Assault with Deadly Weapon (PC 245) FAQ

California Penal Code Section 245(a)(1) defines assault with a deadly weapon (ADW) as an assault committed with any deadly weapon or instrument other than a firearm, or by means of force likely to produce great bodily injury. This offense is more serious than simple assault under PC 240 because it involves use of dangerous weapons or application of force capable of causing significant harm.

Prosecutors must prove four essential elements beyond reasonable doubt: the defendant committed an assault upon another person; the defendant committed the assault with a deadly weapon or by means of force likely to produce great bodily injury; the defendant acted willfully; and when acting, the defendant was aware of facts that would lead a reasonable person to realize the act would directly and probably result in application of force.

A deadly weapon is any object, instrument, or weapon inherently deadly or dangerous, or one used in such a way that it is capable of causing and likely to cause death or great bodily injury. Courts apply both an inherent dangerousness test and a use test. Inherently deadly weapons include firearms, knives, metal pipes, baseball bats when used as weapons, vehicles when used to strike people, and any instrument designed to inflict harm. The prosecution must prove the defendant had the present ability to inflict force with the deadly weapon, meaning they were capable of completing the assault at that moment.

California courts have broadly interpreted what constitutes a deadly weapon, recognizing both inherently deadly weapons and ordinary objects used in deadly manner. Inherently deadly weapons are those designed to inflict death or great bodily harm, requiring no special use to be considered deadly. This category includes firearms of all types, knives and daggers, swords and machetes, brass knuckles, explosives, and similar purpose-built weapons. These items are deadly weapons per se, meaning their very nature makes them deadly regardless of how they are used.

Objects not inherently deadly can become deadly weapons based on their use. Courts examine whether the object, as used, was capable of causing and likely to cause death or great bodily injury. Common examples include baseball bats, golf clubs, crowbars, hammers, screwdrivers, broken bottles, heavy rocks, vehicles, and even household items like frying pans or lamps when used to strike with significant force. The key inquiry is whether the manner of use made the object deadly. For instance, a pencil used to write is not a deadly weapon, but a pencil stabbed into someone's eye becomes one.

Hands and feet generally do not qualify as deadly weapons, though force applied with hands or feet may constitute assault by means likely to produce great bodily injury under PC 245(a)(4). California courts consider factors including the object's size, weight, and material composition, the manner and force of its use, the location on the victim's body where it was used, and the injuries inflicted or threatened.

Assault with a deadly weapon under PC 245(a)(1) is a wobbler offense, meaning prosecutors have discretion to charge it as either a misdemeanor or felony depending on the circumstances and defendant's criminal history. As a misdemeanor, ADW carries up to one year in county jail and a maximum fine of one thousand dollars. However, most ADW cases are charged as felonies given the serious nature of the offense.

Felony ADW convictions result in two, three, or four years in California state prison. Courts consider aggravating and mitigating factors when selecting the specific term, including the defendant's prior criminal record, whether the victim suffered injuries, use of particularly dangerous weapons, victim vulnerability, and whether the offense was particularly cruel or callous. Enhanced penalties apply when specific aggravating circumstances exist. ADW with a firearm under PC 245(a)(2) carries two, three, or four years in state prison, identical base terms but with potential for additional enhancements.

Using a firearm in commission of ADW triggers gun use enhancements under PC 12022.5, adding three, four, or ten years consecutive depending on firearm type. ADW against a peace officer, firefighter, or other protected person under PC 245(c) and (d) increases the felony sentence to three, four, or five years. Great bodily injury enhancements under PC 12022.7 add three to six years for inflicting serious injuries. Most significantly, ADW is classified as a serious felony and violent felony under California's Three Strikes Law. A conviction counts as a strike, doubling sentences for subsequent felonies and potentially resulting in 25 years to life for a third strike.

Great bodily injury (GBI) is a legal term defined in California jury instructions as significant or substantial physical injury, greater than minor or moderate harm. CALCRIM 3160 instructs juries that great bodily injury means significant or substantial injury beyond that which is minor, trivial, moderate, or slight. The determination focuses on the injury itself, not the force used to inflict it.

Courts have provided guidance through case law about what constitutes GBI, though each case requires individual assessment based on specific facts. Injuries commonly found to constitute great bodily injury include bone fractures or breaks, extensive bruising over large body areas, wounds requiring numerous stitches or staples, loss of consciousness, concussions or traumatic brain injuries, internal bleeding or organ damage, disfigurement or permanent scarring, loss of bodily function, and injuries requiring extended medical treatment or hospitalization.

Conversely, injuries typically not rising to GBI include minor cuts or abrasions, small bruises, black eyes without other complications, slight swelling, and injuries requiring minimal medical attention. The California Supreme Court has held that pain alone, without significant injury, generally does not constitute great bodily injury. However, severe pain accompanying physical injury can support GBI findings. Courts also consider the injury's duration and whether it resulted in permanent or protracted impairment. A broken bone that heals fully may still constitute GBI, while a cut requiring stitches might not, depending on severity and location.

Assault with a deadly weapon under Penal Code Section 245(a)(1) is classified as both a serious felony under PC 1192.7(c)(31) and a violent felony under PC 667.5(c)(1), making it a strike offense under California's Three Strikes Law codified in PC 667 and 1170.12. This classification carries profound sentencing consequences that extend far beyond the initial conviction.

When ADW is charged as a defendant's first strike offense, the base sentence is two, three, or four years in state prison as discussed previously. However, the strike remains on the defendant's record permanently unless successfully expunged or dismissed under PC 1385, which judges may do in limited circumstances in the interests of justice. If a defendant with a prior ADW strike conviction is subsequently convicted of any new felony, the Three Strikes Law requires doubling the otherwise applicable sentence. For example, a defendant with an ADW strike who commits burglary normally punishable by two, three, or four years would face four, six, or eight years as a second strike offender.

Additionally, second strike defendants must serve 80% of their sentence before parole eligibility, compared to 50% for non-strikers. Most critically, if a defendant with two or more strike convictions (one of which can be ADW) commits any new felony, they face mandatory sentencing of 25 years to life in state prison under the third strike provision. This applies regardless of the severity of the third offense; even relatively minor felonies like petty theft with a prior can trigger 25-to-life sentences for third strikers.

Several legal defenses can defeat or reduce assault with deadly weapon charges depending on case-specific facts and circumstances. Self-defense or defense of others is among the most effective defenses, applicable when defendants reasonably believed they or others faced imminent danger of suffering bodily injury, reasonably believed immediate use of force was necessary to defend against that danger, and used no more force than reasonably necessary. California law permits use of deadly weapons in self-defense when facing threat of death or great bodily injury, but force must be proportional to threat faced.

Evidence supporting self-defense includes the alleged victim's aggressive actions or threats, physical size and strength disparities, defendant's injuries indicating they were attacked, witness testimony corroborating the defendant's account, and history of violence by the alleged victim. Lack of present ability challenges the prosecution's burden to prove the defendant was capable of inflicting harm at the moment of the alleged assault. If the defendant was physically incapable due to distance, barriers, or incapacity, or the weapon was inoperable or harmless, this element is not satisfied.

No deadly weapon or force likely to cause GBI argues that the object used was not inherently deadly and was not used in a manner capable of causing great bodily injury. For example, throwing a soft object or using minimal force with an item not dangerous in that context may not constitute ADW. Lack of willfulness establishes that contact was accidental or unintentional. Since ADW requires willful conduct, proving the act was not purposeful defeats this element.

Yes, assault with deadly weapon charges under PC 245(a)(1) can frequently be reduced to lesser offenses through plea negotiations or based on evidentiary weaknesses. Skilled defense attorneys negotiate with prosecutors to reduce charges when mitigating factors exist, evidence is weak, or conviction at trial is uncertain. Common reduced charges include simple assault under PC 240, a misdemeanor punishable by up to six months in county jail rather than years in state prison and not a strike offense.

Prosecutors may agree to simple assault when the deadly weapon allegation is questionable, injuries were minor or nonexistent, the defendant has no prior criminal history, or strong self-defense evidence exists. Simple battery under PC 242 is another possible reduction, also a misdemeanor carrying up to six months in jail. Battery is appropriate when physical contact occurred but did not involve a deadly weapon or force likely to cause great bodily injury. Assault with force likely to produce great bodily injury under PC 245(a)(4) is sometimes charged when no weapon was involved but significant force was used. While still a felony and strike offense, it may be easier to defend than ADW allegations.

Brandishing a weapon under PC 417 criminalizes drawing or exhibiting a firearm or deadly weapon in a threatening manner. This wobbler offense carries lighter penalties than ADW and is not a strike, making it an attractive reduction when the defendant displayed a weapon without attempting to use it. Factors influencing prosecutors' willingness to reduce charges include strength of the evidence, particularly witness credibility and availability, extent of victim's injuries and desire for harsh punishment, defendant's criminal history and personal circumstances, and courtroom resources and caseload pressures.

California Penal Code Section 245(a)(2) creates a distinct offense for assault with a firearm, separate from assault with a deadly weapon under PC 245(a)(1), though both carry similar base penalties and are strike offenses. Assault with a firearm applies specifically when the assault is committed with a firearm, defined as any device designed to be used as a weapon from which a projectile is discharged through a barrel by the force of explosion or combustion. This includes handguns, rifles, shotguns, and even inoperable or unloaded firearms if used in a threatening manner suggesting they are functional.

The elements prosecutors must prove are identical to ADW except the weapon must be a firearm: the defendant committed an assault, the assault was with a firearm, the defendant acted willfully, and the defendant was aware facts would lead a reasonable person to realize the act would probably result in application of force. The base sentence for felony assault with a firearm is two, three, or four years in state prison, identical to ADW. However, assault with a firearm triggers additional consequences and enhancements not applicable to non-firearm ADW.

Defendants convicted of assault with a firearm face mandatory personal use of a firearm enhancements under PC 12022.5, adding three, four, or ten years consecutive depending on the firearm type and circumstances. If the assault with a firearm was committed against specific protected persons including peace officers, firefighters, or custodial officers, enhanced penalties under PC 245(d)(1) increase the sentence to four, six, or eight years, compared to the standard two, three, or four years.

Assault with a deadly weapon convictions, whether charged as misdemeanors or felonies, result in significant restrictions on firearm ownership and possession rights under California and federal law. Felony ADW convictions trigger a lifetime ban on firearm possession under California Penal Code Section 29800, which prohibits any person convicted of a felony from owning, purchasing, receiving, or having in their possession or custody any firearm. This prohibition is immediate and permanent unless the conviction is expunged, reduced to a misdemeanor, or the defendant obtains a pardon restoring firearm rights.

Federal law under 18 U.S.C. Section 922(g)(1) similarly prohibits anyone convicted of a crime punishable by more than one year in prison from possessing firearms or ammunition, with violations carrying up to ten years in federal prison. Since felony ADW carries potential sentences exceeding one year, federal firearm prohibitions apply automatically. Even misdemeanor ADW convictions can restrict firearm rights under specific California statutes. Penal Code Section 29805 prohibits firearm possession for ten years following conviction of certain misdemeanors including assault or battery causing serious bodily injury.

If the misdemeanor ADW involved a deadly weapon and caused serious injuries, this ten-year prohibition may apply. Additionally, courts routinely impose firearm prohibitions as conditions of probation for ADW convictions, requiring defendants to surrender all firearms, refrain from owning or possessing any firearms or ammunition during probation, and submit to searches to ensure compliance. Violations of firearm prohibitions constitute separate criminal offenses carrying substantial penalties including additional felony convictions.

Assault with a deadly weapon convictions under Penal Code Section 245(a)(1) carry severe immigration consequences for non-citizens, potentially resulting in deportation, inadmissibility, and denial of naturalization. Under federal immigration law, ADW is analyzed as both a crime involving moral turpitude (CIMT) and potentially an aggravated felony, depending on the specific facts and sentence imposed.

Crimes involving moral turpitude render non-citizens deportable under INA Section 237(a)(2)(A)(i) when convicted of a CIMT committed within five years after admission and punishable by at least one year imprisonment. Courts have consistently held that assault with a deadly weapon involves moral turpitude because it demonstrates vile or depraved conduct contrary to accepted moral standards. Additionally, if the ADW conviction qualifies as a crime of violence under 18 U.S.C. Section 16 and results in a sentence of at least one year (even if suspended), it may constitute an aggravated felony under INA Section 101(a)(43)(F).

Aggravated felony convictions are the most serious immigration violations, triggering mandatory deportation with virtually no relief available. Non-citizens convicted of aggravated felonies are barred from cancellation of removal, asylum, voluntary departure, and most other forms of relief, face mandatory detention without bond during removal proceedings, and are permanently barred from returning to the United States. Even when ADW does not qualify as an aggravated felony, CIMT convictions make non-citizens inadmissible under INA Section 212(a)(2)(A)(i)(I), preventing lawful re-entry after traveling abroad and blocking adjustment of status applications. For naturalization purposes, assault convictions demonstrate lack of good moral character required for citizenship, delaying or preventing naturalization for years after conviction.