If you’re charged with a violent felony like assault with a deadly weapon under Penal Code Section 245, you may be incarcerated for a substantial term in a California county jail or state prison or suffer other severe penalties. Many times, overzealous prosecutors overcharge this offense as a felony when a complaining witness suffers nothing more than a minor red mark, since assault with a deadly weapon does not actually require serious injury, but only a physical assault or use of an object that may cause significant injury.

I have a proven record on both sides of the fence as both a hard-nosed prosecutor with a high conviction rate and a criminal defense attorney with impressive results for my clients. Assault with a deadly is extremely broad and open to a range of interpretations regarding the type of weapon used and type of harm threatened. I’ve successfully defended a wide range of clients against these charges, often exposing the prosecutor’s blatant overcharging of this offense.

Below is what you need to know about the laws governing this crime, the potential consequences of conviction and the defense strategies that may be available to you. If you have questions after reading this, get in touch for a free consultation to learn about your legal options.

What the Law Says

Assault with a deadly weapon is also known as “aggravated assault” under California Penal Code Section 245. In order to find someone guilty of this offense, the prosecutor must establish by proof beyond a reasonable doubt that you committed assault with a deadly weapon or other use of force that is likely to cause great bodily harm.

The term “deadly weapon” includes much more than firearms, knives and other items that most people consider to be weapons. An ordinary household item may constitute a deadly weapon depending on the way the item is used, which makes the statute extremely susceptible to lies or exaggerations by complaining witnesses or to inflated charges by an overly aggressive prosecutor.

Everyday household items that may result in charges of assault with a deadly weapon can include:

  • Attempting to bash someone in the head with a frying pan
  • Throwing a hard, heavy object (like a baseball) at someone
  • Trying to cut someone with a broken bottle
  • Trying to ram someone with your car
  • Using a ballpoint pen to try to stab someone in the eye

The point here is that the item used needn’t be commonly thought of as a deadly weapon—it’s the way it’s used. This means that a complaining witness who distorts the facts about how an altercation occurred can make it appear that a dispute in which you’re holding an ordinary object not typically considered a weapon results in charges being filed for assault with a deadly weapon.

Additionally, although body parts such as hands and feet are generally not considered a deadly weapon, it depends on the way one uses a body part. For example, a simple slap or punch would not likely result in a charge of assault with a deadly weapon, but repeatedly kicking and pummeling someone in the head and torso as they lay on the ground could result in such a criminal charge in San Diego.

The issue of whether or not the alleged offense involves great bodily harm is also important. The assault does not need to result in any injury whatsoever: The offense is committed by use of a weapon or means of force that may result in great bodily harm.

Where injury does occur, the severity of the injuries may be relevant to whether or not the charge of assault with a deadly weapon is appropriate, as well as to the resulting county jail or state prison sentence upon conviction. While severe, permanent injuries like traumatic brain injuries or spinal cord injuries certainly qualify as great bodily harm, the injuries need not be permanent. While a simple red mark may be inadequate to support such a charge, broken bones, stitches or a black eye may be sufficient.

Consequences of Conviction

Assault with a deadly weapon is a “wobbler” under California criminal law, meaning that it may be charged as either a misdemeanor or felony. The prosecutor typically considers a number of factors when determining how to charge the offense, including the item used in the alleged assault, any injuries that were incurred and the identity of the victim. If the victim of an alleged assault is a policeman, firefighter other employed in a similar type occupation, the offense typically will be charged as a felony.

If you’re convicted of a misdemeanor, you may face any of the following sanctions: a maximum 1-year term in county jail (6-month minimum if the weapon is a firearm), fine of up to $10,000 plus other court-imposed fees, community service, informal probation, restitution to the victim and other penalties.

A felony conviction may result in a more serious term of incarceration in county jail or state prison from 2 to 4 years, as well as the possibility of a “strike” on your record under California’s Three Strikes Law.

Defense Strategies

If you’re charged with assault with a deadly weapon in San Diego, I will diligently seek dismissal of these serious charges or an acquittal after trial. I will carefully examine the facts of your case, including the reliability and credibility of the complaining witnesses. I will also investigate to determine if your constitutional rights have been violated or the police have rushed to judgment or engaged in misconduct. Additionally, I will analyze the underlying facts to determine whether the prosecutor has overcharged a simple assault.

If you have any questions, contact me for a free case evaluation to discuss your case and go over your legal options.