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Riverside Assault With a Deadly Weapon Attorney

What is Assault With a Deadly Weapon?

The penalties for assault with a deadly weapon are severe, so if you or a family member has been arrested for Assault With a Deadly Weapon (PC 245(a)(1)), and want top-notch defense, call a criminal defense attorney in Riverside at (951) 667-5293 if you live in Riverside County or (714) 758-5293 in Orange County.

In California according to PC 245(a)(1), Assault With a Deadly Weapon (ADW) in most cases is a Felony charge that generally carries penalties of jail time and financial penalties. If you have been charged with Assault with a deadly weapon it is very important to reach out to an experienced Riverside assault with a deadly weapon lawyer.

The elements of an Assault With a Deadly Weapon charge include:

  1. That the defendant did an act with a deadly weapon (other than a firearm) that by its nature would directly and probably result in the application of force to a person;
  2. The defendant did that act willfully;
  3. When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone;
  4. When the defendant acted, he/she had the present ability to apply force with a deadly weapon; AND
  5. The defendant did not act in self-defense or defense of someone else.

The slightest touching can be enough if done in a rude or angry way under this law, and the prosecutor is not required to prove that a defendant actually touched someone.

Contents

What is Considered a “deadly weapon”?

A deadly weapon under PC 245(a)(1) is defined as any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

What Types of Defense Can An Attorney Use?

First and foremost, a prosecutor must prove each and every element of their case beyond a reasonable doubt to a jury.

  • False Allegations: Assault attorneys know false allegations are common with assault charges. Often the person making the false allegations does so because they are worried about their own responsibility for the confrontation. Other times, things like jealousy or anger can be enough to motivate a person to make false statements and allegations. Each case is different, and false allegations can often be attacked through conflicting evidence and proper cross-examination of the witness.
  • Accident: The prosecutor has to prove that the assault was willful and unlawful. True accidents, therefore, wouldn’t qualify. However, before asserting an accident defense, it’s important to recognize that the accident has to be reasonable and believable to a jury. An accident is limited as a defense also to those actions that were not intended at all. A good example of an accident would be opening a door and the door hitting someone on the other side that you did not know was there. An example of a case where an “accident” defense would not work is if you threw a rock in the direction of someone else to scare them but not intending to hit them. Whether or not the rock hit that person, you would be technically guilty of Assault with a Deadly Weapon under that fact pattern.
  • Self-Defense: One of the most common scenarios in which an ADW comes up is in a scenario where it is unclear who the initial aggressor is. Frequently, the party responsible for starting the physical altercation or confrontation will deflect blame and not clearly detail their role as the aggressor or instigator, claiming to be the victim. This is because they are aware of their own potential criminal liability. The right to self-defense means that you have the right to defend yourself when faced with grave, imminent danger and you believe such force is necessary to defend yourself. You are only entitled to use that force reasonably necessary to defend against the danger.

What are the Penalties?

Because Deadly weapons violations can be charged as either a misdemeanor or felony, the sentencing varies considerably. Find your specific charge below and see if it is considered a Misdemeanor or Felony.
If convicted as a MISDEMEANOR, punishment could include:

  • Up to 1 year of jail
  • Up to $1,000 in fines
  • A 10-year prohibition on firearm ownership/possession pursuant to PC 29805 (if you violate your probation, contact a weapon charges lawyer in Riverside before it is too late)
  • Confiscation/destruction of the weapon
  • Criminal Protective Order (Restraining Order)
  • Up to 5 years of Summary (informal) probation
  • Anger Management
  • Restitution

If convicted as a FELONY, the potential punishment depends upon whether or not you are given probation by the Judge.

Regardless of whether given probation or not, a conviction for Assault with a Deadly Weapon would constitute a “Strike” for purposes of California’s Three Strikes Law.

IF granted probation:

  • Up to 1 year of jail
  • Up to $10,000 in fines
  • A lifetime ban on firearm ownership/possession
  • Confiscation/destruction of the weapon
  • Criminal Protective Order (Restraining Order)
  • Up to 5 Years of Formal Probation
  • Anger management
  • Restitution

IF denied probation:

  • Either 2, 3, or 4 years in state prison
  • Up to $10,000 in fines
  • A lifetime ban on firearm ownership/possession
  • Confiscation/destruction of the weapon
  • Ineligible for future reduction to a misdemeanor pursuant to PC 17(b)
  • Restitution

PC 245a(2) – Assault with a Firearm

PC 245(a)(2) is commonly known as Assault With a Firearm in California. Firearms would include all single action handguns, such as revolvers & pistols, as well as shotguns and rifles.

Is Assault with a Firearm (pc 245(a)(2)) a misdemeanor or a felony?

In California, PC 245(a)(2) Assault with a Firearm is a wobbler, meaning it can be EITHER a misdemeanor OR a felony. This decision depends heavily upon the facts as well as the defendant’s prior criminal history.

I’m charged with PC 245(a)(2) Assault with a Firearm – Can the prosecutor also file an enhancement for personal use of a firearm?

Unfortunately, the penal code allows for this. While typically you cannot be charged with an enhancement that covers the exact same conduct for which you are charged in the underlying offense, the state legislature made an exception for offenses under PC 245.

The additional firearm enhancements for personal use of a firearm can add up to 10 years of

If you or a family member has been arrested for Assault With a Firearm (PC 245(a)(2)), call me at (951) 667-5293 if you live in Riverside County or (714) 758-5293 in Orange County.

PC 245a(3) – Assault with a Machine Gun

What is Considered a Machine Gun under CA Law, PC 245(a)(3)?

Penal Code 245(a)(3) are charges related to assault with a machine gun, as opposed to a deadly weapon or firearm, as previously discussed.

A machine gun under PC 245(a)(3) is defined as any weapon that shoots, is designed to shoot or can be readily restored to shoot automatically more than one shot by a single function of the trigger and without manual reloading.A .50 BMG rifle is also covered by PC 245(a)(3) with very specific dimensions. Assault weapons are covered by PC 245(a)(3) and include a laundry list of banned weapons from Penal Code Sections 30515 and 30510.

To prove a defendant guilty of PC 245(a)(3), the prosecution must prove:

  • That the defendant did an act with a (machine gun/assault weapon/ .50 BMG rifle) that by its nature would directly and probably result in the application of force to a person;
  • The defendant did that act willfully;
  • When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone;
  • When the defendant acted, he/she had the present ability to apply force – meaning in a harmful or offensive manner- with a (machine gun/assault weapon/ .50 BMG rifle), and,
  • The defendant did not act in self-defense or defense of someone else.v

However, the weapons described in PC 245(a)(3) are also illegal under other sections of the California Penal Code, so defenses to PC 245(a)(3) may not be absolute defenses to ALL related crimes, but just to PC 245(a)(3)

A key defense point for this charge that differs from the others is Improper designation of a weapon as a “Machinegun,” “Assault Rifle,” or as a “.50 BMG rifle”: Weapons are very technical and specific. The way PC 245(a)(3) defines some of the weapons it applies to are not as specific as to create no grey area.  One of the possible defenses to PC 245(a)(3) (as opposed to PC 245(a)(2)) is that the weapon used doesn’t fall under the specifications required.

Penalties for PC 245(a)(3)

Regardless of whether given probation or not, a conviction of PC 245(a)(3) Assault with a Machinegun or Assault Rifle would constitute a “Strike” for purposes of California’s Three Strikes Law

PC 245a(4) – Assault by Means of Force Likely to create great bodily injury

Because PC 245(a)(4) can be charged as either a misdemeanor or felony, the sentencing varies considerably. You can view the list of possible penalties at the top of this page.

Is PC 245a(4) considered a “Strike”?

PC 245(a)(4) by itself does not constitute a “Strike” under California’s Three Strikes Law.

However, if the PC 245(a)(4) charge is accompanied by a particular enhancement, such as a PC 12022.7 (Personal Infliction of Great Bodily Injury, or GBI), then it WOULD qualify as a “Strike.”

Is PC 245a(4) a Felony or Misdemeanor?

In California, PC 245(a)(4) Assault by Means of Force Likely to Create Great Bodily Injury is a wobbler, meaning it can be EITHER a misdemeanor OR a felony.

This decision depends heavily upon the facts as well as the defendant’s prior criminal history.

PC 245(b) – Assault with a Semi-Automatic Firearm

What is the penalty for assault with a semi-automatic firearm (pc 245(b))

If convicted as a FELONY, the potential punishment depends upon whether or not you are given probation by the Judge.
Regardless of whether given probation or not, a conviction of PC 245(b) Assault With A Semi-Automatic Firearm would constitute a “Strike” for purposes of California’s Three Strikes Law.

Is Assault With A Semi-Automatic Firearm (PC 245(b)) A Misdemeanor Or A Felony?

In California, PC 245(b) / Assault with a Semi-Automatic Firearm is always a Felony.

What Is Considered A “Semi-Automatic” Firearm

A “Semi-Automatic” Firearm under PC 245(b) is a firearm that extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.

What Does The Word “Willfully” Mean (PC 245(b))

Someone commits an act “willfully” under PC 245(b) when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

PC 245 (c) – Assault on a Peace Officer or Firefighter

In California (pc 245(c))is assault on a peace officer or firefighter with a deadly weapon or by means of force likely to create great bodily injury. This is a charge that is a “Strike” under California’s Three Strikes Law and is always a Felony.