Orange County Assault with a Deadly Weapon Lawyers
If you have been charged with assault with a deadly weapon, you face serious consequences. Unfortunately, many innocent people are charged with this crime. Sometimes, people fabricate stories to police by misrepresenting themselves or others as victims where a weapon or physical force was involved. At The Law Offices of Bryan R. Kazarian in Orange County, we want to hear your side of the story and help address the charge against you.
Different Types of Assault with a Deadly Weapon Charges in California
Under California Penal Code (PC) 240, assault is described as any action that can result in harm to an intended victim or any action that is intended to threaten such a person. When the assault includes a deadly weapon, the crime becomes assault with a deadly weapon and includes one or more additional charges, such as:
- PC 245(a)(1) – Assault with a deadly weapon (not a firearm)
- PC 245(a)(2) – Assault with a deadly weapon (a firearm)
- PC 245(a)(3) – Assault with a deadly weapon (machine gun/.50 BMG rifle)
- PC 245(a)(4)-Assault with a deadly weapon (force likely to produce great bodily injury)
- PC 245(b) – Assault with a deadly weapon (semiautomatic firearm)
- PC 245(c) & (d) – Assault with a deadly weapon/firearm (against a policeman or firefighter)
The definition of “deadly weapon” under California law includes firearms and “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.” In addition to firearms, such weapons as knives, concealed explosives (including fixed ammunition), darts, clubs, brass knuckles, imitation firearms, and any other object that “is prohibited by any provision listed in Section 16590.”(California Penal Code 16430)
“Firearm” is defined as “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.” (California Penal Code 16520(a))
Under United States law, a semiautomatic firearm is “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 U.S. Code § 921)
“Great bodily injury” is defined as “significant or substantial harm to the body, to include: loss of consciousness, bone fracture, disfigurement, etc.” (California Penal Code § 12022.7)
Burden of Proof
In general, the prosecution decides which category of assault with a deadly weapon to charge you with, usually based on which they believe they can prove in court to sustain a conviction. Keep in mind that the prosecution has the burden of proof; that is, they will have to prove beyond a reasonable doubt that you committed every element of the crime.
Penalties for Assault with a Deadly Weapon
If you are charged with assault with a deadly weapon, the charge may be either a felony or a misdemeanor. The prosecution will decide whether to charge a felony or misdemeanor based on the circumstances of your case and your history of criminal activity, if any. Several considerations will factor into the prosecution’s decision:
- What was the weapon or instrument you used while committing the alleged assault?
- Did the alleged victim sustain an injury or injuries and, if so, what was the severity?
- Who was your alleged victim? In particular, was this person a law enforcement or other protected officer?
For misdemeanor charges when the weapon is not a gun you may be penalized with:
- Summary (misdemeanor) probation
- A county-jail term of no more than one year
- A fine no greater than $1,000
For felony charges when the weapon is not a gun, you may be penalized with:
- Formal (felony) probation
- State imprisonment for two, three or four years
- A fine no greater than $10,000
- Both imprisonment and a fine
Your potential penalties become more severe if you are charged with use of a firearm during your alleged assault. For an ordinary firearm, the prosecution may choose to charge you with a misdemeanor or a felony.
With misdemeanor charges for assault with an ordinary firearm, you may be penalized as follows:
- Summary (misdemeanor) probation for up to five years
- A county-jail term for a minimum of six months but not more than one year
- A fine no greater than $1,000
For felony assault with an ordinary firearm, you may be penalized with:
- Formal (felony) probation
- State imprisonment for two, three or four years
- A fine no greater than $10,000
- Both a fine and a prison term
In all cases, assault with a semiautomatic firearm can only be charged as a felony which has increased prison terms:
- If you are charged with assault using a semi-automatic firearm, your potential term in a state prison increases to three, six, or nine years.
- If you are charged with assault using a machine gun, an assault weapon, or a .50 BMG rifle, your potential prison time increases to four, eight, or twelve years.
You may face even more severe penalties under Section 245(c)&(d) PC if:
- Your alleged victim was a peace officer or firefighter in the line of duty at the time of the assault
- You knew or you reasonably should have known that the alleged victim was a peace officer or firefighter in the line of duty at the time of the assault
Assaulting a peace officer or firefighter with a deadly weapon is a felony.
- If no firearm is involved, the penalty is three, four, or five years in state prison.
- If a firearm is involved, some penalties vary:
- The penalty for using an ordinary gun is four, six, or eight years in state prison.
- The penalty for using a semi-automatic firearm is five, seven, or nine years in state prison.
- The penalty for using a .50 BMG rifle, an assault weapon, or a machine gun is a possible six, nine, or twelve years in state prison.
A conviction of this statute, with the exception of PC 245(a)(4), will result in a “strike” under California’s “Three Strikes” law.
Common Defenses for Assault with a Deadly Weapon
The facts of your case will determine the defenses The Law Offices of Bryan R. Kazarian will recommend. The following are some of the common defenses we have used successfully with our clients:
- You did not use any deadly weapon or apply a force that would cause great bodily harm. We may be able to challenge assertions by the prosecution that you used a deadly weapon and/or force that would cause great bodily harm.
- You acted in self-defense or in the defense of a third party. Self-defense can justify your criminal act if your response was reasonable in the situation, and your actions were in good faith.
- Your action was not voluntary and you did not act with general criminal intent. The prosecution does not have to prove that you planned to cause harm, only that you intended to act as you did. However, the prosecution must prove that you acted voluntarily. If the act was accidental, a mistake, through carelessness, or misinterpreted by the victim, it was involuntary. You cannot be convicted for assault with a deadly weapon for an involuntary act.
- The accusations are false. By diligently interviewing witnesses, we may uncover evidence that shows that you have been falsely accused to set the record straight.
- You were unable to execute a threat. If, for example, you threatened to shoot someone but had no gun, you would have been unable to execute your threat.
- The alleged victim consented to your actions. For example, someone signs a consent form for surgery, then accuses the doctor of assault.
- It was factually impossible for you to have assaulted someone as alleged. For example, you may have had an injury or disability that would have caused you to be unable to have committed the assault.
Elements of Proof to Prove Guilt for Assault with a Deadly Weapon
To sustain a conviction of this charge, a jury must find that the prosecution proved these elements of your crime beyond a reasonable doubt. At The Law Offices of Bryan R. Kazarian in Orange County, we can help clarify whether these elements exist in your case:
- You executed an act that, naturally, is likely to result in the direct use of force against another person. Force can be any offensive or harmful touch, however slight. You can be guilty of assault with a deadly weapon, even if your touch could not or did not result in any injury. The contact can be direct or indirect through an object. Also, you need not succeed in using force, only act in a way likely to cause the use of force.
- Your action included use of a deadly weapon or would produce force that would likely cause significant bodily injury. Deadly weapons include not only guns and knives, but any object that can be used to cause harm — stabbing someone with a pen, for example. The definition of deadly weapons excludes body parts, although body parts like hands or feet become deadly weapons if you use them with a force likely to cause great bodily injury.
- You acted willfully. You deliberately or willingly acted, even if you did not intend to hurt anyone, break the law, or gain an advantage.
- You knew your actions would likely result in the use of force. You did not have to plan to use force.
- When you acted, you had the present ability to apply force using a deadly weapon or force that is likely to cause significant bodily injury. The prosecutor must show that you intended and were able to commit a battery.
- You did not act in self-defense or the defense of someone else. The prosecutor must show that you were not defending yourself or someone else.
Self Defense and Assault with a Deadly Weapon
Your claim of self-defense may only be successful if your attorney can establish that you reasonably believed you or another individual were likely to be physically harmed. That is, you acted to defend yourself or another person from imminent harm. Note that you must not have used excessive force disproportionate to the threat.
Keep in mind that the threat of harm does not have to actually be present. If you felt the threat of harm was present, your actions might be justified. Also, under the law, you are not required to retreat. You may stand your ground to defend yourself and others.
Contact The Law Offices of Bryan R. Kazarian if you have been charged with Assault with a Deadly Weapon
Because of the complexities of assault with a deadly weapon under California law, choosing a lawyer in Orange County with a keen understanding of the law, local courts, and how to mount a successful defense will be critical to protecting your rights. If you face a charge of assault with a deadly weapon in Orange County, contact us online or by calling 855-918-4253.
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