Assault with a Deadly Weapon (Penal Code 245) – Orange County Criminal Defense

Penal Code section 245 is generally referred to as “aggravated assault” or assault with a deadly weapon, but there are actually several variations.

Penal Code section 245(a)(1) – Assault with a deadly weapon

This section covers an assault with a deadly weapon other than a firearm.  Any instrument that is capable of inflicting great bodily injury or death could be considered a deadly weapon.  Even things that are not specifically designed as a weapon could fit this broad category.  Obviously, knives, baseball bats or a 2×4 with nails sticking out would be a deadly weapon as long as it is something that is capable of producing great bodily injury or death.

Penal Code section 245(a)(1) – Assault with force likely to produce great bodily injury

Although under the same Code section, 245 can be charged as an assault by force that could have produced great bodily injury.  Under this section, they don’t have to prove that any substantial injury actually was inflicted, but that it could have been inflicted.  The typical versions of this version of 245 are severe punches, kicks to the head or other vital organs, etc.  It can be the result of being thrown or pushed into something, such as off a balcony or against a wall, as long as the force is sufficient to inflict those substantial injuries.

Penal Code section 245(a)(2) – Assault with a firearm

If an assault was done with a firearm, it’s charged under this section.  An interesting point is that in any assault, a person must have the “present ability” to inflict injury during the assault. That means that an unloaded firearm pointed at someone is NOT capable of inflicting injury.  Is there another crime?  Yes – a misdemeanor charge of brandishing a weapon under Penal Code section 417(a)(2).  The difference between the two is huge.  With all criminal charges, the prosecution must prove all the elements beyond a reasonable doubt, including the “present ability” (a.k.a. loaded) element.

Sentencing range and consequences

All the various charges under 245 are “wobblers” – they can be charged as either a felony or a misdemeanor.  As a felony, they carry up to 4 years in state prison.  As a misdemeanor, they carry up to a year in county jail.

Most importantly, 245(a)(1) – if charged as assault with a deadly weapon – and 245(a)(2) – assault with a firearm are “strikes” under California’s three strikes law.  Assault by force likely to produce great bodily injury is not a strike and any of the sections charged as misdemeanors are not strikes.

Because of the possible consequences and harsh sentences involved, these are not charges to take lightly.  If you’re facing assault charges or are under investigation, let’s discuss your situation further in a face to face consultation.

Joe Dane

(714) 532-3600

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