to produce great bodily injury.1
Note that the “victim” of an ADW does not have to get injured for a criminal charge. The focus is on whether the accused's act could have resulted in the application of force. It is not on whether the force was actually applied.2
Questions often arise under this code section on the meaning of:
- application of force,
- deadly weapon,
- great bodily injury, and
1.1. Application of force
The definition of “application of force,” under PC 245 a 1, is any:
- harmful, or
- offensive touching.
The slightest touching will count if it is done in a rude or offensive manner.3
An assault with a deadly weapon can occur even if the touching was not direct. The touching can be done indirectly. For example, a person causing an object to touch the “victim.”4
And note that it is not necessary that an accused succeeded in applying force to the other person. All that is required is that:
- he took some action that,
- would probably have resulted in force being applied to the other person.5
Example: Jenny gets into a heated argument with her neighbor. She throws several rocks (deadly weapons) at him in anger. Only one rock barley touches the neighbor's sleeve. Here, Jenny could be charged with ADW. She was in anger, the rocks were potentially harmful, and one slightly touched the neighbor.
Note that a charge could still be brought if none of the rocks hit the neighbor. No force has to actually be applied for a charge under this statute.
1.2. Deadly weapon
For purposes of this statute, a “deadly weapon” is:
- any object or weapon,
- which is capable of producing death or great bodily injury.6
This definition includes the obvious deadly weapons such as:
- guns, and
But other objects can be deadly weapons if they are used in a way that could:
- kill someone, or
- cause them substantial harm.
Some examples include:
- an unloaded gun (if used to club or hit someone),7
- a bottle (if used to attack someone),8
- a pencil (if used to stab someone),9
- a BB gun,10
- a dog that will attack humans on command,11 and
- a car (used in an attempt to run someone down).12
1.3. Great bodily injury
California law defines great bodily injury as:
- significant, or
- substantial physical injury.
This means something greater than minor harm.13
Examples of great bodily injuries are:
- broken bones,
- gunshot wounds,
- dog bites,
- lacerations, and
- black eyes.
Under this law, a person acts “willfully” if he does something willingly or on purpose. It is not necessary that the person intended to:
- break the law,
- hurt anyone, or
- gain any advantage.14
Example: Mark and Anthony are on a neighborhood softball league. During a game, the two get into a bad argument. Mark grabs a softball and throws it near Anthony. The ball ricochets of a fence and hits him.
Mark is charged with ADW. He says, in defense, that he is not guilty because he never intended to hit Anthony with the ball. This is not a valid defense. It doesn't matter if he didn't intend to hit Anthony. It only matters that he purposefully threw the ball in his direction.
2. Can "assault with a deadly weapon" charges be dropped?
A defendant can potentially get ADW charges dropped by asserting a legal defense. Three common defenses are:
- no deadly weapon,
- no willful act, and/or
2.1. No deadly weapon
A defendant is only guilty under this law if he committed an assault with a deadly weapon. This means it is a defense for an accused to show that:
- even if he committed an assault,
- he did not do so with a deadly weapon.
An accused can support his defense by highlighting certain facts to show the object he had was not deadly. For example, maybe he threw a balloon at another person.
2.2. No willful act
Please recall that a defendant is only guilty under PC 245 a 1 if he acted willfully. It is a valid defense, therefore, for an accused to show that he did not act with this intent. Perhaps, for example, he committed an act on accident and without a specific purpose.
A defendant can try to beat an ADW charge by saying that he acted in self-defense.
This defense will work if the accused:
- believed that he was in “imminent danger,”
- believed that force was necessary to stop the danger, and
- used an appropriate level of force in defense.15
Example: Kelly is walking home at night. A man jumps out from an alley and says he is “going to make her feel right.” Kelly grabs a bottle and throws it at the man.
Here, Kelly does commit an assault with a deadly weapon. But she is not guilty of the rime because she acted in self-defense. She reasonably believed that she was going to be raped. Force was necessary to get away. And she used an appropriate level of force.
3. What are the penalties for 245 a 1 PC?
245 a 1 PC is charged as a wobbler offense if the deadly weapon that was used was not a firearm. ADWs committed with a firearm are discussed in 3.1 below.
A wobbler is a crime that a prosecutor can charge as either:
- a misdemeanor, or
- a felony.
If charged as a misdemeanor, the crime is punishable by:
- misdemeanor (or summary) probation,
- custody in county jail for up to one year, and/or
- a maximum fine of $1,000.16
If charged as a felony, the offense is punishable by:
- felony (or formal) probation,
- imprisonment in state prison for up to four years, and/or
- a maximum fine of $10,000.17
Note that these penalties will change if an assault with a deadly weapon case:
- involved a firearm, or
- was committed on a police officer or firefighter.
3.1. ADW with a firearm
If an ADW was committed with an ordinary firearm, then the offense is still charged as a wobbler. The penalties are the same as those outlined above. The only change is that misdemeanor convictions carry a minimum jail term of six months.18
An ADW conviction will be a straight felony if it was committed with:
- a semiautomatic gun,
- a machinegun,
- an assault weapon, or
- a .50 BMG rifle.19
The penalties in these cases can include a prison term of up to twelve years.20
3.2. ADW on a police officer or firefighter
Assault with a deadly weapon is charged as a straight felony if:
- the alleged victim was a police officer or firefighter, and
- the defendant knew or reasonably should have known this.21
In these situations, the crime is punishable by up to five years in state prison.22
If the crime was committed with a firearm, then the prison term could rise to 12 years.23
4. Are there immigration consequences?
A conviction of ADW weapon may have negative immigration consequences.
The law states that if a non-citizen commits an aggravated felony, then:
The law states that felony ADW is:
- a crime of violence, and as such
- is an aggravated felony.24
This means negative consequences ensue if a defendant is convicted of a felony under PC 245a.
5. Can a person get a conviction expunged?
A person convicted of this crime can get an expungement. This is true provided that the defendant successfully completes:
- probation, or
- a jail term (whichever is relevant).
If a party violates a probation term, a judge may still award expungement.
Penal Code 1203.4 PC says an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.25
6. Does a conviction affect gun rights?
A conviction under this statute may have negative effects on the defendant's gun rights.
California law says that convicted felons cannot:
- own a gun, or
- possess a gun.
Recall that ADW can be charged as either a misdemeanor or a felony. If an accused is charged, and convicted of, felony ADW, then he will lose his gun rights.
7. Are there related offenses?
There are three crimes related to ADW. These are:
- brandishing a weapon or firearm – PC 417,
- assault on a public official – PC 217.1, and
- failing to control a dangerous animal – PC 399.
7.1. Brandishing a weapon or firearm – PC 417
Penal Code 417 PC is the California statute that defines the crime of brandishing a firearm or deadly weapon. A person commits this offense by:
- drawing or exhibiting a deadly weapon or a firearm, or
- using a deadly weapon in a fight.
Note that unlike ADW, a PC 417 conviction does not require proof of an assault.
7.2. Assault on a public official – PC 217.1
Per Penal Code 217.1 PC, a person commits the crime of assault on a public official when:
- he commits an assault,
- he commits this assault against a public official, and
- he commits the assault either in retaliation for, or to prevent the performance of, the public official's official duties.
Unlike ADW, a person is guilty of this crime even if he did not use a deadly weapon in the commission of the assault.
7.3. Failing to control a dangerous animal – PC 399
Penal Code 399 PC is California's criminal law on failure to control a dangerous animal. The owner of a dangerous animal commits this offense when:
- he willfully lets the animal run free or doesn't use ordinary care in keeping it, and
- as a result, another person is killed or suffers serious bodily injury.
A person can commit an assault with a deadly weapon with a dangerous animal if:
- the animal can attack on demand, and
- the person gives the demand to attack.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on ADW charges in Nevada and Colorado, please see our articles on
CALCRIM No. 875 - Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury. Judicial Council of California Criminal Jury Instructions (2017 edition).
People v. Aguilar (1997) 16 Cal.4th 1023.
CALCRIM No. 875 - Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury.
See same. See also People v. Lara (1996) 44 Cal.App.4th 102.
CALCRIM No. 3470 - Right to Self-Defense or Defense of Another. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Humphrey (1996) 13 Cal.4th 1073.
California Penal Code 245a1 PC.
Penal Code 245a PC.
California Penal Code 1203.4 PC.