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San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego Assault With Deadly Weapon Criminal Lawyer

Assault With a Deadly Weapon in San Diego

Imagine being in a situation where you are being accused of intending to harm a person based on that person’s statement of what they believed you did. There are always two sides of every story and police officers at times are only concerned with the side that puts you behind bars. It is important that you contact an attorney with experience in handling assault and battery cases in order to put you in the best position to navigate through the criminal justice system. Regardless of the type of assault charges you are facing, your story matters and it is important that the court understands our side before any witness testifies against you.

What qualifies as an assault with a deadly weapon?

This offense occurs under California Penal Code section 245(a)(1) when the willful application of force, coupled with the present ability to carry out a threat of harm is committed using a weapon or force capable of producing great bodily injury or death of another person.


To act willingly; on purpose.

Application of Force:

Any touching of another person in a harmful or offensive manner. Touching can be indirect by causing contact with an object or through another person.

Present Ability to Harm:

Actual intent to use force against that person is not required. Only need to be aware that under the circumstances, the present ability to apply force would likely cause harm to another person.

Another Person:

The person’s body, clothing or something attached to their person.

Deadly Weapon:

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 is likely to cause death or great bodily injury of another person.

Defendant Did Not Act In Self-Defense:

The burden is on the prosecution to prove that the defendant did not act in self-defense. This means that a person in your particular circumstances would not have reasonably acted in self-defense.


Understanding Penal Code 245(a)(1)

In consideration of the seriousness of aggravated assault, California has criminalized it under Penal Code section 245(a)(1). Under this law, “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, or by both the fine and imprisonment.”

What constitutes assault with a deadly weapon?

Basically, to convict someone of PC 245(a)(1), the prosecutor must prove each of the following elements:

  1. The defendant willfully committed an act that by its nature would directly and probably result in the application of force to another person;
  2. The defendant had knowledge of information that would cause a reasonable person to assume that what the defendant was doing would result in force being used against that person;
  3. The defendant had the present ability to apply force with a deadly weapon or force that was likely to produce great bodily injury;
  4. The defendant was not acting in self-defense.


Assault With A Deadly Weapon Can Be Filed As a Misdemeanor or a Felony 

In California, Penal Code 245(a)(1), an assault with a deadly weapon or force likely to produce great bodily injury is considered a wobbler offense. Wobbler offenses are crimes that can be charged as either a misdemeanor or a felony depending on the severity of the offense. The prosecution makes this determination based on the mitigating factors in your case and the presence of aggravating factors for assault with a deadly weapon. These are the aggravating factors to consider when charged with a wobbler assault with a deadly weapon:

  • The type of weapon or instrument used in the assault.

If the weapon used in the assault was a handgun or a rifle, you may receive sentence enhancement of up to 9 years in California state prison. 

The penalty will increase to 12 years in California state prison if the weapon used in the assault was a machine gun or assault weapon.

  • The extent of the victim’s injury.
  • Whether or not the victim was a protected person.

If the victim is a law enforcement officer or a firefighter engaged in that capacity when the assault took place, then you may receive sentence enhancements of up to 12 years in California state prison.

Ultimately, these factors will determine the penalties that you could face if convicted of assault with a deadly weapon. That is why it is imperative that your defense attorney establish the mitigating factors that exist in your case. Maybe there was no weapon? Or perhaps you lacked the ability to cause a physical injury to another? Or what if you were the victim? These are the kind of mitigating factors that your defense attorney will use to negotiate the wobbler assault with a deadly weapon charge and reduce it to a misdemeanor. It is equally important for your defense attorney to address any aggravating factors in your case early on in order to prevent an enhanced sentence if you are convicted.


Great Bodily Injury Encompasses Serious Bodily Injury: PC 245(a)(1) Includes PC 243(d) 

Under California Penal Code section 12022.7 a great bodily injury is any injury that significant, this means a substantial physical injury. A great bodily injury is more than minor or moderate harm. Serious bodily injury under Penal Code section 243(d) is always included by the prosecution because an injury that may not fall under great bodily injury could fall into serious bodily injury. Serious bodily injury is any serious impairment of bodily condition. Anything greater than a serious impairment will be charged as a great bodily injury. The distinction between these two type of injuries are crucial to what the prosecution can prove against you and penalties. A conviction of 245(a)(1) is more severe than a conviction of a PC 243(d) because serious bodily injury is a lesser related injury that greater bodily injury and the courts rarely impose jail when the injury is not considered great bodily injury.

Example of Serious Bodily Injury: Loss of consciousness, disfigurement, any temporary or short-lived impairment or function.

Example of Great Bodily Injury: Loss of limb, staples, any significant curtailment of impairment or function. 


Penalties For Assault With a Deadly Weapon

Misdemeanor Assault With a Deadly Weapon

If a successful reduction from a wobbler to a misdemeanor is achieved these are the penalties that a person could face for assault with a deadly weapon:

  • Be sentenced up to 1 year in county jail;
  • Receive a fine of up to $1,000;
  • Informal probation;
  • Be required to successfully complete an anger management class;
  • Be required to do community service;
  • Be required to pay the victim restitution;
  • Have weapon confiscated. 

Felony Assault With a Deadly Weapon

However, if assault with a deadly weapon wobbles up then a person is charged with a felony, these are the penalties that person could face:

  • Be sentenced up to 4 years in California state prison;
  • Receive a fine up to $10,000;
  • Formal probation;
  • Be required to pay the victim restitution;
  • Have weapon confiscated;
  • Receive a felony strike under California’s Three Strikes law.

A total of three strikes on a person’s criminal record means that person could be sentenced to life in California state prison without parole.


Lesser Included Offenses for Assault with a Deadly Weapon

Naked PC 245(a)(4)

A naked PC 245(a)(4) means that a conviction under this penal code will not carry a strike on your record. A skilled criminal defense attorney will be able to argue that the victim's injury is less than great bodily harm. In other words, the injury suffered by the victim does not amount to the substantial physical injury required under PC 245(a)(1). Ultimately, the victim's injuries in the case is what makes it a strikable offense. At Monder Law Group, our initial position is to bring to light the truth of the victim's injuries and the circumstances surrounding the assault. This can only done by going in detail through the victim's medical records, the police report, and witness statements. Often times it is vital to your defense to have your own medical expert because the prosecution's expert's sole purpose is to confirm the severity of the victim's injury. At Monder Law Group we have a staff of experts at your disposal ready to review your case today!

Assault PC 240

A lesser included offense is an offense that is necessarily included in the greater offense. In California it is impossible to commit an assault with a deadly weapon without the willful application of force, coupled with the present ability to carryout threat of harm, injury or commit a violent injury against another person. In other words, it is necessary to commit an assault under PC 240 to be charged with an assault with a deadly weapon under PC 245(a)(1). Lesser included offenses are very important to your defense strategy. They become very helpful when you are trying to negotiate a plea deal. When should you consider a plea deal? If you are facing felony charges for assault with a deadly weapon and the prosecution has enough to convict you for assault, it may be in your best interest to consider a plea to the lesser included offense of simple assault. Your attorney should only negotiate this deal if it would significantly reduce your exposure at sentencing. That being said, a conviction on a lesser included offense usually does result in shorter sentences and less severe penalties than the greater offense.


When do assault with a deadly weapon charges result in a not guilty verdict?

If you do not think the criminal charges are strong and the evidence is weak against you then the best approach would be to start preparing for trial early in your case. The following are good indicators to proceed to trial:

  • You were falsely accused.
  • It was an accident, you did not intend to harm the other person.
  • There was no weapon or force used that would cause a physical injury to another.
  • You were acting in self-defense or were protecting  another person. 

For a legal self defense claim, you must have held a reasonable belief that you or the person you were protecting were likely to be physically harmed. This means that you do not necessarily need to be the person who is facing the threat of harm, you may act in defense of others. However, the harm must be imminent, it cannot be a future threat of harm, it does not matter that such future danger would be severe or even likely to occur. For a successful self defense claim you must have been justified in using the amount of force you used. This means that the force you used was proportionate to the threatened force you were fighting off. The threat of harm does not have to actually exist, the only thing that matters is that you believed it existed and felt threatened by it. It is important to note that the law does not require you to retreat, you are entitled to stand your ground. At Monder Law Group we will provide you with fight or flight experts that will describe the physiological responses that causes your body to involuntarily react when threatened or placed in harms way.


Your Best Defense against Charges for Assault with a Deadly Weapon in San Diego

When a prosecutor insists on bringing charges under California PC 245(a)(1), regardless if it is a felony or misdemeanor, it is an aggravated assault. You need an attorney who will fight at every stage of the proceedings to minimize the devastating effects of a conviction. If you have been charged with assault with a deadly weapon in California contact experience criminal defense lawyer Vik Monder at 619-405-0063.


Contact San Diego Assault With A Deadly Weapon Criminal Defense Attorney Vik Monder for a FREE Consultation Today At: 619-405-0063 

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063


Contact San Diego's #1 Criminal Attorney Vik Monder for a FREE CONSULTATION:


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