4 Defenses to Assault with Deadly Weapon Charges (California Penal Code Section 245)
Have you been accused of assault with a deadly weapon? If so, you need to be aware that you face serious consequences if you are convicted.
Depending on whether the crime is charged as a misdemeanor or a felony, you could face up to one year in jail or up to four years in prison and a $10, 000 fine. A felony conviction is also considered a “strike” under California’s Three Strikes law. If automatic weapons, peace officers, or other “protected persons” were involved, a felony conviction will significantly increase your punishment.1
If you are granted probation, you may be required to take anger management classes, make restitution to your victim and have your weapons confiscated.2
You can also lose your right to own a gun and be deported if you are not a U.S. citizen.
In this article, our attorneys at Wallin & Klarich break down what elements a prosecutor must prove in order to find you guilty of violating Penal Code section 245, California’s assault with a deadly weapon (ADW) law. We also explain some of the defenses we have raised in the past to successfully challenge this charge.
Prosecution for Assault with a Deadly Weapon
To find you guilty of assault with a deadly weapon under California Penal Code section 245, a prosecutor must prove the following elements beyond a reasonable doubt:
- You committed an assault on someone;
- You did so either willfully or with intent to cause that person harm;
- You did so while in possession of either:
- A deadly weapon; or
- A firearm; or
- With force likely to produce serious bodily injury or death;
It is important that you remember that an assault is not the same thing as a battery, though the terms are often interchanged.
California law defines an “assault” as an unlawful attempt, along with the present ability, to commit a violent injury upon another person.3 This means you can be convicted of assault with a deadly weapon even if no one was actually injured by your actions.
On the other hand, you commit “battery” whenever you intentionally and unlawfully use force or violence upon someone. In other words, battery is the act of completing an assault.4
A deadly weapon isn’t necessarily limited to something as obvious as a gun or knife. It can mean a baseball bat, a beer bottle, a screwdriver, a pencil or a car. Virtually any object can be considered a deadly weapon, depending on how you use it.
Four Defenses to Assault with a Deadly Weapon
The following are four legal defenses to a charge of ADW that your experienced California criminal defense attorney may raise on your behalf.
1. You did not actually use a deadly weapon or force likely to cause great bodily injury
You cannot be convicted of ADW if you did not possess some kind of object capable of being used as a weapon. Alternatively, if you did not use force likely to produce an injury, your attorney can argue that you are not guilty of violating PC 245.5
2. You acted in self-defense or in defense of someone else
You can claim you were acting in self-defense if you can show that:
- You reasonably believed that you or someone else was in immediate danger of suffering serious injury or death;
- You reasonably believed that use of force was necessary to repel your attacker; and
- You used no more force than was reasonably necessary to defend against that danger.6
3. You did not act willfully or with the required intent
Though it is not necessary to cause injury to be convicted of ADW, if you never actually caused a physical injury, it may be harder to prove the element of intent.7
Additionally, there could be a number of valid reasons why your actions were not willful or committed intentionally. For example, you might have been coerced by an assailant under threat of immediate or future harm to yourself or a family member if you did not act the way you did.
Furthermore, whatever you did to trigger your arrest on ADW charges may have been accidental, or may have been misinterpreted by the alleged victim.
If your attorney can establish that you did not act willfully to harm the other person, you have a defense to an ADW charge.
4. False accusation
People get accused of crimes they did not commit every day. Sometimes, a witness makes a mistake when asked by the police to identify a suspect.
Perhaps someone is angry with you and wants to cause you grief. People have all kinds of selfish motivations for making wrongful accusations. For example, a vengeful ex-spouse, a jealous lover or business associate may seek retribution for a perceived wrong.
Contact Wallin & Klarich Today if You’re Facing Assault with a Deadly Weapon Charges
If you or someone you love has been arrested for a charge of assault with a deadly weapon, you should speak with one of our experienced criminal defense attorneys at Wallin & Klarich today. At Wallin & Klarich, our attorneys have over 40 years of experience successfully defending our clients facing assault and weapons-related charges.
We may be able to get the charges against you reduced or dismissed, relieving you of some or all of the many consequences of a conviction.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to make certain you receive the very best legal representation. Our priority is to get you the best possible result in your case.
Call us today at (877) 4-NO-JAIL (877-466-5245) for a free telephone consultation. We will get through this together.
1. [Pen. Code §§ 245 through 245.6]↩
2. [Id.]↩
3. [Pen. Code § 240]↩
4. [Pen. Code § 243]↩
5. [Findlaw.com: “Aggravated assault”; http://criminal.findlaw.com/criminal-charges/aggravated-assault.html]↩
6. [The Free Dictionary: “Self-defense”; http://legal-dictionary.thefreedictionary.com/Self-Defense]↩
7. [The Law Dictionary: “What is Criminal Intent”; http://thelawdictionary.org/criminal-intent/]↩
