Assault with Deadly Weapon - Penal Code 245(a)(1)
Assault with a deadly weapon is a serious offense under the California Three Strikes law if it is pled and proved as a felony. However, it's essential to note that this charge is a 'wobbler,' a legal term that means it can be charged as either a felony or a misdemeanor, depending on the circumstances. As a top-level criminal defense attorney, I have often successfully convinced prosecutors to reduce charges to misdemeanors. In such cases, the Three Strikes Law does not apply, and you are no longer facing a state prison sentence.
Several defenses and tactics can be employed by your defense attorney, depending on the circumstances of your arrest and the severity of the alleged crime. The term “weapon,” as far as these cases are concerned, is broadly construed and can be just about anything under the right circumstances. Anything that can cause serious injury to the alleged victim will suffice to prove that you used a deadly weapon.
Also, for this offense to be a strike, the prosecutors must plead in their complaint that you used a weapon, and you must admit it as part of a deal, or it must be found faithful by a jury for you to have a strike on your record. Guns, knives, and billy clubs are weapons for an assault with a deadly weapon case. Also, things like feet, hands, elbows, and other things that can inflict severe damage are considered weapons in these cases if the prosecutor can prove it.
In these cases, the successful defenses I have seen involve self-defense, defense of others, and mutual combat. For instance, if you can prove that you acted in self-defense or defense of others, it could significantly impact the outcome of your case. But sometimes, the person is guilty, despite having an explanation. This means they acted unlawfully, but there were good reasons for their conduct that should be considered before they are saddled with a strike and a prison sentence.
In my opinion, only seasoned, savvy defense attorneys should handle these cases because they have the experience and know-how to defend them and make the correct arguments that will make a difference to judges and prosecutors who are tired and sometimes not very easy to deal with or convince that a client should be given a break. Having such experienced legal representation can provide a sense of security and ensure you are well-advised in your legal proceedings.
Law Related to Assault with a Deadly Weapon Cases
In general, if someone threatens another person with what can be classified as a weapon, they are guilty of assault with a deadly weapon. One big area I see come up time and time again is when someone uses their car as a deadly weapon.
Prosecutors love to charge this as assault with a deadly weapon and try and punish the offender. This is where I generally see prosecutors going overboard and trying to extract too much from a case and its set of circumstances. Unless the defendant tried to run the other party over, assault with a deadly weapon should usually not apply to cars, in my opinion. Assault with a deadly weapon (AWD) is a severe crime and can result in long-term imprisonment.
California Penal Code Section 240 defines “simple assault” as an unlawful attempt to inflict violence on another person. California Penal Code Section 245(a)(1) defines assault with a deadly weapon or aggravated assault as committing an assault with a deadly weapon likely to cause significant bodily injury (for example, a blade or knife). California Penal Code 245(a)(2) PC. defines the crime of assault with a firearm.
Surrounding circumstances include the type of weapon/instrument used, whether the person assaulted was injured, and the status of the victim. ADW may result in prison or jail time, depending on the conduct; we will do everything to prevent such harsh penalties.
Can My Second Offense Assault Charge be Reduced to a First-Time Charge?
Assault offenses are typically charged as misdemeanors, but more serious crimes are often associated with these offenses. If you get convicted of assault with a deadly weapon, that will strike your record.
If you are convicted of a second offense, that would be a second strike on your record, and the punishment would be doubled. This means that any convictions could result in a 25-year sentence under the California Three Strikes law, which was enacted in the early 1990s. Therefore, it's crucial to avoid pleading to a second assault with a deadly weapon, as it would significantly impact your future, and the importance of seeking legal representation becomes even more critical.
The Supreme Court has challenged this law and has held it mud to put people in prison. Many things have changed over the years—some for the benefit of the defendant and some to make punishments much harsher. If the prosecutors discover new information about your charge or criminal history, they could take away the plea deal. The potential for plea deals to be withdrawn introduces an additional layer of uncertainty to the legal process. This underscores the importance of being cautious and prepared for potential outcomes in your legal proceedings.
Pulling a plea deal puts the prosecutors at risk of engaging in misconduct. A judge can reject a plea offer even after you've accepted it. For instance, a judge may review the case and decide that you should go to prison rather than get probation. If this happens, you will have the option of accepting the deal the judge is offering or fighting the case and attempting to recover the original offer you received. This underscores the importance of understanding the judge's role in the plea deal process and being prepared for potential outcomes.
California Criminal Jury Instruction 875 For ADW
California Penal Code Section 245(a)1, assault with a deadly weapon, is profound. Despite any conviction in a jail or prison, the judge may impose a sentence, and the defendant will serve 85% of it. Due to the Three Strikes Law, this conviction will remain on their record for the rest of their lives.
To prove this charge, specific jury instructions apply, and you want to know those beforehand. You want to know those before the case starts because it's imperative that if you're going to try to defend a jury trial case, you need to know from a starting point what the prosecutors have to prove from the beginning, so that you can negate any elements that they're trying to prove. Understanding jury instructions is crucial for a successful defense.
Defendant Acted With a Deadly Weapon
So, what a jury will be instructed—and it's under California Criminal Jury Instructions 875, related to assault with a deadly weapon, specifically Penal Code Section 245(a)(1). They're going to say the defendant is charged with a specific count of assault with a deadly weapon, and then the issue will be what type of weapon it is.
So, to prove that the defendant is guilty of this particular crime, the people or prosecutors have to prove (1) that the defendant did an act with a deadly weapon; believe it or not, it can be a gun – that's obvious – it can be a knife – any firearm. It can be a baseball bat. It can also be a car. It could be someone's foot. It could be someone's fist.
It just depends on how the person was using the weapon. If someone is stomping another person's head with a boot, they could be charged with assault with a deadly weapon. The defendant must perform an act, and that act must be such that it would directly and probably result in the application of force to another person.
So, that's pretty clear – pull a gun and point it at somebody, try to run somebody over with a car, throw a knife at somebody – there are several different examples you can come up with to fulfill that act element for purposes of assault with a deadly weapon.
Additionally, typically, the defendant must have done the act willfully. It cannot be something where the person is drunk; it cannot be something where the person doesn't know what they're doing; it cannot be something where the person is not aware of whatever action they're claiming to have done. Of course, that will center on the facts of the case, specifically related to this particular defendant.
Defendant Knew Their Actions Could Cause Great Bodily Injury
The next element that the prosecutors have to prove in an assault with a deadly weapon case is if the defendant acted and they were aware of the facts that would lead a reasonable person to realize that their actions, by their nature, would directly or probably result in the application of force to someone else.
So, you have to know if you're going to point a gun at somebody – that's assault with a deadly weapon. They're going to see that you could shoot them. Suppose you're going to throw something at somebody, try to drive a car at somebody, or stab somebody with a knife. In that case, this type of activity is something you should know could produce significant bodily injury.
This leads us to the next element: the defendant acted and had the present ability to apply force likely to produce significant bodily injury. So, if the defendant's on TV, a show on these things, they don't have the present ability to do anything, but if they're there, they have some weapon, and they're assaulting you with it, which could undoubtedly meet this element because they have the present ability; they're right there.
The defendant Was Not Acting in self-defense.
The final point – I'm not sure if it's an element, but it's certainly important – is that the defendant did not act in self-defense. If someone is acting in self-defense when they use a weapon, that constitutes complete justification for the use of force, and they can't be convicted of a crime. That's what often happens in these cases. People are charged with these serious offenses – assault with a deadly weapon. They're facing a lengthy prison sentence, but they were defending themselves.
As long as they were reasonably defending themselves under the circumstances and were not acting with too much force, they could undoubtedly assert the defense of self-defense against an assault with a deadly weapon charge. If they're successful, they won't be convicted of anything. Of course, all these facts and circumstances depend on the particular case – what happened, what evidence the prosecutors can prove, and what evidence they cannot prove.
When it comes to assault with a deadly weapon under Penal Code Section 245(a), the jury instructions are typically used by most judges, at least in the twenty-five years I've been practicing. Recently, CALCRIM replaced CALJIC. They now use the CALCRIM jury instructions, so if you're interested in what the prosecutors have to prove in your criminal case if you're charged with assault with a deadly weapon, you should go to CALCRIM 875.
That lays it out there. And, of course, you have to talk to an attorney who has been down this road before. I've been doing this for twenty-five years. I've handled numerous cases and achieved considerable success, largely because I understand, going into each case, what the prosecutors must prove.
I know what I'm going to challenge, and if we can negate some of these elements and demonstrate that this was self-defense, then it didn't happen that way; you only have half the story because the police only spoke to half of the people involved. They didn't speak to my client.
They didn't speak to all the witnesses, and now, with the whole story, jury, you will see that my client was not guilty, and my client will be able to walk out of that courtroom. That's what we're shooting for when we do these jury trials, and that's why we have to know from the beginning what the elements of assault with a deadly weapon are and how we can counter them.
Can My Attorney Attend Court Dates on My Behalf?
Code Section 977A permits criminal defense attorneys to represent their clients in misdemeanor cases. However, I usually prefer to have my clients there. When a client is away, I must send the paperwork through the mail and explain the terms and conditions of the plea to them, which can lead to problems.
There are even times when other attorneys will make a mistake, and a warrant will be issued for my client's arrest. Under such circumstances, the client could be facing a potential jail sentence. I will appear for the client at the first appearance, but once I have the case dialed in, I will want them to be present to ensure that everyone is on the same page. For felony cases, the client must appear in court; if they fail to do so, a warrant for their arrest will be issued, and any posted bail will be forfeited, which can create a significant problem.
There are exceptions to that rule, however. For example, if someone lives out of state, the judge might arrange for their release on their recognizance or issue a hold on a bench warrant, so that the bail is not forfeited. As long as the defendant appears at the next court date and fulfills their obligations, the bench warrant won't be released, and the bail situation won't be compromised.
Contact the Hedding Law Firm for Help
We are seasoned and qualified in the area of criminal defense. We have dealt with thousands of assaults and assaults with deadly weapons and have seen great results. Our Van Nuys Lawyers are well-informed on all laws and courtroom procedures related to assault with a deadly weapon cases. We guarantee our dedication and persistence in doing everything possible to achieve the best possible results for you. We carefully analyze the charges and assert any defense applicable to the order.
Common defenses to ADW are self-defense, defense of others, consent, lack of intent, insufficient evidence, constitutional violations by police officers, and inability to carry out the assault, such as threatening to shoot with an unloaded gun. In some cases, we may be able to pursue an intoxication defense for lesser charges. If you face an ADW charge, we aim to help you avoid prison and protect your legal rights. Contact us to schedule a complimentary consultation.
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