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San Diego Criminal Lawyer

Assault with a Deadly Weapon

Definitions, Burden of Proof, and Loopholes and Technicalities: Explained by an Award Winning San Diego Criminal Lawyer

Definition of Assault with a Deadly Weapon (ADW)

California Penal Code 245 PC

Alternative A - Weapon Used. 

Assault with a deadly weapon is defined as an assault, with either a "deadly weapon" or with an amount or means of force likely to produce great bodily injury.  

Alternative B - Force Without a Weapon

The Second Alternative is the subject of legend in the mixed martial arts and boxing communities. A person does not have to "register" their hands as weapons, but judges have ruled that a person who has suficient hand to hand combat training, may be charged under this theory of assault with a deadly weapon.  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. 

Examples of behavior that could lead to an assault charge are:

* In a fit of road rage, stopping another driver and approaching their car menacingly with a baseball bat (even if you only intend to hit their car, not the individual)

* During a domestic dispute, a person attempts to hit another person with a hammer. 

* A person instructing their dog to attack an annoying neighbor (even jokingly giving the command to attack to a large powerful dog). 

* A Mixed Martial Arts (MMA) trainer who threatens to "knock you out with one punch," and pretends to throw a punch to "psych" a guy out. 

Punishment for an assault charge:

The punishment for assault with a deadly weapon (ADW) is a "wobbler" and may be charged as either a misdemeanor or a felony. The nature of your charge and potential punishment is based on several factors, including your criminal history, and the facts of the circumstances surrounding the charge, including what type of weapon was used and the individual victim and whether they sustained any injury. 

To be found guilty of the crime of assault with a deadly weapon, the government must prove: 

Alternative A—Force with Weapon

1. The defendant 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;

Alternative B—Force without Weapon

1. The defendant did an act that by its nature would directly and probably result in the application of force to a person, 

2. The force used was likely to produce great bodily injury;

3. The defendant did that act willfully;

4. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone;

5. When the defendant acted, (he/she) 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.



Clarifying Instructions - Important Loopholes and Technicalities

* Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

* 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 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 (he/she) acted.

* No one needs to actually have been injured by the defendant’s act. But if someone was injured, you 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].

* Voluntary intoxication is not a defense to assault.



Great bodily injury

Great bodily injury means significant or substantial physical injury.It is an injury that is greater than minor or moderate harm.


Deadly Weapon

A deadly weapon other than a firearm is any object that is inherently deadly or can be capable of causing death or great bodily injury.



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.



A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.


Machine Gun

A machine gun is any weapon that (shoots/is designed to shoot/ [or] can readily be restored to shoot) automatically more than one shot by a single function of the trigger and without manual reloading.


An assault weapon includes weapons listed in Pen. Code, § 30510 or Pen. Code, § 30515.



What is an Assault Weapon? 

The definition is a common question for people in California because the legislature has determined that certain modifications require a weapon to be registered as an assault weapon, including threading a barrel and a forward grip.  For a complete list of assault weapons, and modifications/attributes that make a weapon an assault weapon, CLICK HERE.