Assault with a Deadly Weapon Charges in California (Penal Code § 245(a)(1))

Facing Felony Assault Charges in California? Your Defense Starts Here.

If you’ve been accused of assault with a deadly weapon in California, you’re likely facing serious prison time, even if no one was injured. Under Penal Code § 245(a)(1), prosecutors don’t need to prove that you hurt someone, only that you tried to hurt someone using a weapon or force likely to cause great bodily injury.

That’s a broad and dangerous definition, and one that’s often misunderstood or misapplied.

At The Nieves Law Firm, we fight to protect your rights and your future when you’re charged with violent felonies. We understand the difference between a fight, a misunderstanding, and a criminal act. And we know how to explain that difference in court.

What is Assault with a Deadly Weapon Under Penal Code § 245(a)(1)?

Assault with a deadly weapon (ADW) occurs when someone:

• Attempts to apply force to another person,
• With a deadly weapon or instrument other than a firearm, or
• By means of force likely to produce great bodily injury (GBI), and
• The person has the present ability to commit the injury.

This charge does not require actual injury or even physical contact. If prosecutors believe you swung, stabbed, hit, or threatened someone with an object capable of causing serious harm, they can pursue an ADW charge.

What Counts as a “Deadly Weapon” in California?

A deadly weapon is any object, instrument, or weapon that is capable of causing death or serious injury. That includes obvious weapons, but also many everyday objects depending on how they’re used.

Examples include:

• Knives, broken bottles, bats, crowbars
• Hammers, screwdrivers, or tools
• Vehicles used to ram someone
• Even dogs (if trained to attack)

Firearms are covered under subsection (a)(2) of the statute, and they carry distinct penalties. But under (a)(1), any non-firearm deadly weapon may lead to felony or misdemeanor charges.

Penalties for Assault with a Deadly Weapon (PC § 245(a)(1))

PC § 245(a)(1) is a wobbler offense, meaning it can be charged as either a misdemeanor or a felony depending on the circumstances and your criminal history.

If Charged as a Felony:

• 2, 3, or 4 years in California state prison
• Up to $10,000 in fines
• Strike under California’s Three Strikes Law
• Formal probation (in limited cases)

If Charged as a Misdemeanor:

• Up to 1 year in county jail
• Up to $1,000 fine
• Informal probation

The presence of aggravating factors, like prior convictions, the vulnerability of the alleged victim, or the use of extreme force, can increase your sentence significantly.

Special Penalties for Assault Against Peace Officers and Firefighters

If the victim is a peace officer or firefighter performing official duties, and you knew or should have known, they were a protected party, the punishment increases:

• 3, 4, or 5 years in state prison
• And more if a firearm, semiautomatic weapon, or assault weapon is involved (up to 12 years)

The law takes these charges especially seriously, and prosecutors may push hard for maximum penalties.

What Most People Get Wrong About Assault with a Deadly Weapon

“I Didn’t Actually Hurt Anyone.”

You don’t have to. California law focuses on the intent and capability of causing serious harm, not the actual result. Even swinging and missing or brandishing a weapon can be enough to face charges.

“I Didn’t Use a Weapon, So It’s Not a Felony.”

Not true. You can still be charged if you used your hands or feet in a way likely to cause serious injury (e.g., repeated kicks to the head, choking). This is often called ADW by force likely to produce GBI.

“It Was Self-Defense, But I Hit First.”

If you reasonably believed you were about to be attacked, and you responded proportionately, you may have a self-defense claim, even if you struck first. California law allows people to defend themselves preemptively in some cases.

Common Legal Defenses to PC § 245(a)(1)

Our criminal defense team at The Nieves Law Firm has successfully fought ADW charges using the following defenses:

Self-Defense or Defense of Others

You acted reasonably to protect yourself or someone else from immediate harm.

False Accusation or Mistaken Identity

You were not the person who committed the act, or the facts were twisted, especially in bar fights, protests, or domestic disputes.

No Present Ability

You may have made a threat, but if you weren’t in a position to actually carry it out (e.g., restrained, weapon not accessible), it may not meet the legal standard for assault.

Object Was Not a “Deadly Weapon”

Just because something can hurt someone doesn’t mean it legally qualifies as a deadly weapon. The prosecution must prove that the object was used in a way likely to cause death or great bodily harm.

Lack of Intent

If your actions were accidental or reflexive, you may lack the criminal intent required to be guilty of assault.

Real-World Example: When a Bottle Becomes a Felony

You’re at a concert, and a drunk person bumps into you. You raise a beer bottle defensively, but someone accuses you of threatening them with it. Security calls police, and you’re arrested for ADW with a bottle.

You never meant to hurt anyone. But under PC § 245(a)(1), prosecutors may still pursue charges, even if it was just a misunderstanding.

This is why it’s crucial to have a lawyer who can present your side clearly and effectively.

Long-Term Consequences of a Conviction

A conviction under Penal Code § 245(a)(1) doesn’t just carry jail or prison time. It also puts your future at risk:

• A strike under the Three Strikes Law
• Loss of firearm rights
• Trouble finding employment or housing
• Potential immigration consequences
• Public criminal record

That’s why fighting back, with the right legal team, is essential.

FAQs About Assault with a Deadly Weapon Charges

Is PC 245(a)(1) a felony or a misdemeanor?

It’s a wobbler, it can be charged as either depending on the facts of the case and your prior record.

What’s the difference between assault and battery?

• Assault is the attempt to use force or violence.
• Battery is the actual use of force or violence.

You can be charged with assault even if no physical contact occurred.

Can I go to jail for threatening someone with a knife?

Yes. Even if you didn’t stab or touch them, threatening with a weapon in a way that causes fear may be enough for an assault charge.

Can I get probation for assault with a deadly weapon?

It’s possible, especially if there are mitigating factors, no prior record, and the charge is filed as a misdemeanor. But many felony cases result in prison sentences.

What if the weapon was never recovered?

The prosecution can still move forward using witness testimony, surveillance video, or circumstantial evidence, but lack of a weapon may weaken their case.

Arrested or Charged with ADW in California? We Can Help.

Assault with a deadly weapon charges are high-stakes, high-impact cases that demand serious legal attention. At The Nieves Law Firm, we don’t treat you like a case number, we treat you like a person with a life worth protecting.

Our team has successfully handled countless assault cases across California, crafting strong defenses and helping clients avoid devastating outcomes. Whether your charge was exaggerated, misunderstood, or falsely made, we’re here to fight for your freedom and your future.

Call us today to schedule your confidential consultation.