Penal Code § 245(a)(1) PC – Assault with a Deadly Weapon

Penal Code § 245(a)(1) PC (assault with a deadly weapon) is defined as attacking or attempting to attack another person with a weapon capable of causing death or great bodily injury. Prosecutors can charge this offense as a misdemeanor or a felony, and it carries a maximum sentence of up to 4 years in jail or prison.

Assault with a deadly weapon is often referred to as

• “ADW” or
• aggravated assault.

The crime of assault (Penal Code 240 PC) is the unlawful attempt to violently injure someone.

Examples

• 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.

Defenses

Getting arrested or charged with ADW does not necessarily mean you will be convicted. We have been able to get these charges dismissed by showing that

• you acted in lawful self-defense,
• the object was not a lethal weapon,
• your actions were not willful, and/or
• you were falsely accused.

Penalties

ADW without a firearm	Misdemeanor: Up to 1 year in jail and/or up to $1,000 or Felony: Up to 4 years in prison and/or up to $10,000
ADW with an ordinary firearm (revolver, pistol, etc.)	Misdemeanor: 6 months to 1 year in jail and/or up to $1,000 or Felony: Up to 4 years in prison and/or up to $10,000
ADW with a semiautomatic firearm, a machinegun, an assault weapon, or a .50 BMG rifle	Felony: Up to 12 years in prison
ADW on a police officer or firefighter	Felony: Up to 5 years in prison without a firearm or up to 12 years in prison with a firearm

Our California criminal defense lawyers will explain the following in this article:

• 1. What is assault with a deadly weapon?
  • 1.1. Application of force
  • 1.2. Deadly weapon
  • 1.3. Great bodily injury
  • 1.4. Willfully
• 2. Can ADW charges be dropped?
  • 2.1. Self-defense
  • 2.2. No deadly weapon
  • 2.3. No willful act
  • 2.4. False accusations
• 3. What is the sentencing for 245(a)(1) PC?
  • 3.1. ADW with a firearm
  • 3.2. ADW on a police officer or firefighter
• 4. Does “assault with a deadly weapon” count as a “strike” in California?
• 5. Are there immigration consequences?
• 6. Can I get my conviction expunged?
• 7. Does a conviction affect gun rights?
• 8. Are there related offenses?
  • 8.1. Brandishing a weapon or firearm – PC 417
  • 8.2. Assault on a public official – PC 217.1
  • 8.3. Failing to control a dangerous animal – PC 399

1. What is assault with a deadly weapon?

Under California law, a prosecutor must prove the following to convict you of ADW:

1. you performed an act that, by its nature, would probably result in the direct application of force to someone else,
2. you performed that act with either a lethal weapon, or with force that was likely to produce “great bodily injury,”
3. you performed the 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 lethal weapon, or force likely to produce great bodily harm.¹

Note that the “victim” of an ADW does not have to get injured for a criminal charge. The focus is on whether your 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,
• serious injury, and
• willfully.

1.1. Application of force

The definition of “application of force,” under PC, is any:

• harmful, or
• offensive touching.

The slightest physical contact will count if it is done in a rude or offensive manner.³

An assault with a lethal weapon can occur even if the touching was not direct. The touching can be done indirectly – for example, causing an object to touch the “victim.”⁴

Note that it is not necessary that you 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 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 barely 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 type of weapon or object,
• which is capable of producing death or great bodily injury.⁶

This definition includes the obvious lethal weapons such as:

• guns, and
• knives.

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.

1.4. Willfully

Under this law, you act “willfully” if you do something willingly or on purpose. It is not necessary that you 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 off 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 does not matter if he did not intend to hit Anthony. It only matters that he purposefully threw the ball in his direction.

2. Can ADW charges be dropped?

Through aggressive investigation, negotiation and litigation, we routinely get ADW charges dropped by asserting one or more of these four defenses:

1. self-defense,
2. no deadly weapon,
3. no willful act, and/or
4. false accusations

2.1. Self-defense

To win on a self-defense claim for PC 245 a 1 charges, we would show the prosecutors that you:

• believed that you were in “imminent danger,”
• believed that force was necessary to stop the danger, and
• used an appropriate level of force in defense.¹⁵

Helpful evidence we frequently rely on includes surveillance video, eyewitness accounts, and medical expert testimony.

Example: Kelly is walking home at night when 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 lethal weapon, though she is not guilty of the crime because she acted in self-defense. Fortunately there was an eyewitness who could back up Kelly’s story that she reasonably believed that she was going to be raped and that force was necessary to flee.

2.2. No deadly weapon

You are only guilty of violating PC 245 a 1 if you committed an assault with a lethal weapon. This means it is a defense to show that:

1. even if you committed an assault,
2. you did not do so with use of a deadly weapon.

We typically support this defense by highlighting certain facts to show the object you had was not deadly. We may also hire a weapons expert to testify that the object you used does not qualify as deadly.

If we can show the brick, pipe, glass, or other object you wielded was not deadly, the D.A. may agree to reduce the felony assault charge down to simple assault.

2.3. No willful act

The most effective defense Shouse Law Group relies on in ADW cases is to show that you had no criminal intent. The reason is that intent is not something tangible that can be shown to a jury, and we use that to our advantage when raising a reasonable doubt to the prosecutor.

Perhaps, for example, you committed an act by accident and without a specific purpose. Or maybe we can call upon a medical expert to show that you were in the midst of a medical episode such as a seizure where you could not control your movements.

We have a long track record of poking enough holes in the state’s case so that they are forced to drop the charges for lack of solid proof.

2.4. False accusations

If you may have been falsely accused of ADW, our law firm compiles all the available evidence to impeach the accuser’s credibility. This typically includes voicemails, text messages, emails, and eyewitness accounts.

Once we show the D.A. that the accuser has motivations to lie (such as anger, jealously, or revenge), the state’s entire case may fall apart. Then they may have to dismiss the charge or at least offer up a favorable plea bargain.

3. What is the sentencing 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 it is a felony charge, 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:

1. involved a firearm, or
2. was committed on a police officer or firefighter.

3.1. ADW with a firearm

If an ADW was committed with an ordinary firearm such as revolver or pistol, 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 firearm,
• a machinegun,
• an assault weapon, or
• a .50 BMG rifle.¹⁹

The penalties for such a felony conviction 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:

1. the alleged victim was a peace officer or firefighter, and
2. you knew or reasonably should have known this.²¹

In these situations, the crime is punishable by up to five years in state prison.

If the crime was committed with a firearm, then the prison sentence could rise to 12 years.²²

4. Does “assault with a deadly weapon” count as a “strike” in California?

It depends on whether:

• The conviction is for a misdemeanor or felony offense;
• You used a deadly weapon or “force likely to produce great bodily injury”; and
• The victim sustained great bodily injury²³

Penal Code § 245(a)(1) PC offense	Strike under California’s 3 Strikes law
Misdemeanor	No
Felony: You did not use a deadly weapon. Instead, you used “force likely to produce great bodily injury”; and The victim did not sustain great bodily injury	No
Felony: You did not use a deadly weapon. Instead, you used “force likely to produce great bodily injury”; and The victim did sustain great bodily injury.	Yes
Felony: You used a deadly weapon. (It does not matter whether the victim sustained great bodily injury.)	Yes

Learn more about California’s Three Strikes Laws.

5. Are there immigration consequences?

A conviction of ADW may have negative immigration consequences.

The law states that if you (a non-citizen) commit an aggravated felony, then:

• you can be deported, or
• you can be marked as inadmissible.

The law states that felony ADW is:

1. a crime of violence, and as such
2. is an aggravated felony.²⁴

This means negative consequences ensue if you are convicted of a felony under PC 245a.

6. Can I get my conviction expunged?

If you are convicted of this crime, you can get a criminal history expungement. This is true provided that you successfully complete:

• probation, or
• a jail term (whichever is relevant).

If you violate a probation term, a judge may still award expungement of your criminal record.

Penal Code 1203.4 PC says an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.²⁵

7. Does a conviction affect gun rights?

A conviction under this statute may have negative effects on your 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 you are charged, and convicted of, felony ADW, then you will lose your gun rights.

8. Are there related offenses?

There are three crimes related to ADW. These are:

1. brandishing a weapon or firearm – PC 417,
2. assault on a public official – PC 217.1, and
3. failing to control a dangerous animal – PC 399.

8.1. 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. You commit this offense by:

1. drawing or exhibiting a deadly weapon or a firearm, or
2. using a deadly weapon in a fight.

Note that unlike ADW, a PC 417 conviction does not require proof of an assault.²⁶

Similar crimes include Simple Assault (PC 240), Simple Battery (PC 242), Battery Causing Serious Injury (PC 243(d)), Throwing Dangerous Object At A Motor Vehicle (CVC 23110(b)), Attempted Murder (PC 664/187(a)), and Assault With Caustic Chemicals (PC 244).

8.2. Assault on a public official – PC 217.1

Per Penal Code 217.1 PC, you commit the crime of assault on a public official when:

1. you commit an assault,
2. you commit this assault against a public official, and
3. you commit the assault either in retaliation for, or to prevent the performance of, the public official’s official duties.

Unlike ADW, you are guilty of this crime even if you did not use a deadly weapon in the commission of the assault.

Similar crimes include Assault On Emergency Personnel (PC 241(c)) and Resisting An Executive Officer (PC 69).

8.3. Failing to control a dangerous animal – PC 399

Penal Code 399 PC is California’s criminal law on failure to control a dangerous animal. You commit this offense when:

1. you willfully let the dangerous animal run free or do not use ordinary care in keeping it, and
2. as a result, another person is killed or suffers serious bodily injury.

You can commit an assault with a deadly weapon with a dangerous animal if:

1. the animal can attack on demand, and
2. you give the demand to attack.

For information on ADW charges in Nevada and Colorado, please see our articles on

• “Nevada ‘Assault with Deadly Weapon’ Laws – NRS 200.471(2)(b),” and
• “Colorado “Assault” Laws.”

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