California Penal Code 240/245: Assault with a Deadly Weapon

Legal Definition: Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm (PC 245(a)(1)).

For a person to be convicted of a violation of PC 245(a)(1), the prosecution must prove the following:

1. You did an act with a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle that by its nature would directly and probably result in the application of force to a person;
2. You did that act willfully;
3. When you acted, you were aware of facts that would lead a reasonable person to realize that your act by its nature would directly and probably result in the application of force to someone;
4. When you acted, you had the present ability to apply force likely to produce great bodily injury/with a deadly weapon other than a firearm/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle to a person; AND
5. You did not act in self-defense/in defense of someone else.

Assault Laws (PC 240/PC 245) in California

What does this mean?

A deadly weapon other than a firearm is 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. This could be knives, vehicles, brass knuckles, etc. The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The act of trying to injure another person is sufficient for assault charges.

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. Assault does not require any actual touching. It is simply an attempted battery. If you raise your fist and swing at another person, then only stopping your fist right before their face, then you have committed a Simple Assault.

Penalties

Assault with a Deadly Weapon is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of two, three, or four years. You would be required to serve 50% of that sentence.

In addition to the above, you would be unable to purchase a firearm for 10 years under California Law, and a lifetime if it is a Felony. This would also be considered an Aggravated Felony in Immigration Court, and you would be immediately sent to Deportation Proceedings upon a conviction. You would also receive a Strike on your record, and subject you to the Three Strikes Law, any future felony conviction sentence would be doubled.

Other relevant violations under this section

1. PC 240: Assault

Legal Definition: An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Penalties: This is a misdemeanor-only offense, where if you are convicted you could be sentenced to up to 180 days in County Jail.

2. PC 245(a)(2): Assault with a Firearm

Legal Definition: Any person who commits an assault upon the person of another with a firearm.

Penalties: Assault with a Firearm is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for a minimum of 180 days and up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of two, three, or four years. You would be required to serve 50% of that sentence.

In addition to the above, you would be unable to purchase a firearm for 10 years under California Law, and a lifetime if it is a Felony. This would also be considered an Aggravated Felony in Immigration Court, and you would be immediately sent to Deportation Proceedings upon a conviction. You would also receive a Strike on your record, and subject you to the Three Strikes Law, any future felony conviction sentence would be doubled.

A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.

3. PC 245(a)(3): Assault a machine gun/assault rifle

Legal Definition:  Any person who commits an assault upon the person of another with a machine gun, an assault weapon, or a .50 BMG rifle.

Penalties: Assault with a machine gun or assault rifle is punishable as a felony offense only. If you are convicted, you could face upwards of four, eight, or twelve years in a State Prison. You would be required to serve 50% of that sentence.

In addition to the above, you would be unable to purchase a firearm for 10 years under California Law, and a lifetime if it is a Felony. This would also be considered an Aggravated Felony in Immigration Court, and you would be immediately sent to Deportation Proceedings upon a conviction. You would also receive a Strike on your record, and subject you to the Three Strikes Law, any future felony conviction sentence would be doubled.

A machine gun is any weapon that shoots/is designed to shoot/can readily be restored to shoot automatically more than one shot by a single function of the trigger and without manual reloading. A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge and that is not an assault weapon or a machine gun.

4. PC 245(a)(4): Assault by Means Likely to Produce GBI

Legal Definition: Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury.

Penalties: Assault by means likely is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of two, three, or four years. You would be required to serve 50% of that sentence.

In addition to the above, you would be unable to purchase a firearm for 10 years under California Law, and a lifetime if it is a Felony. This would also be considered an Aggravated Felony in Immigration Court, and you would be immediately sent to Deportation Proceedings upon a conviction. This is the only section under PC 245(a) that is NOT a Strike offense.

Likely to produce great bodily injury means that if your attempt to harm another person was actually successful then more than ordinary harm would have occurred. This means, that if you had completed the act, GBI would likely have occurred.

Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Defense of Other People
4. Violation of your Rights

A common time this charge appears is when a person engages in a fight with another. Now, as shown above, that assault can be easily escalated if you possess a weapon, and even worse if it is a firearm or an assault rifle. The purpose is, by using a weapon, you are escalating a bad situation into an even worse situation. However, if the fight breaks out because you are attempting to defend yourself, or a third person, then that becomes a defense to this charge.

Defense of Other People is a relatively easy concept to master, it simply means, you are maybe one day walking down the street, and see a man beating another man up senseless, so you run up to, and aid the injured man by fighting off his attacker. At that point, even if you had used a weapon, or beat up now the attacker senselessly, you would still not be liable, since you were acting in the defense of another person.
Another defense under this section is the Defense of a Third-party. This is similar to self-defense, except you are “standing in the shoes” of another person, who would have a right to defend themselves. The only difference, is you are standing in the way to defend that third party under the same criteria listed above.

Call Today

An assault charge can be devastating to you or your loved one’s life. Many times, if a fight occurred, you could suffer additional charges such as Criminal Threats, in addition to what you did to cause the assault. You are facing many years in prison, in addition to the stiff fines and fees, as well as losing your 2nd Amendment Rights. You need an experienced attorney to fight for you or your loved one. Our PC 240 Ontario attorney has successfully defended numerous cases involving Assault crimes under PC 240. The initial consultation is free and we are available to answer your questions 24/7. Call the Inland Empire Criminal Defense today at 909-939-7126! Located in Ontario, CA.