Assault with a deadly weapon (Penal Code section 245(a)) is essentially an elevated and aggravated form of battery (Penal Code section 242(a)). Specifically, it must be proven that:
- the defendant used some type of deadly weapon, or
- the defendant willfully committed an act that would directly and result in the application of force to a person, and
- the force used was likely to produce great bodily harm (“GBI”), and
- the defendant had the present ability apply the force
To clarify the above elements of the offense, an ADW is committed when the defendant uses a deadly weapon or applies some physical force (punch, hit, kick, etc.) to the victim. The actual force used against the victim, however, must be enough “to produce great bodily harm” (significant or substantial), not just minor or moderate harm. However, an actual injury to the victim is not required. If the defendant attempts to hit the victim, but “misses” the victim, the “attempt” itself is sufficient. What matters is that he/she committed the act on purpose, even if he/she did not intend to hurt the victim or even to break the law.
For example, a “bar patron throws a beer bottle in the direction of the victim, not intending to hit the victim, but the bottle does, in fact, strike the victim anyway, causing a large laceration to the head”. In this case, an ADW is likely to be filed because the defendant threw the bottle in the vicinity of the victim, the object thrown was a beer bottle and did, in fact, cause a significant injury (it is of no consequence even if the victim had just suffered a small cut because the bottle is capable of producing great bodily injury!). Also, even though the beer bottle has a functional purpose and is not normally used as a weapon, its weight and design are enough to constitute a deadly weapon (other common examples: closed fists, baseball bat, scissors, rocks, knives, etc.).
Let’s consider this twist on the above hypothetical: instead of throwing a beer bottle at the victim, the defendant “threw a wadded-up paper ball at the victim, but missed hitting him”. This act would not constitute an offense of ADW because the paper ball cannot be reasonably construed as a deadly weapon AND is certainly not likely to produce great bodily harm! Furthermore, this act would not even constitute a battery charge because the paper ball “missed” hitting the victim (a battery requires “actual touching”, even if slight).
Finally, consider a situation where the “bar patron forcefully pushes the victim with both hands, causing the victim to fall,hitting his head on the ground, suffering a serious concussion”. In this case, the act is clearly wilful and given the forceful nature of the push, it is reasonable the victim would fall and hit his head. Moreover, the concussion is a type of GBI. This defendant would face a felony ADW charge.
If, however, in this hypo, the “victim had merely fallen, suffered no injury and gotten right back up on his feet”, then the criminal charge might be a misdemeanor ADW or even a simple battery. This is because the prosecutor may consider the actual injury suffered by the victim in determining whether the element of “likely to produce great bodily injury” is actually provable to a jury. And since the only injury suffered by the victim “was his pride”, a misdemeanor may be appropriate!
The punishments for ADW offenses are substantial. For misdemeanor convictions, the defendant can be sentenced to a period of years of informal probation (usually three years), up to one-year custody in county jail, attendance at anger management classes, fines/fees and restitution to the victim (if any). The prosecutor will also automatically request the judge to impose upon the defendant a “stay away order” from the victim, especially if they are strangers. In appropriate cases, a criminal protective order may be imposed upon the defendant.
For felony convictions, the defendant may either receive a term of formal probation (in unusual cases only), up to one year of custody in county jail, attendance at anger management classes, fines/fees and restitution to the victim (if any). If probation is denied, then the defendant is facing confinement in state prison for 2 years, 3 years, or 4 years. The prosecutor will also automatically request the judge to impose upon the defendant a criminal protective order.
In ADW cases where the victim is a law enforcement officer or firefighter (and the defendant knew or should’ve known the victim was such), the charge can only be filed as a felony. The punishment is 3 years, 4 years, or 5 years in state prison. If a firearm is used in the offense, the punishment increases to 4 years, 6 years, or 8 years in state prison.
Additionally, any felony or misdemeanor ADW conviction will result in a lifetime ban on owning or possessing a firearm. Period. Moreover, any firearms that the defendant owns or has in his/her possession will have to be given up or confiscated.
The defenses available to counter an ADW offense include the same types of defenses available to a client accused of any violence-related offense (see Defenses in Battery). However, additional attention must be paid to the object that constitutes the “deadly weapon”, or the physical force that is alleged to produce GBI. Perhaps there are inherent characteristics of either of these elements that lessen their “sinisterness”.
As in any case involving violence, there is much at stake. In addition to the criminal penalties, there are potential employment and immigration consequences, and not least of which, the loss of a person’s reputation. Given all of the ramifications of an ADW charge, it is extremely helpful to speak with an attorney to be well and properly advised, to make informed and intelligent decisions, and to develop an effective defense strategy.