Penal Code 245(a)(4) PC (Assault by Means Likely to Produce Great Bodily Injury)

Penal Code 245(a)(4) PC is the California statute that makes it a crime for a person to:

  1. commit an assault, and
  2. to do so by using force that is likely to produce “great bodily injury.” 

Under California law, an assault is an unlawful attempt to commit a violent injury on someone. No bodily harm has to occur for an assault to take place.

A “great bodily injury,” or a GBI, is a significant or a substantial injury (e.g., a broken bone, a jaw fracture, and/or gunshot wounds).

Examples of illegal acts under PC 245(a)(4) include:

  • Hector throws a brick at the face of his neighbor, but thankfully the neighbor ducks.
  • Lamar violently swings a baseball bat near the rib-cage of a store clerk.
  • Jessica tries to stab her ex-boyfriend in the thigh with a knife.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of assaulting another by means likely to produce GBI. These include showing that an accused:

  • Did not commit an assault;
  • was not likely to cause great bodily harm; and/or,
  • was falsely accused.

Penalties

A violation of PC 245(a)(4) is what is known as a wobbler offense under California law, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $10,000.

If charged as a felony, the offense is punishable by imprisonment in the state prison for:

  • two years,
  • three years, or
  • four years.

Our California criminal defense attorneys will highlight the following in this article:

assault with a fist deadly weapon
Under California law, an assault is an unlawful attempt to commit a violent injury on someone.

1. What is the legal definition of assault by means likely to cause great bodily injury?

Under California Penal Code 245(a)(4) PC, it is a crime for a person to:

  1. assault someone; and,
  2. to do so by means likely to cause “great bodily injury.”1

An “assault,” under California law, is an act that would probably result in the application of force to someone. The “application of force” is defined as any harmful or offensive touching.2

Please note that an assault still occurs if an act did not cause an injury.3 Further, it doesn't matter if a person succeeded at applying force on another. The only requirement is that there must have been some action (e.g., throwing a bottle) that could have resulted in force being applied to someone.4

California law says that a GBI is a significant or substantial physical injury. The determination as to whether an assault could have produced “great bodily injury” is based upon all of the facts in a case.5

Some examples where courts have found a great bodily injury to have occurred include:

  • a dog bite,6
  • broken bones,7
  • a black swollen eye,8 and
  • gunshot wounds.9

2. What are the legal defenses to accusations under Penal Code 245(a)(4)?

A person accused under PC 245(a)(4) can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses to PC 245(a)(4) accusations are:

  1. no assault;
  2. acts not likely to produce GBI; and/or,
  3. falsely accused.

2.1 No assault

Recall that there must first be an underlying assault for a party to be guilty of violating Penal Code 245(a)(4). Therefore, a valid legal defense is for an accused to use the facts of his case to show that he did not assault another person.

2.2 Acts not likely to produce GBI

Along similar lines, it is a legal defense for a defendant to use the facts of his case to show that, even if he committed an assault, his actions were not likely to produce great bodily injury. For example, he may have thrown a feather at another person (which is technically an assault), but there is no way the impact of a feather could cause GBI.

2.3 Falsely accused

Offenses that involve assault can be quite complex. Many different persons may be involved, and it can be difficult at times to pinpoint the actual wrongdoer. This can lead to false arrests and misidentifications of offenders. If a prosecutor cannot prove beyond a reasonable doubt that the defendant is the person who assaulted another, by means likely to produce great bodily harm, then the crime should be dismissed.

man behind bars
Violation of this law can result in a large fine and/or a hefty prison sentence

3. Penalties, Punishment, and Sentencing

A violation of PC 245(a)(4) is what is known as a wobbler offense under California law. This means it can be charged as either a misdemeanor or a felony depending on:

  • the facts of a case; and,
  • the criminal history of the defendant.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $10,000.

If charged as a felony, the offense is punishable by imprisonment in the state prison for:

  • two years,
  • three years, or
  • four years.

4. Related Offenses

There are three crimes related to assault by means likely to produce GBI. These are:

  1. assault with a deadly weapon – PC 245(a)(1);
  2. assault with a firearm – PC 245(a)(2); and,
  3. battery with serious bodily injury – PC 243(d).

4.1 Assault with a deadly weapon – PC 245(a)(1)

It is a crime in California, per Penal Code 245(a)(1), to assault another person with a deadly weapon.

A prosecutor must prove two things to successfully convict a person under PC 245(a)(1). These are:

  1. the defendant committed an assault; and,
  2. he committed an assault with a deadly weapon.10

Assault” is defined in section 1. above.

California law defines a “deadly weapon” as any object, instrument, or weapon which is used in a manner that makes it capable of producing death or great bodily injury.11

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.

Some examples include:

  • an unloaded gun (if it is used to club or hit someone),
  • a bottle (if it is used to attack someone), and
  • a pencil (if it is used to stab someone)

Penal Code 245(a)(1) is a “wobbler” in California law, meaning it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the maximum jail sentence that can get imposed is one year in county jail.12

The basic felony sentence for PC 245(a)(1) is two, three, or four years in state prison.13

4.2 Assault with a firearm – PC 245(a)(2)

It is a crime in California, per Penal Code 245(a)(2), for a person to use a firearm to commit an assault.

A prosecutor must prove two things to successfully convict a person under PC 245(a)(2). These are:

  1. the defendant committed an assault; and,
  2. he committed an assault with a firearm.14

Assault” is defined in section 1. above.

California law says that a “firearm” is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.15

But “firearm” does not include devices that do not use an explosion or combustion—such as BB guns, air guns or pellet guns.16

The penalties for PC 245(a)(2) depend on the type of weapon that is alleged to have been used.

Assault with a generic firearm is a “wobbler” in California law meaning it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by six months to one year in county jail. Charged as a felony, it carries a California state prison sentence of two, three or four years.17

But assault with a firearm is always a California felony if it is carried out with a machine gun, assault weapon, .50 BMG rifle, or semiautomatic firearm.

In that case, the potential state prison sentence can range from three to twelve years.18

4.3 Battery with serious bodily injury – PC 243(d)

Battery causing serious bodily injury, or aggravated battery, is a crime per California Penal Code 243(d).

Under Penal Code 243(d), an aggravated battery occurs when:

  1. one person willfully touches another in a harmful or offensive manner; and
  2. the person who has been touched suffers a “serious bodily injury” as a result.19

The crime of aggravated battery is what is known as a “wobbler” in California law, meaning it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by:

  • up to one year in county jail, and/or
  • a fine of up to one thousand dollars ($1,000).20

For felony aggravated battery, the potential penalties include:

  • two, three or four years in county jail, and/or
  • a fine of up to $10,000.21

Were you accused of assault by means likely to produce great bodily injury in California? Call us for help…

california criminal defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under California Penal Code 245(a)(4), we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Penal Code 245(a)(4) PC. This code section states: “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.”

  2. CALCRIM 875 – Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury.

  3. See same.

  4. See same.

  5. People v. Cross (2008) 45 Cal. 4th 58.

  6. People v. Frazier (2009) 173 Cal.App.4th 613.

  7. People v. Johnson (1980) 104 Cal.App.3d 598.

  8. People v. Muniz (1989) 213 Cal.App.3d 1508.

  9. People v. Mendias (1993) 17 Cal.App.4th 195.

  10. California Penal Code 245(a)(1) PC.

  11. CALCRIM 875 – Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury.

  12. Penal Code 245(a)(1) PC.

  13. See same.

  14. California Penal Code 245(a)(2) PC.

  15. CALCRIM 875 – Assault with Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury.

  16. In re Jose A. (1992) 5 Cal.App.4th 697.

  17. California Penal Code 245(a)(2) PC.

  18. See same.

  19. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 925 – Battery Causing Serious Bodily Injury.

  20. California Penal Code 243(d) PC.

  21. See same.

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