Assault with a deadly weapon (ADW) is a sometimes a wobbler in California, although it is usually charged as a felony. And while the name of the offense appears rather simple, the crime itself can take many forms. In addition, this is one of the offenses in California that can easily be “mischarged,” because, depending upon the specific allegations, the facts could fit more than one offense. Since these offenses generally have different consequences and potential penalties, it is essential that an experienced criminal defense attorney examine those allegations and compare them to the specific charge(s) against you.
At RJT Criminal Lawyer, we have the experience and expertise in defending felony cases to ensure that any and all potential defenses to the charge will be explored, and that any weaknesses in the prosecution’s case will be exploited for your benefit. We will work hard to make sure that you obtain the best possible outcome in your case.
Assault with a deadly weapon is defined in PC 245(a). That section also lists the consequences of being convicted of the various forms of ADW. To understand the offense, however, it is necessary to define exactly what is meant – in other words, what are the elements – of the offense. In order to be charged with that crime, there must be a factual basis to support the allegation that you committed an:
- In California, an assault is an unlawful attempt, together with the present ability, to violently injure another person. Carrying out the threat, and, for example, striking another, is defined in our state as battery, a separate offense from assault.
- Deadly Weapon. The crime of assault with a deadly weapon requires that the assault include a firearm or another “deadly weapon or instrument.” While the assault statute itself does not give a specific definition of the term “deadly weapon,” that definition can be found in the California Criminal Jury Instructions, particularly CALCRIM No. 875. It says that a deadly weapon (other than a firearm) can be literally “any object,” instrument or weapon that is either inherently deadly or that is used in a manner that makes that instrument or weapon “capable of” or likely to cause either death or great bodily injury.
The definition of assault with a deadly weapon, therefore, while not complicated, can lend itself to a variety of interpretations depending upon the facts of your particular case.
Saying you have been charged with, or are under investigation for, assault with a deadly weapon (ADW) does not answer the question of the classification of the charge, or the potential penalty if you are convicted. That will depend upon factors such as the nature of the weapon or instrument, and the status of the person who is the alleged victim. The following are some examples:
- ADW other than a firearm is a wobbler, punishable by imprisonment in a county jail for up to a year, or in state prison for 2, 3, or 4 years, or a fine of $10,000, or both.
- ADW with a machinegun (a weapon that shoots more than one shot by a single pull of the trigger) is always a felony and is punishable by imprisonment in state prison for 4, 8, or 12 years.
- ADW with a firearm has basically the same punishment as set forth above, except that (a) it contains a minimum term, if you are sentenced to a county jail, of 6 months, and (b) any fine is in addition to, and not in lieu of, incarceration. In other words, mandatory jail, or prison time.
- Assault on another person with force likely to lead to serious injury is punishable by imprisonment in a county jail for up to a year, or in state prison for 2, 3, or 4 years, or a fine of $10,000, or both.
In addition to these variations, there are different possible sentences for:
- Assault with a semiautomatic weapon, always a felony (3, 6, or 9 years).
- Assault with a deadly weapon or in a manner likely to cause serious injury, upon a peace officer or firefighter while performing their duties, is likewise always a felony,
- Assault with a deadly weapon on a custodial officer, or on a driver or passenger of a bus, taxi, or other motor vehicle, on a ticket agent, or a school employee, while engaged in performing their duties. Always a felony.
Thus, while some assaults with a deadly weapon could be charged as misdemeanors, most are felonies, and even the wobblers are usually charged as felonies.
While it may appear that ADW is a relatively simple offense, the fact is that there are a number of potential defenses that can be raised. First, remember that in order to sustain the charge, the prosecution must prove, beyond a reasonable doubt, that there has been an assault. This raises issues such as:
- Whether you had the ability to carry out the threat of injury.
- Were your actions misunderstood, for example, that you never intended to commit the act in question.
- Whether you were acting in response to a threat to yourself or to another person, i.e., self-defense.
These are just some of the potential defenses that may apply to a charge of assault with a deadly weapon.
As we noted above, ADW is a serious charge, most variations being felonies. And the potential sentence if convicted could be many years in prison. The stakes are obviously high, and this is the time to find an experienced, reliable, and knowledgeable lawyer to protect your rights and your freedom. Contact RJT Criminal Lawyer today and find out what our firm can do for you.