Assault with a Deadly Weapon

You may be charged with the offense of assault under California Penal Code section 240 or assault with a deadly weapon under California Penal Code section 245 if you commit assault using a deadly weapon. You can also be charged with this crime for an assault committed without a weapon if you used force that was likely to cause “great bodily injury” to someone else.

“Great bodily injury” means “significant or substantial injury.” It is as an injury that causes more than minor or moderate harm. However, this definition is subjective, and a jury may decide that force was likely to cause great bodily injury even if it did not seem that serious to you.

The Legal Definition of Assault

You can be charged with the assault under California Penal Code Section 240 if it can be proven that you committed “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

As a criminal defense attorney will tell you, this means you don’t actually need to hit or make any contact with another person at all to commit the offense. It’s enough if you are threatening someone with your fists, a weapon or any item that can be used as a weapon. Whether or not it is assault depends on the “present ability” to commit a violent injury. It depends on how close you were to the other person and the nature of the alleged weapon.

Remember that no actual weapon is required for you to be convicted of violating California Penal Code section 245. Even if no weapon was used, the prosecution just has to prove that the force that was used was strong enough to cause “great bodily injury.”

Punishment for Assault with a Deadly Weapon

Assault with a deadly weapon can lead to jail time. This could be time in the county jail or the state prison. A felony state prison sentence can lead to 2, 3 or 4 years in custody. A misdemeanor conviction can lead up to one year in the county jail.

An assault involving a gun can also be charged as either a misdemeanor or a felony as long as the gun was not a semiautomatic, machine gun, or assault rifle. As a misdemeanor, the minimum jail time is 6 months, and the maximum is 1 year, plus you can also be fined up to $10,000. As a felony, you can be sentenced to 2, 3, or 4 years in prison, depending on the type of weapon used:

  • A semiautomatic firearm – If a semiautomatic weapon is used, the sentencing range increases to 3, 6, or 9 years.
  • A machine gun or assault rifle – Results in a sentencing range of 4, 8, or 12 years.

If you personally used a firearm in the commission of an assault with a deadly weapon, then there is an added sentencing enhancement of up to 10 years in state prison in addition to the base sentence for the actual crime of assault. This may seem strange as using a gun is an element of “assault with a firearm,” but under California Penal Code section 12022.5(a), that’s the law.

If the victim is a police office or a firefighter, you could face a longer sentence. However, this only applies if the person was lawfully doing their job at the time of the assault.

Defenses to Assault with a Deadly Weapon Charge

There are several common defenses to assault charges favored by criminal defense lawyers. Two of the most common are:

  • Self defense – If you were defending yourself, this is a defense and the prosecutor would have to prove that you were not defending yourself or that you used more force than was necessary to defend yourself. Your attorney can help you determine if this defense applies to your situation.
  • Present ability to inflict injury – The prosecution must prove that you had the present ability to inflict injury at the time of the offense. If a gun was not loaded, this could be a defense because you did not have the present ability to shoot someone at the time of the offense.

How a Criminal Defense Attorney Can Help

You can be convicted of this offense even if no one is injured. You can also end up with a “strike” under California’s Three Strikes law. This is why it is important to contact a qualified criminal defense attorney who understands how to defend against an assault with a deadly weapon charge.

For a free and confidential consultation, call Los Angeles criminal defense attorney Jerod Gunsberg at (323) 633-3423 or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.

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