Assault with a Deadly Weapon (ADW) – PC 245(a)(1)
When the Defendant is charged with assault with a deadly weapon, the People must prove the following elements of the crime:
- The defendant did an act with a deadly weapon 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 was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
- When the defendant acted, he had the present ability to apply with a deadly weapon and
- The defendant did not act in self-defense in defense of others.
Willful and Voluntary Act
An act is willful when the defendant does it willingly or with purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Application of force means to touch someone 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 touching can be done indirectly by causing an object or someone else to touch the other person. The People are not required to prove that the defendant actually touched someone. The People are not required to prove that the defendant actually intended to use force against someone when the defendant acted. No one needs to actually have been injured by defendant’s act. But if someone was injured, the jury may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault and if so, what kind of assault it was.
Deadly Weapon and Firearm
- 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.
Deadly Weapon Defined
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. Jury Instruction – CalCrim 875.
As used under Penal Code 245(a)(1), a “deadly weapon” is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. The Supreme Court has explained section 245 contemplates two categories of deadly weapons:
Category 1 – Item is considered a deadly weapon – “dirks and blackjacks”
In the first category are objects that are “deadly weapons as a matter of law” such as dirks and blackjacks because “the ordinary use for which they are designed establishes their character as such.
Category 2 – Item used in a deadly manner
Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.” For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon within the meaning of section 245, subdivision (a)(1), when used in a manner capable of producing and likely to produce great bodily injury. (See People v. Brown, 210 Cal. App. 4th 1, 6-8 (2012)
Defenses
- Self Defense
- Defense of Others
- Accident, non-willful conduct
- Lacked present ability (words alone are not enough)
- Voluntary Intoxication is NOT a defense
- Mistaken Identity
- The item was not a deadly weapon or was not used in a manner that would be considered deadly
Punishment – Penal Code 245(a)
(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.
(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.