Assault With a Deadly Weapon FAQs – California Penal Code Section 245

1.    What if no one was actually hurt or injured? Can I still be charged with assault with a deadly weapon?

Yes. No one needs to actually have been hurt or injured by your assault in order for you to be charged and convicted. It is not even necessary to show that you even touched anyone.

2.    What if the gun I had was broken?

You may still be liable for aggravated assault. Whether or not the gun was actually in working order does not matter. An assault can still be committed even with a broken gun because it can still be used as a club or bludgeon. See People v. Miceli (2002) 104
Cal.App.4th 256.

3.    Can a Penal Code Section 245 charge be reduced to a lesser crime?

Yes. With the assistance of a criminal defense attorney, the aggravated assault charge may be dismissed or reduced to simple assault, which brings with it less severe punishments.

4.    What is a “great bodily injury”?

“Great bodily injury” is defined as a significant or substantial injury, but it does not need to be permanent. Exactly what constitutes a great bodily injury is a question of fact that is determined on a case-by-case basis, but courts have found that broken bones, dog bites, gashes requiring stitches, broken teeth, and black eyes qualify as a “great bodily injury.”

5.    What is meant by a “means of force likely to produce great bodily injury”?

Anything other than a deadly weapon may qualify as a means of force. A person’s body (particularly their hands and feet) is not considered a deadly weapon; however, it is still capable of inflicting great bodily injury for the purposes of this crime. If you punch, choke, bite, or kick a person in a manner that is likely to inflict great bodily injury, then you can be charged with assault with a deadly weapon.

6.    What if I was drunk at the time of the assault? Is that a defense?

Voluntary intoxication is not a valid defense to Penal Code Section 245.