As defined under California Penal Code Section 245, an assault with a deadly weapon is an assault involving the use of “a deadly weapon or instrument.” An “assault” is an unlawful attempt to commit a violent act that would cause an injury against another if successful.
A key element of this crime is how the law defines “deadly weapon or instrument.” Under PC 245, deadly weapons include the use of any object other than a firearm in a deadly manner (PC 245(a)(1)); the use of a firearm (PC 245(a)(2)); or the use of any machinegun, assault weapon (such as an assault rifle), or .50 BMG rifle (PC 245(a)(3).
What Is Assault with a Deadly Weapon (ADW)?
Assault with a deadly weapon is a crime where:
- You did something that was likely to result in the use of force against someone else;
- You did so willfully;
- You were aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person; and
- When you acted, you had the ability to apply force to the other person, AND
- You used a deadly weapon other than a firearm; a firearm; a machine gun, assault weapon, or .50 BMG rifle; or you used any means of force likely to produce great bodily injury.
An example of assault with a deadly weapon is firing a pistol in the direction of another person. Even if your intent was merely to scare the victim, you could be convicted of assault with a deadly weapon.
What is an Aggravated Crime?
“Aggravated,” as used in criminal law, is a term that is often misunderstood. It does not mean that the person who committed the crime did so while being enraged or annoyed at the victim. Instead, “aggravated” essentially means that you committed the basic crime, but there are circumstances of the case that require an additional punishment beyond the basic sentence.
In the case of aggravated assault with a deadly weapon, aggravating factors include:
- Causing a serious bodily injury or death;
- The type of weapon used;
- The victim’s status as a member of a “protected class,” such as a police officer, firefighter, emergency medical technician, or public office holder; or
- Whether you have a previous conviction for violent crimes (i.e. a “strike” crime).
Additional Penalties for Aggravated Assault with a Deadly Weapon
Though assault with a deadly weapon can be charged as a misdemeanor, aggravated assault with a deadly weapon is generally a felony. The basic felony sentence for committing a simple assault with a deadly weapon is a maximum of four years in county jail and a fine of up to $10,000. However, if the court determines there are aggravating factors in your case, you could face additional time in custody and have your fine significantly increased. For example:
- Use of a semiautomatic firearm: Semiautomatic weapons, such as rifles or handguns, can result in a sentence of up to nine years in state prison.
- Use of an automatic weapon or .50 BMG rifle: Using a machinegun or assault rifle, or a high-powered sniper rifle can result in a 12-year sentence in state prison.
- “Protected Class” victim: Committing this crime against a person who, at the time of the assault, was engaged in his or her duties as a police officer, firefighter, emergency medical technician, or other public official, can be punished by up to 12 years in prison.
- California’s “Three Strikes” Law: If you have one or more previous convictions that qualify as a “strike,” the court can add more time to your sentence, including 25 years to life for a third strike.
Contact the Criminal Defense Attorneys at Wallin & Klarich Today
Assault with a deadly weapon is a serious charge with severe consequences. It is crucial that you have an experienced attorney defending you if you are accused of this crime. At Wallin & Klarich, our skilled team of attorneys has been successfully defending clients accused of assault with a deadly weapon and other serious crimes for over 35 years. We know how to demonstrate the key facts in your case, and to show the jury that a reasonable person in your position would have done the same. Let us help you now.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will be there when you call.