Assault With a Deadly Weapon – assault upon the person of another by any means of force likely to produce great bodily injury – Penal Code section 245(a)(4).
Assault with a deadly weapon is a criminal act or crime in California under Penal Code section 245(a)(4) and is committed when a person uses some type of weapon (car, knife, lamp, stapler, or anything else, including ones fists – see below) against another, and the force used could reasonably lead to great bodily injury or death, and the person using the force knew or should have known that force could cause such harm. 
This crime does not even require a person to have been injured, just the possibility of injury is being punished in this these circumstances.
Assault with a Deadly Weapon can be charged as a felony or a misdemeanor and is often referred to as a “wobbler.”
If for a felony, it is punishable by 2, 3, or 4 years in prison; depending on the severity of the crime.
If the conviction is for a misdemeanor, the crime is punishable by between six months to 1 year in county jail.
How does the prosecutor prove the crime of assault with a deadly weapon?
To prove that the defendant is guilty of this crime, the prosecutor, also known at the DA or district attorney, must prove that:

  • The defendant used a deadly weapon other than a firearm, a firearm, a semiautomatic firearm, a machine gun, an assault weapon, a .50 BMG rifle, or even ones fists that would likely result in an application of force to a person;
  • The deadly weapon was used intentionally;
  • The defendant was aware that the way he or she was using the deadly weapon in a manner that could lead to an application of force upon another person; and
  • When the defendant acted he or she had the ability to use that weapon in a manner that could or would lead to an application of force likely to cause great bodily injury or death.

Definition of a Deadly Weapon
The legal definition is – “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 means that anything can be a deadly weapon; your fist, your foot, a lamp, a table, a pitchfork, a screwdriver, a hammer, a vehicle or car, a truck, a block of cement, literally anything that is capable of causing death or great bodily injury.
Often in cases the attorneys and the judge look to the injury that was caused, but with this crime, you can be convicted even if there is no injury because the law seeks to prevent one person from even exposing another to great bodily injury or death. Look at the examples below to find out more.

Examples of Assault with a Deadly Weapon
Stacy is extremely upset with David for breaking up with her. She drives by his house at different times of the day to see if he is dating anybody else. One day, she drives by where he lives and sees him kissing another woman and absolutely loses it and drives her vehicle directly at the lovers and at the last minute realizes what she is doing and turns her steering wheel hard to the right and narrowly misses them.
Stacy would likely be charged with assault with a deadly weapon even though nobody was physically hurt because a reasonable person in David’s and his new girlfriend’s place would have believed they were about to die and reasonably so.
Bruce lives in his parent’s granny unit. He has lived there since moving out of the main house when he was 18 years old. Because he was not going to college, his parents required he work and pay some rent so that he learned responsibility. Initially, he did pay his rent on time, but over the years he fell farther and farther behind until his parents told him, pay up or move out.
Bruce could handle this and when his dad came out to talk to him about it, Bruce in a rage picked up a lamp and swung it at his dad’s head, hitting him and causing a cut or laceration that required stitches. This is assault with a deadly weapon because, although not required, there was an injury and the injury was caused to a part of the body that is very vulnerable, the head.
Case law analyzes this by looking at the potential for harm or what would a reasonable person believe could have happened. Here, a smash to the head with a lamp could easily cause a brain injury that could lead to permanent harm or dead.
Edmond is a professional boxer who has been boxing all his life. He started boxing when he was three years old when his da put gloves on him and “showed him the ropes.” Because of this, Edmond knew exactly how to hit a person to cause permanent injury or even death.
ON a Saturday night not too long ago, he saw his girlfriend talking to another man. Edmond walked up to the guy, who knew that Edmond was a professional boxer, and, for the first time in a very long time, telegraphed his punch!
Because of that, the guy his girlfriend was talking to ducked just in time and ran away. Edmond will likely be charged with assault with a deadly weapon – his fists. Because Edmond is capable of causing great bodily injury or death with his fists and because the guy his girlfriend was talking to knew that, it was reasonable that he thought he might die or be caused permanent injury if Edmonds punch connected.
This would be like being attacked by Mike Tyson! Most people would think they are about to die suffer great injury.
Legal Defenses:
There are many defenses to the allegation of assault with a deadly weapon:
Self-Defense – If you reasonably believe that a person is about to hit you or cause you an injury without legal justification, you have a right to defend yourself using reasonable force.
For instance, if you believe a gang of people is about to attack you, you have a right to get in your car and drive directly at them to scare them off, as long as you don’t run anybody over or hit anyone. If you think you are about to get killed or someone is going to cause you great bodily injury, as long as it is reasonable for you to think so, you can use deadly force to prevent that from happening, including using your car to kill that person before they do.
Defense of Others – everything mentioned in the section just above regarding self-defense applies in cases where you are reasonably defending another from great unlawful attack or injury. This means that if, for instance, you see your best friend at a bar about to get unlawfully attacked, you can use reasonable force to help him.
As mentioned, reasonable force is force that is reasonable in light of the type of attack. Simply put, if someone is attacking you with fists, you can use your fists to defend, but not a gun. If a person is using a deadly force, you can use whatever you need to protect yourself!
Mistake of Fact – If you truly and reasonably believed that someone was about to kill you or harm you, it is a defense that you used reasonable force in light of that belief to defend yourself, even though you were mistaken. For instance, suppose a person named Forest is walking down an alley and sees a car in front of him that he believes belongs to his sworn enemy at the other end of the ally.
Next, he hears the engine being revved as if a threat and then the person driving that car steps on the gas driving directly at Forest. Forest has no where to run to and believes he is about to get run over and die. He pulls out a 9 mm gun and fires directly at the windshield where the driver would sit, striking that person directly between the eyes and killing him instantly.
Turns out, the driver of that car was simply trying out the power on his new Mustang and had no idea who Forest was or even saw him. Forest has a good mistake of fact defense here because he honestly believed the person driving the car was an enemy and was trying to kill him and it was reasonable to believe so. Using a firearm against an assault by a Mustang is reasonable.
The weapon used was not deadly – For this crime to stick, one must have used some object, whether it is a lamp, a car, a fist or something else in such a manner as to make it deadly or likely to cause great bodily injury or death. If the object used us not such a thing, then it is a defense. For example, say co-workers were arguing and one of the co-workers got angry and snapped a towel at his co-worker and intended it hit him in the shoulder, but instead hits him in the eye.
A reasonable person would not believe that a towel could cause great bodily injury, much less death. Because of that, it would likely be found that a deadly weapon was not used. Another example would be if during an argument between two room-mates, one of them uses a lamp to swing at the legs of the other.
No reasonable person would believe that this could cause great bodily injury and therefore, using a lamp in that manner is not using it as a deadly weapon.
Involuntary Intoxication – It is not a crime if you do something that is a directly and causally related act because you are involuntarily intoxicated. For instance, if a person slips you a mickey and for the next hour you have a terrible response to the Mickey, instead of becoming pliant you become a raging maniac, that is not your fault because you did not intentionally take that drug so anything that happens as a result is likely not legally your fault.
Insanity – if you do not know what you are doing is a crime because you are insane, then you are not guilty of the crime. To have this defense, you must not know the nature of the crime or that what your are doing is wrong.
For instance, if you had a schizophrenic episode thinking that another person was about to stab you with a knife, you would not be guilty of assault with a deadly weapon because you pulled out your gun and shot that person. The reason for this is that you do not have criminal intent. You truly believed that person was going to kill you.
When A DUI Results in A Death
Being Represented by a Knowledgeable Attorney is
If you are charged with this crime it is crucial that you retain the services of a knowledgeable attorney as soon as possible. Extortion is a serious crime that involves elements that can lead to prison, deportation, or both, and you need competent representation and advice.
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Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.
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Michael A. Fiumara

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