February 8, 2017

Under California Penal Code Section 245, an assault with a deadly weapon is an assault committed 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, if you had the ability to commit the act at the time.

Self-defense is one of the most common defenses to assault with a deadly weapon charges. However, to use this defense, your lawyer must show that you were acting in self-defense. Proving this is not as easy as you may think.

What is Assault with a Deadly Weapon? (PC 245)

In order to be convicted of assault with a deadly weapon under PC 245, the prosecution must prove all of the following elements are true in your case:

  • 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 machinegun, assault weapon, or .50 BMG rifle; or you used any means of force likely to produce great bodily injury.

When you think of deadly weapons, guns and bladed instruments are the obvious examples, but a “deadly weapon” also includes anything that is normally not used as a weapon if you use it in a deadly manner. So, for example, if you were to grab a lamp off a desk, and attempt to hit someone over the head with it, it could be considered assault with a deadly weapon for the purposes of PC 245(a)(1).

This crime is a wobbler offense, meaning you could be charged with either a misdemeanor or felony depending on the circumstances of your case. A misdemeanor conviction could result in a maximum of 364 days in county jail and a fine of up to $1,000, while a felony conviction could result in two to four years in jail and a maximum fine of $10,000.

Self-Defense involving a Deadly Weapon

Suppose the incident in question starts while you are studying at your desk late at night. A burglar sneaks into your home. He reaches into his jacket, pulls out a knife and moves quickly toward you.

If you grabbed the desk lamp because it was the nearest thing you could use to fend off an imminent attack, your lawyer could use self-defense as a valid legal defense to assault with a deadly weapon charges. In order to do so, your attorney must show:

  • It was reasonable for you to believe that you were in imminent danger of suffering bodily injury or an unlawful touching;
  • It was reasonable for you to have believed that the immediate use of force was necessary to defend against that danger; AND
  • You used no more force than was reasonably necessary to defend against that danger.1

It is important to know that the reasonable belief is not your reasonable belief, but rather what a reasonable person in your position would have believed. This means the jury is asked to determine whether it was reasonable for any person in your position to act the way you did. Self-defense can include the use of a weapon if it was reasonably necessary to defend against the impending danger, such as our example above.

It must also be reasonable for you to have believed the threat was imminent. Here, the burglar was approaching you with a knife drawn. Under those facts, it is reasonable to conclude that he would use the knife against you in the next few moments. So, in the example above, self-defense should be a winning defense.

Importantly, California’s self-defense law is a “stand your ground” law, which means you do not have to prove that escape was an option available to you at the time you acted in self-defense.

Using self-defense as a defense to assault with a deadly weapon charges is difficult. You should retain an experienced criminal defense attorney to help you defend against these charges. He or she will know how to provide evidence and demonstrate how your actions were only a means to repelling an imminent injury at the hands of another.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

Assault with a deadly weapon is a serious charge with severe consequences. That is why it is crucial that you have an experienced attorney at your side who can convince the jury that you only acted reasonably out of necessity to keep yourself or another free from harm. At Wallin & Klarich, our skilled attorneys has been successfully defending clients facing assault with a deadly weapon charges for over 35 years. 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.

1. See CALCRIM 3470 – Right to Self-Defense or Defense of Another (Non-Homicide). href=”#ref1″>↩

Author

Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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