the State Bar of California
the San Diego Union-Tribune
The Press-Enterprise

Assault With a Deadly Weapon

“Assault with a deadly weapon is a “wobbler” offense, meaning that it can be filed as a misdemeanor or felony, depending upon the specific circumstances involved in each case. A “deadly weapon” can be any object, instrument, or weapon used in a manner that makes it likely to cause death or great bodily injury – including, but not limited to, guns (whether loaded or unloaded), knives, glass bottles, vehicles, rocks, and the like. This offense is generally charged by prosecuting agencies as a violation of Penal Code section 245, subdivision (a), subsection (1).

As a misdemeanor, a violation of Penal Code section 245, subdivision (a), subsection (1), carries a maximum possible sentence of one year in county jail. As a felony, this offense carries a maximum possible sentence of four years in state prison.

The decision to file felony versus misdemeanor charges depends largely on three things: (1) the type of weapon and circumstances involving the alleged assault; (2) the extent of the injury suffered by the alleged victim; and (3) the alleged perpetrator’s prior criminal history, if any. These same three factors will also have a significant impact on what the precise criminal penalties will be in each case.

Under some circumstances, when the prosecuting agency elects to file felony assault with a deadly weapon charges, they also elect to file a special allegation pursuant to Penal Code section 12022.7, et seq. as well. This is a serious enhancement that should not be taken lightly for many reasons. The allegation requires that the prosecution prove that the defendant “personally inflicted great bodily injury” upon another person. If convicted of this allegation, this adds an additional minimum of three years to your custody sentence, but it could be more, depending upon the circumstances and which subdivision is alleged under Penal Code section 12022.7. If admitted or found to be true, this allegation also has the effect of making the underlying conviction a strike pursuant to California’s Three Strikes Law. This could have the collateral consequence of doubling any sentence you may receive in certain other felony convictions that may occur in the future. This is true even if you later apply to have your underlying conviction expunged pursuant to Penal Code section 1203.4, et seq., and that request is granted. If the expunged conviction is a “strike” offense, it will still count as a strike for purposes of enhanced punishment in the future.

The penalties only get more severe from this point, especially in cases where firearms are alleged to have been used in the commission of the assault. Cases involving assaults with firearms are typically filed by prosecuting agencies as violations of Penal Code section 245, subdivision (a), subsection (2), and are discussed in more detail in a separate section below.

Assaults involving no weapons other than the person’s “hands and feet”, do not qualify as “deadly weapons” pursuant to this statute. Cases involving assaults with “hands and feet” are typically filed by prosecuting agencies as violations of Penal Code section 245, subdivision (a), subsection (4), and are discussed in more details in a separate section below.

Do not, under any circumstances, attempt to fight “the system” alone by trying to take matters into your own hands. You need a skilled and experienced attorney who understands how to evaluate the evidence in your case and explore any potential defenses that may exist in the law.

If you or someone you love is facing criminal charges for assault with a deadly weapon, contact your Temecula/Murrieta criminal defense lawyer at the Law Office of Julie Ann Baldwin, APC for your free case consultation now. Your future and your freedom deserve to be taken seriously by an experienced attorney who is committed to quality representation and compassionate advocacy, every step of the way.

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