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Assault With a Deadly Weapon in Alameda and Contra Costa County

When people get caught up in an argument or fight, they may physically harm or threaten another person. Assault or battery can result in criminal charges, including a fine and possible jail time. However, if assault involves a dangerous weapon, the defendant may be facing felony criminal assault charges in California.

Assault With a Deadly Weapon in California

Under California Penal Code PC §240(a)(1), “any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

Assault Likely to Produce Great Bodily Injury

Felony assault charges do not require the defendant to use a deadly weapon, under California Penal Code PC §240(a)(4), “any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

The Elements of Assault With a Deadly Weapon Charges

In order for an individual to be convicted of assault with a deadly weapon, the prosecutor has to prove all elements of the crime beyond a reasonable doubt. If the jury does not find the defendant guilty of all the elements of the crime, the defendant should be found “not guilty.”

The elements of assault with a deadly weapon under California Penal Code §245 include:

  1. The defendant did an act with a firearm or deadly weapon that by its nature would directly and probably result in the application of force to a person;
  2. The defendant did the act willfully;
  3. When the defendant acted, he or she was aware of the facts that would lead a reasonable person to realized that his or her act by its nature would directly and probably result in the application of force to someone; and
  4. When the defendant acted, he or she had the present ability to apply force to a person.

“Willfully” means a person commits the act on purpose. It does not require that they intended to hurt someone or break the law. However, accidentally doing something would not count as a willful action.

To be convicted of assault with a deadly weapon, the victim does not need to suffer any serious injury. The victim may not even be touched by the defendant. It is enough that the defendant intended to use force against someone.

What is a deadly weapon?

A deadly weapon includes any object or instrument that is capable of causing death or great bodily injury. Many people think of deadly weapons as a gun or a knife; however, any number of items can qualify as a deadly weapon, including:

  • Broken bottle
  • Screwdriver
  • Attack dog
  • A car
  • Baseball bat
  • Crowbar
  • Nunchaku
  • Brass knuckles
  • Rocks

Assault with a Firearm

Under California Penal Code PC §240(a)(2), “any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”

Assault with a firearm carries the same maximum criminal penalties as assault with other deadly weapons. However, when a firearm is involved, there is a mandatory minimum sentence of 6 months imprisonment.

Under California Penal Code PC §240(b), the use of a semiautomatic firearm during an assault shall be punished by imprisonment for 3, 6, or 9 years.

Under California Penal Code PC §240(a)(3), the use of an assault weapon carries much higher penalties. Using an “assault weapon” as defined by California law, will result in imprisonment in state prison for 4, 8 or 12 years.

Assault on a Police Officer or Firefighter

There are enhanced penalties when the victim of an assault with a deadly weapon is a peace officer or firefighter. This may include firefighters, paramedics, police officers, sheriff's deputies, harbor police, marshal, or government investigator.

Under California Penal Code PC §240(c), “any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.”

Defenses to Assault With a Deadly Weapon Charges

There may be a number of legal defenses available to charges of assault with a deadly weapon. This includes claiming self-defense or defense of another. It is a defense to assault charges if the person was acting in self-defense or defending another person.

In order to show the defendant acted in self-defense, he or she has to reasonably believe they or another person was in imminent danger of assault or suffering bodily harm and he or she used a reasonable amount of force necessary in defense.

East Bay Criminal Defense Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing criminal threat and assault charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick.

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We offer a free initial consultation to people accused of DUI and criminal offenses in the Bay Area. Call us at 510-785-1444 to schedule yours.

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