Assault with a Deadly Weapon

Violent crimes are very complex, and the trial or the resulting punishment for assault with a deadly weapon charge will rely on a myriad of legal factors. The availability of fresh, reliable evidence during the initial stages of a charge will determine the angle of defense and ultimate trial outcome for a defendant. LA Criminal Defense Attorney works with expediency to secure significant evidence for defense through competent investigating or by coordinating with justice system stakeholders in Los Angeles County. With this, you can be assured that we will handle your case with a high level of professionalism and expertise.

What Is the Definition Of Assault With A Deadly Weapon?

In legal terms, assault is the unlawful attempt to commit battery; while battery itself is violence or force used against someone resulting in grievous bodily harm. Assault with a deadly weapon can occur due to an aggravating circumstance and is commonly called assault with the intent to commit; murder, robbery, rape or kidnap. Contributory factors to the charge of assault with a deadly weapon are; if a defendant conducted themselves recklessly, intentionally or had knowledge that resulted in illegal contact being made with the victim.

A deadly weapon, in this case, refers to any object and instrument which is inherently deadly; that is used in such a way it’s capable of causing death or significant bodily injury. Section 242 of the California Penal Code establishes the context for the legal connotation of a battery; while section 243(d) is applied where the victim has suffered injury or harm, summarizing assault with battery. Its section 245 (a) (1) of the California penal code however that lays down the severity of the law which prosecutes an assault with a deadly weapon defendant(s).

Section (a) reads in part “…a defendant committing an act assault upon the person of another with a weapon that by its nature would directly and likely result in the application of force on another individual or defendant never used weapon but applied force that would have resulted in grievous bodily injury…” Performance of an act willfully here means that when the defendant committed the offense; they were aware of facts for which a person would directly and probably result in the application of force to that individual.

During the offense commission, a defendant had the present ability to apply force with a weapon, or force resulting in bodily injury. Scenarios that would fit such an assault include;

  • A driver exits their vehicle and fires his gun at another car which has cut him off in a road rage incident, but nobody is injured.

  • During a domestic violence occurrence, a woman fighting with her boyfriend attempts to stab him with a screwdriver, but he manages to get away.

  • A dog owner instructs his ferocious German shepherd to attack passersby.

What is a Weapon?

An assault with a deadly weapon is distinct from other offenses of the same class by the manner in which crime was committed. Any implementation of an object can be used as a weapon as long as it’s handled in a way to inflict bodily or psychological injury. Assault by intoxication is considered similar where a defendant was drunk and struck a child and injured him/her in a clearly marked school zone. There is also assault by threat which is also taken as a weapon due to the victim's fear and apprehension of being grievously harmed. A gun pointed at a victim, for instance, will constitute an assault with a deadly weapon despite there not being any physical injuries inflicted.

Traditional weapons like knives and guns or other objects when they are used to inflict injury; such as mechanical tools, pool cue sticks, steel-toe boots, and brass knuckles or any other objects will incur the charge of assault with a deadly weapon. If a defendant hits or attempts to run over the victim with a vehicle and misses, for instance, there is a liability for the charge of assault with a deadly weapon despite their having not made personal contact. Other everyday items that can be used in a manner to render them weapons, they include;

  • Baseball bats

  • Wrenches and Hammers

  • Animals such as dogs

  • Sticks and pipes

  • Leather belts or rope

  • Sharp objects like scissors.

The prosecution must then seek to prove beyond reasonable doubt that the defendant acted willfully, and during the action; or that he or she was coherent and aware of their actions. An assault with a deadly weapon charge will hold even in the absence of an injured victim, judged on the fact that the weapon's use or intention in the attack had the capability of causing harm or death. Since vehicles are not normally described as deadly weapons, the erratic driving of a defendant resulting in crash and injury would, therefore, make it one.

Is an Assault with a Deadly Weapon a Felony?

A defendant found guilty under this section is to be punished by imprisonment in the state penitentiary for not more than four years, in a county jail that doesn’t exceed one year or by a fine of not less than ten thousand dollars. Law courts can also sentence the defendant with both detention and fine, succeeded by probation period or victim restitution for assault with a deadly weapon charge. If the charge is reduced to simple assault or battery, it becomes a misdemeanor that carries up to a half year county jail term and a fine of twenty thousand dollars, and depending on circumstances of the offense; probation or restitution to the victim(s).

When the defendant committed the offense, he or she had the capability to use a weapon and harm the victim. In the case that an injury was sustained resultant from the offense’s commission, it can be then used as evidence to prove that the defendant is guilty of the assault with a deadly weapon. However, with or without injury, the implement used to threaten or subdue a victim will suffice for a charge of assault with a deadly weapon.

If force likely to produce great bodily injury was used even without a weapon; resulting in bruises, broken bones, and lost teeth, and since there is no standard on what injuries qualify, the prosecution may determine the charge based on the particular facts of the case. A circumstance can arise where the defendant is accused of punching the victim; which in itself is not a deadly weapon under penal code 245 (a) (1). Where, however, excessive force was applied or multiple hits and kicks administered; or the defendant has martial art training, then the punches will be constituted to as a weapon.

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How is an Assault with a Deadly Weapon Charged?

After the defendant is arrested of an assault with a deadly weapon, the prosecuting authorities take their case to the district attorney office who determines whether to press charges or not. The District Attorney relies on the evidence presented by the officers and a criminal defense attorney must take this opportunity to fight for the defendant. A criminal defense lawyer must, therefore, collect as much evidence by the use of private forensic scientists and private detectives before appearing on behalf of the defendant.

This is a crucial time as it determines what charges the person accused of assaulting another with a deadly weapon will face. Without this vital intervention; the District Attorney then makes determinations on what charge to present on the accused. These factors for review by the district attorney will include; whether there was any physical contact or injury, the extent of damage, type of weapon used and the defendant's criminal history if any.

The resultant charge may range from a misdemeanor to a felony, or a complete rejection of the police case file also called a DA's reject. Other offers can also be laid on the table at the district attorneys bidding depending on the facts leading to the commission of the offense, which may include a plea bargain agreement. Depending on the seriousness of the alleged assault with a deadly weapon charge, coupled with the strength of the prosecution’s case or the prospects of a guilty verdict at trial. A deal can be arranged between defense and the prosecution attorney.

The defendant can agree to specific terms while the District Attorney reduces charges. The prosecution can offer a defendant facing multiple charges the chance to plead guilty to one less serious offense and have the other charges dropped. After the defendant’s first plea appearance, the District Attorney must lay out the charges in 15 days whereas bail can then be posted.

Is An Assault With A Deadly Weapon Bailable?

An assault with a deadly weapon may attract a higher amount in bail than battery when the charges are presented. The amount a court sets for a defendant is determined by factors such as the presence and type of weapon used, any injuries sustained and their extent. Arresting authorities can bring charges that may be severe in some instances where misdemeanors are treated like felonies for which a defendant cannot bail out except by a judge’s ruling. It’s the District Attorney who decides regarding the evidence provided and may ask for a bail increase if the amount is deemed by the prosecution too low for the offenses committed.

Factors that can affect the amount of bail or time to post bail for an assault with a deadly weapon charge are; if there is a late filing or the District Attorney rejects the file. The charges may also increase while new evidence may be brought to light that adds counts to the case. If new charges are brought to the table, the bail bonds agency has to file for a new bail hearing in this case to accommodate the new charges, and some may charge for a rewrite. Bail amounts for an assault with a deadly weapon felony are usually ten times those of similar misdemeanors while factors such as the defendant’s criminal history or flight risk are determiners.

A defendant having an outstanding warrant in another jurisdiction, or a hold placed on them will stay detained until such issues can be figured out for the judge to set bail. The California state court system uses complex mathematical algorithms to calculate recommendations for bail in felony cases, and a criminal defense attorney will interpret and formulate defenses to argue for favorable terms.

What is Assault with Assault with a Deadly Weapon Punishable by?

An assault with a deadly weapon defendant whose offense is charged as a misdemeanor can be sentenced to a year in jail with a fine, compensating the victim and loss of rights to owning a weapon. If the district attorney decides that the charge for the crime is a felony, the defendant faces up to four years in prison. Penalties and conditions such as fines, probation or victim restitution will accompany a felony charge for an assault with deadly weapon conviction. When the weapon used is a firearm, longer prison sentences of up to 12 years may be in line for a defendant within the state of California.

Specific individuals in the public's service such as peace officers, firefighters, police, Emergency Response Technicians and school workers have statutes of protection by the law, that make assaulting them a severe crime. A peace officer attacked with a deadly weapon by a defendant would result to an additional five years being added to the prison sentence, and there are also special regards to this law when it comes to domestic violence.

Penalties relating to assault with a deadly weapon, in general, will also look at the weapon or instrument used to commit the alleged crime and if the assault victim sustained an injury or its severity. Additionally, whether a firearm was used or the victim was a law enforcement officer, firefighter, or other protected public servants would hike up the sentence for an assault with a deadly weapon charge.

What Defenses can be used for an Assault with a Deadly Weapon Charge?

An assault with a deadly weapon case carries a maximum of four years in a California state penitentiary, a ten thousand dollar fine and a permanent criminal record. A defendant is also placed on prolonged probation and will earn one strike according to California’s three strike laws. Having a defense legal counsel greatly assists the defendant in an assault with a deadly weapons case by researching backgrounds and compiling evidence to develop a viable defense.

In Addition, according to California's Three Strikes Law; a conviction from an assault with a deadly weapon charge would amount to a "strike," which may come up to hamper future defenses and would certainly enhance any convictions. The defendant may also lose rights and privileges such as firearm licenses and the cumbersomeness of a criminal record.

Factual impossibility:

Defense counsel can argue the improbability of the facts and elements regarding the defendant's actions such as dispelling the weapon claim. A defendant's capability to inflict the reported damage or injury is also put to the test as a factual impossibility. The criminal defense attorney will shed the required doubt and reconsiderations if a defendant also acted by accident or was out of their own volition.


In the case of mutual combat, the conflict may have resulted in the grievous injury to one participant; if both parties consented to use similar objects such as a fist. Counsel will argue this defense successfully if evidence is available to the pre-agreed consensus to a mutual fight and it would also help if the victim initially attacked the defendant.


Self-defense can be an appropriate defense when responding to assault with a deadly weapon charge. Self-defense can be claimed where there is a sufficiency of fact to show that the defendant was in danger and had to defend themselves or others. The circumstances must also align with the excessive force applied by the attacker to warrant the use of a weapon by the defendant and the availability of witness testimony pointing to the victim as the instigator of the conflict.

Defense of property:

Defense counsel can provide sufficient proof that the defendant was defending their property during the commission of an assault with a deadly weapon offense. The instantiation of this defense can be provided where there is evidence that the victim(s) tried to access the defendant’s home or vehicle using force, forcing retaliation with a deadly weapon.


There may have been a mishap that warrants the defendant's deadly attack on the victim, such as hitting them with a vehicle. The victim may claim that the defendant did it on purpose to further a criminal motive; for which the defense can counterclaim with the unavailability of evidence pointing to knowledge or motivation.


The defendant’s lawyer can ascertain that the violence laid out on the victim with a deadly weapon due to the defendant being coerced by someone else. This is common in juvenile aggravated assault cases.

False accusations:

If the victim was falsely being accused of an offense for which the defendant was retaliating such as in cases involving infidelity. This tactical defense maneuver is common where a lawyer is seeking to have the charge reduced from a felony to a misdemeanor, and usually involves removing the defendant from the scene of the offense.

Mental illness:

One of the successful defenses; especially in cases where rage is attributed to the commission of an assault with a deadly weapon, is that the defendant was not in their right mind. A psychiatric evaluation usually results from this plea, the affirmation of which may have the defendant released on probation to a mental health facility.

Witness credibility:

This strategic defense seeks to dispel any credibility to the prosecution’s witness testimonies through intense cross-examination. It might even lead to the witnesses own incrimination. Counsel will call into question the witnesses’ ability to recall the correct order of events or whether they were under the influence of a substance. Credibility defenses can also be called when the position of the witness concerning the crime scene can be proven doubtful, relative to their eyesight, distance, and light.

Why Hire a Criminal Defense Attorney?

Law enforcement authorities, in their capacity as federal, state or county employees; are mandated to aid prosecution with all evidence incriminating the defendant. However, the defense attorney can also employ private investigators who are former policemen who now apply their skills to assist the defendant. The private investigators will locate the evidence that corroborates and augments the defendant’s case by re-interviewing or finding key witnesses to aid the defense.

By canvassing the neighborhood, a competent detective may obtain surveillance tapes and other material evidence that can help in the defense. To prepare the cross-examinations, the defense team performs background checks on prosecution witnesses and reexamines police reports. Depending on where the case is to be held, according to jurisdictions or severity of the matter, the criminal lawyer will be familiar with court procedures for the various county, state or federal hearings. Therefore, it is in your best interest to find an attorney that is familiar with the court that your case is out of.

A criminal defense lawyer is more versatile at a defendant’s defense when they have a reliable network in place with the local court. Remember, The prosecution needs to prove the following;

  • An assault was committed on another person;

  • The attack was willfully and knowingly done

  • The assault was intended to cause harm and injury

  • A deadly weapon was used in the attack

  • There was sufficient force applied whose ultimate result would have been fatal

Therefore, you want a defense attorney that will fight make sure all of the previously mentioned factors are proven beyond a reasonable doubt before you are convicted.