Assault with a Deadly Weapon Defense Attorney | Orange County

What is “Assault With A Deadly Weapon”?

The crime of assault with a deadly weapon is defined in California Penal Code Section 245(a)(1). In order to be convicted of an assault with a deadly weapon charge under PC 245, the prosecutor must prove the following elements:

  • You committed a physical act against someone that would likely result in the application of force
  • Your act was with a deadly weapon or an act that would likely to produce great bodily injury
  • The act was done willfully and purposeful
  • You had the ability to apply force with a deadly weapon that would likely produce serious bodily injury
  • You were not acting in self-defense or the defense of another person.

Different Charges | PC 245

There are several different types of “assault” charges that can result in a felony conviction. They are as follows:

  • PC 245(a)(1) – Assault With a Deadly Weapon
  • PC 245(a)(2) – Assault With a Firearm
  • PC 245(a)(3) – Assault With an Assault Weapon
  • PC 245(a)(4) – Assault with Force Likely To Cause Great Bodily Injury
  • PC 245(b) – Assault with a Semi-Automatic Firearm

Assault With A Deadly Weapon Penalties | What You’re Facing

Assault with a deadly weapon sentencing can be severe. This is why it’s extremely important to have an excellent assault lawyer defense team on your side. A charge of aggravated assault under PC 245 is considered a “wobbler” offense, where the prosecutor can file the charges as either a felony charge or a misdemeanor charge. Which charge the prosecutor chooses depends upon the following:


  • The severity of the alleged physical acts 
  • Type of deadly weapon used
  • What injuries the victim suffered
  • Defendant’s previous criminal record

Assault With A Deadly Weapon | PC 245(a)(1)

  • State prison term of 2, 3, or 4 years (Felony)
  • County Jail term up to 1 year (Misdemeanor) 
  • Fine up to $10,000
  • Both a jail  sentence and a fine
  • Court ordered restitution for the payment of the victim’s medical bills or other damages.

Assault With A Firearm | PC 245(a)(2)

  • State prison term of 2, 3, or 4 years (Felony)
  • County Jail term up to 1 year (Misdemeanor) 
  • Fine up to $10,000
  • Imprisonment + Fine.

Assault With An Assault Weapon | PC 245(a)(3)

  • Imprisonment in a state prison for 4, 8, or 12 years (Felony)

Assault With Force Likely To Cause Great Bodily Injury | PC 245(a)(4)

  • Imprisonment in a state prison for 2, 3, or 4 years (Felony)
  • Imprisonment in a county jail for 1 year (Misdemeanor)
  • Fine up to $10,000
  • Imprisonment + Fine

Assault With A Semi-Automatic Firearm | PC 245(b)

  • Imprisonment in a state prison for 3, 6, or 9 Years (Felony)

How We Can Help Protect You | Possible Defenses

There are many valid defenses that can be used to have the charges dismissed or lowered to less serious charges. However, you will want to retain a law firm that has handled hundreds of similar cases who knows how to bring the best defenses forward to help you win your case.  We know all of the assault charge defense strategies and tactics that help you achieve the best possible outcome in your case. Some defenses that our skilled lawyers at Wallin & Klarich have used to successfully defend our clients include:

Self Defense

Self defense is one of the best strategies to win a not guilty verdict in an assault charge case.  If you can present evidence to the jury demonstrating that your use of a deadly weapon was in self defense then the burden shifts to the prosecutor to show you were not acting in self defense or for the defense of another person. Your Wallin & Klarich aggravated assault defense team will present evidence that you had a reasonable belief you or another person was in imminent danger of suffering bodily injury and the use of a deadly weapon to protect yourself was the only option. 

For example, an intoxicated man gets into an argument outside of a bar and threatens our client with a knife.  Our client then points a gun at the person who threatened him and tells him to drop the knife. In that situation the use of the firearm would be considered self defense if the threat was immediate and the amount of force used matched the threat.

Lack of Intent

For a guilty verdict, a prosecutor has to demonstrate that you had general intent to cause harm with a deadly weapon, and that you acted willfully to commit bodily harm against the victim. To counter this, an aggravated assault defense strategy is to elicit evidence that the physical act was accidental or misinterpreted by the victim. In other words, demonstrate that you didn’t act with the intent to cause bodily harm to the victim.  One example where we have used such a defense in an assault case is where our client was accused of pointing a knife at a family member. We argued that she was holding the knife for a legitimate purpose and she did not intend to point the knife at the victim.

Factual Impossibility/False Identification

Based upon the circumstances, your criminal defense team may  argue that it was factually impossible for you to commit the act. For example, the alleged victim could have been mistaken as to the identity of the assailant because you were nowhere near the location of the incident.

False Allegation

We can gather credible evidence that the alleged victim filing the police report was motivated by anger, jealousy, or revenge against you and that the facts that the person is alleging are not true. For example the alleged victim says our client pointed a gun at him during a financial argument. In this situation, we may be able to argue that the victim was so upset about the argument that he/she made up the gun being pointed as a way to get back at our client.

Non-Lethal Weapon Used

Under PC 245, the weapon used has to be reasonably considered deadly if used in a certain way. The weapon has to be “inherently deadly.” In rare cases, the defense can argue that the item used should not be considered a deadly weapon under the law.

24/7 Communication With Your Attorney | The Wallin & Klarich Way

Our team of Southern California aggravated assault defense lawyers have been protecting the rights of criminal defendants for over 40 years. We have a 24/7 communication policy at Wallin & Klarich in order to walk side-by-side with you throughout the entire legal process. You will always be kept informed as to all developments in your case and we will be available to answer your questions when you contact our office. We find that when our clients are knowledgeable about what they are facing and their “defenses” to the charge they can be an active participant in their defense.

With 40+ years of experience defending persons who have been accused of  assault with a deadly weapon charges we know what it takes to develop a successful defense strategy. We know the ins and outs of the court system in Southern California. Because of our vast experience, we have the skills, knowledge and resources to do what’s necessary to protect your rights and to provide you with the best defense possible.

History of Success | Wallin & Klarich Track Record of Winning Cases

Before you commit to hiring any Southern California criminal defense firm, do research on their level of experience and success they have had in other similar cases. At Wallin & Klarich, our record demonstrates that we take on the tough cases and do not back down to any prosecutor. The moment you walk in our doors, you and your family will be treated with dignity, compassion, and honesty. We can understand the stress that you’re under when you are charged with aggravated assault. With Wallin & Klarich, you’re not going through it alone. 

The Bottom Line

Being charged with a serious crime can be extremely upsetting and can turn your life upside down. If you are charged with the  crime of assault with a deadly weapon it can result in many negative consequences apart from the court process, including jail time, the loss of your job, and in some cases your family.  At Wallin and Klarich we will do all we can to help you and your family avoid these types of adverse consequences. With offices in San Bernardino, Torrence, Riverside, Orange County, and throughout Southern California, one of our experienced lawyers is a phone call away to begin to help you in your defense.

Contact us online or call us today at (877) 4-NO-JAIL for a free phone consultation. During your initial consultation, we will ask about the facts of your case. Be prepared to discuss all of the facts of your case and the information that will help us defend you. When you hire us we will  immediately begin to develop a defense strategy for your specific case.. When it matters most, call Wallin & Klarich; we’ll be here for you when you call.

Frequently Asked Questions

Yes, you certainly CAN be charged with assault with a deadly weapon under PC 245(a), but that doesn't mean it's the end of the line. The prosecution is going to have to prove that you used excessive force in the situation, and given the fact that you are claiming the other individual was much bigger than you, there is a chance that you could claim self-defense and that the use of a beer bottle was "fair" due to the size difference and the fact that the other party was the aggressor. Call us at (877) 4-NO-JAIL and tell us the facts of your case and let's see if we could help you.

Great question! A deadly weapon is any object that is used as a weapon and is capable of causing death or great bodily harm. This can include anything from a baseball bat to a gun, or anything in between.

Yes, you certainly could. Assault with a deadly weapon is a "wobbler" offense, meaning it can be tried as either a misdemeanor or a felony, depending on the facts of your case and your previous criminal history. If you are tried for felony assault with a deadly weapon, then you will lose your right to own a gun. It is common to get felony charges lowered to misdemeanor charges, but you need to get ahead of this. Call us today at (877) 4-NO-JAIL and let's see if this is a possible route for you.

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