Assault With A Deadly Weapon

A simple argument could quickly escalate into an assault with a deadly weapon – a serious offense with severe penalties. When you are charged with assault with a deadly weapon, you not only face the risk of incarceration, you are also likely to lose your gun rights and suffer additional immigration consequences.

We at Darwish Law work to reduce the impact of a conviction by providing solid defense services against charges of assault with a deadly weapon. We dedicate our efforts to fighting for the best outcome by negotiating with the prosecution and preparing defense strategies.

Assault With A Deadly Weapon in California

Assault with a deadly weapon is an aggravated form of assault that involves an attempt to use deadly force or a deadly weapon to assault another person.

The distinguishing factor of assault is that the court does not require that you actually use force – any action that could lead a reasonable person to believe that you could use force qualifies as assault.

For example, if you throw potentially harmful objects such as glass bottles or knives at a person, you can face assault charges.

Assault with a deadly weapon, PC 245(a) (1), involves:

  • An action that could lead to the use of direct force on another person
  • The defendant performs the act using a deadly weapon
  • Willfully
  • A reasonable person would believe that the action would result in the direct and probable use of force on another person
  • The defendant was capable of applying force at the time of the offense

You are also guilty of assault with a deadly weapon if you apply a force that is likely to produce great bodily injury to the victim.

Under California law, a deadly weapon is one that can be used to kill someone or cause substantial harm. They include guns, knives, and a pencil when used to stab a person. Body parts can also be deadly weapons depending on how they are used.

Applying force in an assault case refers to touching that is harmful, offensive, or is done rudely. The touching can be direct or indirect.

Great bodily injury is that which exceeds minor injury, including broken bones, dog bites, lacerations, and gunshot wounds.

Penalties of Assault With A Deadly Weapon

Assault with a deadly weapon is a wobbler offense in California. The penalties of a conviction depend on the seriousness of the offense, the circumstances, and your criminal history. The penalties for a misdemeanor include:

  • Summary probation
  • A year in county jail
  • A fine of up to $1000

The penalties of a felony include:

  • Formal probation
  • Incarceration for up to four years in state prison
  • A fine of up to $10,000

If you committed the offense using a firearm, the court would penalize you as follows:

For an offense committed using an ordinary firearm, you will be guilty of a misdemeanor with a term of at least six months in county jail up to a year and a fine of $1000.

You would face up to 12 years in state prison if you committed the offense using a machine gun, a semiautomatic gun, an assault weapon or a .50 BMG rifle.

Assaulting an officer with a deadly weapon is a felony in California. However, the following factors must be true to be convicted of assault with a deadly weapon on a peace officer:

  • The victim was a police officer
  • You knew or should have reasonably known that the person was a police officer

The penalties for the offense include up to five years in state prison. The term would increase to 12 years if you committed the offense using a firearm.

You also face additional immigration consequences if you are a non-citizen. Some of the potential consequences of a conviction for assault with a deadly weapon include:

  • Deportation
  • Inadmissibility into the county

You will also lose your gun rights if you are convicted of a felony. Losing your gun rights means you can neither own nor possess a gun.

Legal Defenses

Fortunately, the court cannot convict you without granting you a fair trial. The trial allows you to present your side of the story and supporting evidence to fight the charges. The prosecution usually has its evidence that attempts to prove that you committed the crime. However, you can (and should) present your evidence to prove that you did not commit the offense, or that some aspects of the accusation are wrong. Here are the common defenses to fight charges of assault with a deadly weapon:

1. False Accusations

False accusations will tarnish your reputation, create a criminal record, and subject you to penalties you should not face. Such accusations arise due to anger, jealousy, revenge, and covering up of another person's offenses.

False accusations arise easily in assault cases, as the offense does not require that the offender apply force (or touch the victim). However, you can fight these charges by presenting evidence such as:

  • Witnesses statements and inconsistencies
  • Unreliable witnesses
  • An alibi that proves the defendant was in a different place than the victim at the time of the offense
  • Police misconduct when identifying the offender (in cases of mistaken identity)

Courts always dismiss cases based on false accusations if you can provide convincing evidence that shows beyond a reasonable doubt, that you could not have committed the offense.

2. Self-Defense

Self-defense is an acceptable defense in assault cases. The law allows you to defend yourself from harm, even if it means using deadly force. However, you must meet the following conditions:

  • You reasonably believed that you or another person were in imminent danger
  • You believed that you must have used to stop the threat
  • You used a reasonable level of force

Self-defense is considered a form of protective force which when used as a defense, affirms that an assault took place, but based on the intent to protect yourself or another person. Self-defense implies that the other person started the violence and could have hurt you had you not stopped him or her.

Sometimes, you may use deadly force due to misinterpretation of the threat you are facing. The defense of imperfect self-defense is useful in such a case. This defense means that your belief in the threat and the force required was not reasonable. In that case, you made an honest mistake in interpreting the seriousness of the threat.

3. You Action Was Not Willful

One of the elements of the offense is that you act willfully. However, you could be accused of the offense when you committed the act:

  • Accidentally
  • Under duress or coercion

In some cases, the victim could have misinterpreted your actions for assault.

4. No Assault

For you to be charged with assault with a deadly weapon, the prosecution has to prove that an assault took place. An assault occurs when you willfully commit an action that would result in the use of force against another person. However, if you did not assault the victim, you cannot be guilty of the offense.

One instance when you can use this defense is if you and the victim only engaged in an argument. Words alone do not constitute assault and cannot be used to sustain a charge for assault with a deadly weapon.

5. You Could Not Have Applies Force

Assault requires that you have the present ability to use force against the victim. The prosecution must prove that you had the physical and mental ability to apply force. For instance, if a mentally challenged person threatens to shoot you with the toy gun he or she is holding, the person cannot apply force. Therefore, he or she cannot use force against you.

The prosecution identifies the circumstances of the offense and the build of the offender and victim to prove this element. For instance, a skinny teenager waving his fist against a trained boxer is less likely to cause physical harm to the victim. However, if the same teenager uses a loaded gun, then he can use deadly force or cause injury to the victim.

6. You Did Not Use a Deadly Weapon

Using a deadly weapon or deadly force is one of the requirements that make it an offense to assault with a deadly weapon. However, if you did not use any of the two, then you cannot be guilty of the offense.

If the evidence supports it, the prosecution will reduce your charges to simple assault, which is a less serious offense with less harsh penalties.

Possible Outcomes of Your Defense

Your attorney cannot guarantee the outcome of the case. However, he or she can work towards a certain goal depending on the circumstances of your case, the evidence the prosecution has, and the mitigating evidence available.

The attorney uses these defenses during the pretrial and trial stages of the criminal proceedings. Most times, the case ends during the pretrial phase, where the prosecution and defense settle, or the prosecution dismisses the case. The common outcomes in defense of an assault with a deadly weapon charge include:

  • You could plead guilty: you can plead guilty at any stage of the criminal proceedings. Pleading guilty finalizes the criminal proceedings, and the court imposes the relevant sentencing. Pleading guilty at an arraignment denies you the chance to examine the evidence against you and defend yourself.
  • The prosecution dismisses your case: this is the best outcome and possible in cases where no assault occurred, you were falsely accused, or you acted in self-defense. You can also achieve this result if the prosecution has insufficient evidence. After the dismissal, you are free from any criminal obligations. However, you still have a criminal record that your attorney can help you expunge.
  • The prosecution agrees to lesser charges: often, the prosecution seeks to bring the highest penalties for the offenses you commit. Also, it may bring additional charges, which increase your penalties. However, with the right evidence, your attorney can convince the prosecution to drop some of these charges or charge you for a lesser offense.
  • A plea agreement: a plea agreement could include an agreement on the charges to file and the sentence. The judge will review the deal and accept or reject it. When accepted, you are sentenced as per the plea agreement. Alternatively, the prosecution could recommend sentencing, which allows the judge to choose the sentencing to give you. The prosecution will make a deal, which you can accept and continue negotiating or go to trial.
  • A “not guilty” verdict, which is common if you go to trial and the judge rules that the evidence is insufficient to prove your guilt beyond a reasonable doubt. When the court determines that you are not guilty, it will acquit you from the charges.
  • Conviction: a conviction is one of the results of a criminal case. It means that the court finds you guilty and imposes a sentence. Upon your Conviction, your attorney could negotiate lesser sentencing or alternative sentencing, such as probation. Usually, most offenses have recommended periods of incarceration, such as up to four years in state prison. Your attorney can negotiate for the reduction of the sentence to say one year during a sentencing hearing.

Your attorney cannot promise the outcome of the case at the beginning of the criminal proceedings. However, he or she can use defenses and strategies to fight these charges. Therefore, consider hiring an attorney if you are facing charges of assault with a deadly weapon.

Find a Defense Attorney Near Me

Assault with a deadly weapon can have severe consequences when convicted for the offense. Even without a conviction, or lesser charges, you still have a criminal record that could affect your employment prospects.

At Darwish Law, we dedicate our efforts to providing you with the best possible defense services. We employ winning defenses based on the specific circumstances of the offense. We treat each case differently and find the best approach to defend you. If you or a loved one is facing charges for assault with a deadly weapon, we can help you. Contact us at 714-887-4810 for a consultation. We are available 24/7.