San Diego Assault with a deadly Weapon Defense Attorney. Former San Diego Prosecutor explains the charge and how to fight it.

Assault with a deadly Weapon

Penal Code Section 245 – The crime of assault with a deadly weapon occurs when a perpetrator wrongfully attempts to injure another person by the use of a deadly weapon. 

Assault With a Deadly Weapon

First, you can be charged under Penal Code section 245 (a)(1) or 245 (a)(2) for committing an assault with a deadly weapon.  Any instrument or object that is capable of causing serious bodily harm can be a deadly weapon for the purposes of this crime.

Examples of Assault with a Deadly Weapon Include

• a pillow used to smother someone
• trying to stab someone with a broken beer bottle
• throwing a Disney snow-globe at someone
• telling an aggressive dog to attack a person

A prosecutor must prove that:

1. you used a deadly weapon to commit an act of assault, and
2. the act was likely to cause personal injury or harm to another person.

Second, you can be charged under California Penal Code 245(a)(4) for committing an assault with force likely to produce great bodily injury.  This means that you can be charged with the crime of assault with a deadly weapon even if you do not use a deadly weapon.  When you commit an assault with such force that the victim is likely to suffer an injury or harm, the assault can be aggravated under 245(a)(4).

The most common assault with force likely to suffer harm is when someone repeatedly kicks someone while they are on the ground.  While hands, feet, and other body parts are not generally treated as deadly weapons, your ability to use them in a forceful (and specialized) manner can cause this to be an exception to the rule.

A prosecutor will be required to prove that you:

1. intentionally committed an act that would probably result in the application of force to another person;
2. the force was likely to cause serious bodily harm,
3. you knew that the act was likely to result in serious bodily harm, and
4. you had the present ability to apply this force.

One requirement for the crime of assault – including assault with a deadly weapon – is that you have a present ability to cause harm.  If you are standing next to someone in a bar, raise your first, and swing it in their direction you will probably be considered to have a present ability to cause harm.  If, however, you are standing 100 yards away from someone and throw a rock or bottle in their direction, you likely will not be considered to have a present ability to cause harm.  You cannot be convicted of assault if you lack the apparent and present ability to cause harm.  You want to contact the Law Offices of Mark Deniz at 858-751-4384 if you have been charged with PC 245 Assault with a Deadly Weapon.

Penalties for Assault with a Deadly Weapon

Assault with a deadly weapon can be a misdemeanor or a felony.  The penalties you face for charges of assault with a deadly weapon will depend on:

1. the type of weapon used in the assault,
2. the severity of the offense,
3. whether the victim was a law enforcement officer or firefighter, and
4. your existing criminal record.

If aggravating factors are present, or if you have a prior criminal record for violent offenses, the prosecution will likely pursue the most serious charges and harshest criminal penalties.

A conviction for assault with a deadly weapon can also result in the loss of gun ownership privileges.  A felony conviction for assault with a deadly weapon will count as a “strike” for the purposes of California’s Three Strikes Law. 

Defenses to Assault With a Deadly Weapon

Your attorney will argue any defense that may be appropriate for your case. Defenses to assault with a deadly weapon include:

1. You did not commit the act;
2. False accusation;
3. Self-defense or defense of another person;
4. Lack of required intent;
5. No present ability to inflict harm;
6. A deadly weapon was not used

Mark Deniz was a prosecutor for almost 10 years.  He has been achieving results since 2003 with a proven approach.  You want an attorney who is proactive and can get the best possible outcome for you or a loved one.  Call the Law Offices of Mark Deniz now to get the ball rolling at 858-751-4384.