In this article we cover everything related to assault with a deadly weapon, which is another of the violent crimes. California Penal Code 245 defines it as the attempt to intentionally injure another person with a deadly weapon.
If you have been charged with a deadly weapon assault, the criminal lawyers in Los Angeles at Lluis Law can help you.
Request a free consultation and we will be happy to offer answers to your concerns.
The crime of assault with a deadly weapon in California
Assault with a deadly weapon is also known as “ADW”. Deadly weapon means any object used to cause bodily harm another person.
For example, firearms, knives, and other penetrating puncture instruments. Even stones, bottles, scissors, dogs or a motor vehicle used as a weapon.
To establish this crime under California law, it must be proven that the accused:
- Performed an act that could have resulted in the use of force (offensive damage / contact) against another person.
- For this he used a lethal weapon, the result of which could be or have been “a great bodily injury”.
- The act was done intentionally.
- During the act the accused was aware of the damage it would cause. Just as any other reasonable person would have thought.
- The defendant had the ability to cause bodily harm to the victim with the deadly weapon or by applying force.
Great bodily injury is when the person who suffered those was physically harmed in a significant way:
- Bone fractures.
- Bullet wounds.
- Dog bites.
- Bruising in the eyes.
To establish the charge of assault with a deadly weapon, it is not necessary that the victim has necessarily been injured.
The point is whether during the act the accused could have applied force against the victim. Not if he triggered the gun or actually applied force.
Possible defenses for ADW
A good violent crime lawyer can refute the prosecutor’s charges based on a timely defense strategy. Not always accusations and arrest of a person by ADW result in convictions.
The most common defenses for this crime include arguing that:
- The supposed “deadly weapon” was not such, therefore it did not represent a greater danger.
- The defendant’s actions were not intentional.
- The defendant acted in legitimate self defense.
The burden of proof is on the prosecution. So beyond a reasonable doubt, the prosecuting party must prove the guilt of the accused.
Penalty for the crime of assault with a deadly weapon
According to the California Penal Code, assault with a deadly weapon can be classified as a “wobbler” crime . In this sense, the prosecutor could charge the defendant with a misdemeanor or serious crime:
It is punished with:
- Up to one year in prison in a county jail.
- Fine of up to $ 1,000.
It is punished with:
- Prison terms of up to four years in a state prison.
- Formal probation.
- Fine of up to $ 10,000.
There are two situations that aggravate crime and, therefore, sanctions are more severe:
- When a firearm is used during the event.
- The crime is committed against a law enforcement officer.
People convicted of this crime lose their right to possess and carry arms.
1. Use of firearm
If the ADW crime is committed with an ordinary firearm, it could be punished as a wobbler. The only thing that changes regarding the penalties mentioned above is prison time.
For minor offenses the sentences are six months minimum.
When the crime involves other types of firearms, the penalties increase to 12 years in prison. For example:
- Semi-automatic firearm.
- Machine gun.
- Assault rifle.
- .50 BMG rifle. 19
2. Assault on a police officer or firefighter
The crime becomes a felony and is punishable by up to five years in state prison when:
- The victim is a police officer or a firefighter.
- The accused was aware or should have known.
Removal of ADW conviction
This is possible with the help of a specialized criminal defense attorney in Los Angeles. To obtain a criminal record expungement, the defendant must successfully complete:
- Probation, or
- Jail time (whichever is more relevant).
Even if a trial period is violated, the judge may still grant a criminal record expungement. This is especially important when a person needs to qualify for a job, apply for mortgages, or for study.
If you need to clear your criminal record, Lluis Law attorneys are specialists in the matter. We also offer our services as certified immigration attorneys in Los Angeles.
Some crimes in California – including assault with a deadly weapon – have immigration consequences.
How can it harm me if I am an immigrant?
Being considered a serious crime, assault with a deadly weapon can harm the legal status of a foreigner. For these cases, California law establishes that the person accused of these types of crimes can be:
- Deported from the United States.
- Marked as inadmissible.
However, early intervention by an experienced violent crime and immigration attorney can fix it. At Lluis Law we have over 50 years of combined experience helping immigrants accused of various crimes.
We can be your defense against deportation. Do not hesitate to contact us if you face a process in which you can be expelled from the country.
Other related crimes
Assault with a deadly weapon may be related to other gun, drug and theft crimes. For example:
- Brandishing (displaying) a weapon or firearm (PC 417).
- Assault on a public official (PC 217.1).
- Do not control a dangerous animal (PC 399).
- Armed robbery (PC 211 – 215).
- Attempted murder.
Differences between assault with a deadly weapon and attempted murder
It is not difficult to confuse a case of assault with a deadly weapon with the crime of attempted murder. Fundamentally because both use a deadly weapon.
This does not mean that the victim actually intended to murder the victim. Just as there are aggravating circumstances there are also extenuating circumstances. The case must be examined by the jury and the judge in context.
While crimes of violence are generally accompanied by criminal intent, they are sometimes spontaneous. They are not planned actions, but arise in the heat of a discussion, a dispute or an unforeseen situation.
Intention is the main difference between one and the other crime. Therefore, to establish the crime of attempted murder, the prosecutor must prove the intent of the accused.
Showing a weapon or even threatening does not necessarily mean wanting to murder another person. The prosecution must also demonstrate that the defendant took a decisive step to kill the alleged victim.
How Lluis Law can help you
As it is a “wobbler” crime that can be prosecuted as a misdemeanor or felony, there is big room for the judge to decide. The sentence for an ADW will depend on the defense and the lawyer’s ability to challenge the prosecutor’s arguments.
Of course, there are other key elements on the sentence. Whether or not the victim suffered injuries, their age and that of the accused. The criminal record of the accused and the evidence presented by the accusing party.
What we can do for you:
- Study the case in detail to determine the strengths and detect the weaknesses of the prosecution.
- We value the evidence to design the defense strategy.
- If the evidence gives you the opportunity to request a lesser sentence, our attorneys will take full advantage of this circumstance.
- When the evidence is inconclusive, flawed, or obtained by unlawful means, we may request that charges to be dropped.
Having an experienced, capable and knowledgeable violent crime lawyer on your side is what makes it possible to win trials. At Lluis Law we have litigated for more than four decades in California courts treating these cases with good results.
Call us with confidence if you have been charged with deadly weapon assault in California. We will offer you a free consultation to explain the law, your benefits, and your options. The testimonies of those we have defended are our best proof.