Definition of Assault with a deadly weapon in California

The crime of assault with a deadly weapon is defined in California Penal Code § 245, and the specific charge is determined by what type of weapon was used, who it was used on, and whether the assault was done by means likely to produce great bodily injury (GBI).

  • 245(a)(1) – Assault with a deadly weapon (not firearm)
  • 245(a)(2) – Assault with a deadly weapon (firearm)
  • 245(a)(3) – Assault with a deadly weapon (machine gun)
  • 245(a)(4) – Assault with a deadly weapon (GBI – great bodily injury)
  • 245(b) – Assault with a deadly weapon (semiautomatic firearm)
  • 245(c) & (d) – Assault with a deadly weapon (peace officer or firefighter)

**Definitions

**”Firearm” – “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (Cal. Pen Code § 16520(a).)

**”Machinegun” – “any weapon that shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger…”, any part(s) designed and/or intended to convert a weapon into a machinegun, and/or any weapon deemed readily convertible to a machinegun. (26 USC §5845(b).)

**”Great Bodily Injury” – Significant or substantial harm done to the body, to include: loss of consciousness, bone fracture, disfigurement, etc. Great bodily injury done to a person authorizes a judge to sentence defendants for a longer period of time than he/she normally would have. (Cal. Pen Code § 12022.7.)

**”Semiautomatic Firearm” – “any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.” (18 USC §921(a)(28).)

What the DA Must Prove

In order for a person to be convicted of Assault, all the People must show is that:

  • 1. The defendant assaulted a person; and
  • 2. The assault was committed with a deadly weapon or instrument.

**Definitions

**”Assault” – “an unlawful attempt, coupled with a present ability, to commit a violent injury” on another person.” (Cal. Pen Code § 240.)

**”Deadly Weapon” – “any object, instrument, or weapon that is capable of producing and likely to produce death or great bodily injury.” (Cal. Pen Code § 245(a)(1).)

Punishment for Assault with a Deadly Weapon in California

  • §245(a)(1) – Assault upon the person of another with a deadly weapon or instrument other than a firearm is punishable by imprisonment in the state prison 2 to 4 years or in a county jail for up to 1 year, and/or by a fine up to $10,000.
  • §245(a)(2) – Assault upon the person of another with a firearm is punishable by imprisonment in the state prison for 2 to 4 years or in a county jail for 6 months to 1 year, and/or a fine up to $10,000.
  • §245(a)(3) – Assault upon the person of another with a machinegun (defined above) or an assault weapon, as defined in Penal Code §30510, 30515 or 30530, is punishable by imprisonment in the state prison for 4, 8, or 12 years.
  • §245(a)(4) – Assault upon the person of another by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for 2 to 4 years or in a county jail for up to 1 year, and/or a fine up to $10,000.
  • §245(b) – Assault upon the person of another with a semiautomatic firearm shall be punished by in imprisonment in the state prison for 3, 6, or 9 years.
  • §245(c) – Assault upon the person of a peace officer or firefighter with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury while the peace officer or firefighter is clearly engaged in the performance of his/her duties is punishable by imprisonment in the state prison for 3 to 5 years.
  • §245(d) – Assault upon the person of a peace officer or firefighter with a with a firearm while the peace officer or firefighter is clearly engaged in the performance of his/her duties is punishable by imprisonment in the state prison for 4, 6 or 8 years.

Defenses to Assault with a Deadly Weapon

There are many defenses to the charge of Assault with a Deadly Weapon, depending on which section you are charged with, to include: self-defense, inability to carry out the assault, lack of intent, etc. Do not hesitate to discuss the elements of your crime with your defense attorney so that you may formulate the best possible defense.

Immigration Consequences

Criminal convictions can have drastic immigration consequences, such as deportation, denial of naturalization and exclusion from admission. Therefore, if you are not a U.S. citizen and you are charged with Assault with a Deadly Weapon in California, it is critical that you speak to a knowledgeable criminal/immigration attorney about your specific immigration status, your current criminal case, and your entire criminal history, to find out what effect an assault conviction would have on your immigration status.