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Assault With a Deadly Weapon

Assault with a deadly weapon is one of the most serious violent crimes, though it is a “wobbler” offense, meaning you can be charged with a misdemeanor rather than a felony in certain cases or if the factual circumstances do not support more serious charges.

In determining whether you will be charged with a felony, the prosecution will look at:

  • the weapon used in the assault
  • if the victim suffered serious bodily injury
  • if the victim was a police officer, firefighter or other person designated as a protected person.

Elements of Assault With a Deadly Weapon

The California law pertaining to this offense is found at California Penal Code 245(a)(1):

245(a)(1). Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

It is defined as:

  • an assault on someone
  • committed with any type of deadly weapon or by means of force, and
  • likely to cause great bodily injury to another

To be convicted, you need not have injured anyone at all; all that is necessary is that you possessed the ability and the intent to seriously injure someone.

What Constitutes a Deadly Weapon?

Obviously, firearms and knives are dangerous weapons, but ordinary items if used threateningly or which are capable of causing severe injury also qualify. A deadly weapon is an object capable of producing, or likely to produce, either death or great bodily injury, including:

  • A sharp pencil
  • Broken beer bottle
  • Baseball bat or hockey stick
  • Motor vehicle if used to run over someone or to crash into someone’s car
  • A rock
  • A dog

A body part is not considered a deadly weapon unless you do something such as repeatedly strike someone with your fists or feet in such as way that is likely to cause substantial harm to someone.

Great Bodily Injury

A major factor in whether to charge or convict someone of assault with a deadly weapon instead of a lesser assault charge, is whether that person inflicted substantial or great bodily harm. This can include:

  • brain damage
  • broken limb
  • internal injuries
  • broken teeth
  • black eye
  • any cut requiring stitches

This is a subjective standard in which the trier-of-fact must look to the facts of the case to make the determination. Also, the law does not require an actual injury but an act that is capable of resulting in great bodily harm. An example is waving a weapon, which could be a rock or sharp pencil, and threatening someone with physical harm.

Penalties for Assault With a Deadly Weapon


If you are charged with a misdemeanor, you face the following penalties:

  • Fine of up to $10,000
  • Incarceration in jail for up to one year
  • Informal probation for up to 5 years
  • Restitution for medical expenses
  • Community service
  • Participation in anger management classes

If you used a firearm, your jail sentence is a minimum of 6 months.


For a felony conviction, you face:

  • 2 to 4 years in state prison
  • Fine up to $10,000
  • Restitution to the victim for medical expenses
  • A strike on your record


Use of an assault weapon can result in 4, 8 or 12 years in state prison along with the other penalties. If you used some other semiautomatic firearm, the state prison time is 3, 6 or 9 years.

Should you have used an assault weapon on a police officer or firefighter, your prison time is enhanced by 4 to 12 years. For non-firearms, your sentence enhancement is 3 to 5 years.

If this is your second strike, your sentence is automatically doubled. A third strike subjects you to a mandatory minimum sentence of 25 years to life.

Those who are non-citizens face deportation upon completion of their sentence.

Defenses to Assault with a Firearm

There are some common defenses to assault with a firearm:

  • Self-Defense

You may only use a weapon in self-defense to repel similar force against you or another person and if you reasonably believe that you are in imminent danger of serious bodily harm. You cannot use excessive force to protect yourself such as aiming a loaded gun at someone who is only verbally threatening you and does not possess a dangerous weapon.

You also face the possibility of being charged with another criminal offense even if you were acting in self-defense. This could include possession of a dangerous firearm, carrying a concealed weapon or carrying a loaded firearm.

  • No Assault

If you lacked the intent to inflict serious bodily harm on someone such as by accidentally pointing a loaded weapon at someone, or if you were not engaged in an argument or threatening anyone, your conduct may not arise to an assault.

  • Inability to carry out the assault

This defense usually refers to the accused threatening someone with a nonexistent weapon.

Retain a California Criminal Defense Attorney

Assault with a deadly weapon is an extremely serious charge that can lead to substantial prison time. If you are a non-citizen, a conviction can subject you to deportation. Should you be charged with this or any other criminal offense, promptly contact a California criminal defense attorney.