Assault with a Deadly Weapon in California

In California, assault is a serious crime. However, California has several versions of assault. One of the most serious is assault with a deadly weapon. When lethal weapons are involved, the consequences for assault increase dramatically.

This article outlines the requirements for proving assault with a deadly weapon as well as the typical punishments for a conviction. It also discusses some common defenses to the crime. Finally, it explains how a Marin County criminal defense attorney can help.

What Is Assault with a Deadly Weapon under California Law?

To answer this question, let’s start with simple assault. Under California Penal Code § 240, assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault differs from battery and similar crimes because it does not require physical contact. In simple terms, it only requires proof beyond a reasonable doubt that the accused person intentionally did something that could have reasonably been interpreted as a threat to cause bodily harm to another. The threat and the ability to carry it out are the focus rather than any actual injury.

Section 245 of the California Penal Code outlines the requirements for assault with a deadly weapon. To get a conviction, the prosecutor must prove that the defendant: 

• Intentionally, 
• Took an action with a deadly weapon (not a firearm) that was likely to result in the application of force to another person, 
• Knew that a reasonable person would believe that their actions could result in the application of force to another person, and 
• Had the present ability to apply force to another person. 

“Present ability” means that, at the moment in question, the defendant had the means to carry out the threat. For example, A says to B, “I’ll kill you.” If A and B are standing together and A pulls out a knife, A has the present ability to cause harm. However, if A waited to pull the knife until after B had crossed the street and walked a full block away, the ability to carry out the threat likely wouldn’t be there. 

What is a Deadly Weapon under California Law?

According to California jury instructions, “A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that 

it is capable of causing and likely to cause death or great bodily injury.” In plain English, this means that a deadly weapon is one that is designed to cause bodily injury and therefore always dangerous to humans or is used in a way that could cause bodily injury.

Few items other than firearms are always deadly weapons, but many items can be used in a way that is dangerous to human life. For example, a butcher knife is not designed to stab but can be used for that purpose. Similarly, a beer bottle is not inherently dangerous, but it can be used to attack someone. If an item is not inherently dangerous, the jury must look at all the circumstances before deciding that a weapon is deadly. Common items that are alleged to be deadly weapons based on the circumstances include: 

• Vehicles 
• Rocks 
• Tools (e.g., axes, hammers, screwdrivers) 
• Household items (e.g., cast iron cookware, tea kettles, coffee pots)
• Sporting goods (e.g., baseball/softball bats, golf clubs, barbells)  

On the other side, California courts have said that an item that cannot remotely cause great bodily harm cannot be a deadly weapon. Also, in the 1997 case People v. Aguilar, the California Supreme Court held that human hands or feet are not deadly weapons.

Possible Punishments for Assault with a Deadly Weapon in California 

The punishments for assault with a deadly weapon are quite serious, especially when compared to simple assault. This makes sense because introducing deadly force changes the crime from one possibly involving an unwanted touch to one possibly involving serious injury or even death. 

The punishment for assault with a deadly weapon depends on how it is charged. Like many crimes in California, assault with a deadly weapon is a “wobbler.” A “wobbler” is a crime that can be charged as a felony or misdemeanor depending on the circumstances. Factors prosecutors consider when deciding between a felony or misdemeanor charge include: 

• The severity of the conduct 
• The type of weapon
• Whether there was an injury, especially a great bodily injury of any sort 
• Any particular vulnerabilities of the victim (e.g., children, seniors, domestic partners) 

A conviction for misdemeanor assault with a deadly weapon carries one year in county jail and a fine of up to $10,000. When the crime is charged as a felony, the defendant can be sentenced to two, three, or four years’ incarceration in addition to the $10,000 fine. However, the punishment can quickly increase. Cases involving great bodily injury can receive a three-year enhancement. Additionally, the felony version of assault counts as a “strike” under California’s Three Strikes Law. Finally, a conviction for assault with a deadly weapon can create legal consequences beyond the criminal court, including in immigration proceedings, family court decisions, and professional licensing challenges. 

Defenses to Assault with a Deadly Weapon Charges 

Assault with a deadly weapon is a serious crime, but there are ways to fight back against the state’s case. Self-defense is an option, as are mental health defenses. It’s also common for attorneys to argue that there is insufficient evidence to prove that: 

• The act was intentional 
• The weapon was deadly 
• There was a present ability to cause harm 
• The defendant was the person who did the act (e.g., alibi) 

Your Marin County criminal defense attorney can help you decide which defenses work best on the facts of your case. 

How a Marin County Defense Attorney Can Help You Fight Assault with a Deadly Weapon Charges

Assault with a deadly weapon is a serious charge that carries serious consequences. But fortunately, you don’t have to face it alone. A Marin County criminal defense lawyer can help you at all stages of your criminal case, including: 

• Arguing for reduced charges 
• Representing you at bail and similar hearings 
• Excluding improper evidence 
• Negotiating a fair plea agreement 
• Presenting a strong defense at trial 
• Helping you reduce non-criminal consequences, such as immigration or family law risks

If you’ve been charged with assault with a deadly weapon or any other crime and need legal representation in San Francisco or Marin County, contact Brownstein Law Group. We fight for our clients, and we’ll fight for you. Call us today at 415-795-9059 or use our online contact form to schedule an in-office visit.