Assault with a deadly weapon in San Jose is a crime that can lead to severe penalties like fines and prison or jail time. Moreover, it can have an undesirable effect on your future, like eliminating public assistance, educational, employment, and housing opportunities. Fortunately, these criminal charges don't have to lead to lasting repercussions and a conviction. The prosecutor should prove that you committed all facts of the crime beyond any reasonable doubt. It is a difficult burden to satisfy, and uncertainty could result in a case reduction or dismissal. As a result, it is wise to contact the California Criminal Lawyer Group. We can craft the most effective defense for your case.

Defining Assault with a Deadly Weapon

According to California Penal Section 245a1 PC, assault with a deadly weapon occurs when you assault another person with either force that most likely will result in great bodily injury or a lethal weapon.

To be found guilty of aggravated assault, the prosecution should prove the below facts of the crime beyond any reasonable doubt:

  • You engaged in conduct that would most likely lead to the use of force to another individual
  • You engaged in the conduct with either force which would most likely result in great bodily injury or a deadly weapon
  • You engaged in the conduct willfully
  • When you engaged in the conduct, you knew that the fact could result in a reasonable individual to think that the conduct could directly and possibly lead to the application of force to the individual
  • When you engaged in the conduct, you had the present capacity to use force that will cause great bodily injury or use a lethal weapon

It is worth noting that the alleged victim doesn't have to be injured to be charged with the offense. The emphasis is whether your conduct could have caused the application of force. It's not whether force was used.

Definition of Key Legal Terms and Phrases

To understand the legal meaning of aggravated assault, here is an overview of legal terms.

Application of Force

Under ADW law, the application of force is an offensive or harmful touching. Even the least touching done in an offensive or rude way counts. Additionally, you can commit the offense directly by touching the victim with an object.

Also, it's not a must that you succeed in using force to the alleged victim. All is needed is that you did an action that could lead to force being applied to the victim.

Deadly Weapon

As far as this code is concerned, a deadly weapon is a weapon or object that can cause great bodily injury or death. The definition above includes common deadly weapons like knives and guns.

However, any substance can be classified as a deadly weapon if you used it in a manner that can inflict a significant injury on a person or kill them. These objects include:

  • A motor vehicle in an attempt to run a person down
  • A dog which can attack a person on command
  • A bottle
  • An unloaded gun when used to hit or club a person
  • A pen that is used to stab a person

Great Bodily Injury

Great bodily injury is a substantial or significant physical injury. It is greater than a minor injury. It can be a dog bite, black eyes, lacerations, gunshot wounds, or broken bones.


Under ADW law, a defendant acts willfully if they do something on purpose, willingly, or deliberately. You don't have to plan to violate the law, gain an advantage, or injure a person.

Present Ability to Apply Force

To be convicted of ADW, you should have had the present capacity to use force with the firearm.

That means you aren't guilty of ADW if you pointed or waved an unloaded gun at a person. In this scenario, you wouldn't have had the capacity to cause violence using the gun.

However, it is an offense if you use the firearm as a bludgeon or club to hit or attempt to hit a person with the firearm, instead of firing it.

What Is the Difference Between Aggravated Battery and Aggravated Assault?

Most people believe that aggravated assault and aggravated battery are interchangeable offenses since they are often charged together. However, California classifies them as two different offenses. Both of these offenses carry severe penalties. Therefore, if charged with either or both crimes, it is essential to beat the charge and ensure you get them dismissed or reduced.

Per California Penal Code 245a1 PC, aggravated assault is an attempt to cause somebody else severe harm. To be found guilty of the offense, no physical contact needs to be made between you and the victim. Instead, the prosecutor should prove that you threatened the victim.

Aggravated battery, on the other hand, is the illegal and willful use of force or violence on another person. A battery is well-thought-out to be aggravated battery depending on whether the alleged victim sustained a serious bodily hurt or a bodily injury. A serious bodily injury is a substantial or significant physical injury. The jury settles the decision on a case-by-case basis.

How a Specific Aggravated Assault or Aggravated Battery Charge is Determined?

When you commit an offense, the exact charge will depend on:

  • The weapon used
  • Whether the alleged victim was injured and to what degree
  • Whether the alleged victim is a member of the protected category

Your criminal history will also be put into consideration.

It is essential to seek legal representation immediately if charged with aggravated assault or aggravated battery. Don't assume that you will be convicted. You could have responded in self-defense, the accusations could be a fabrication, or you might have been misidentified.

Penalties and Consequences Attracted by Aggravated Assault

An aggravated assault charge is a California wobbler, provided the weapon used wasn't a firearm. That means the prosecutor can choose to charge you with either a California felony or a misdemeanor. The decision to file a misdemeanor or felony depends on:

  • The seriousness of the injury suffered
  • Your criminal history
  • The stronger your defense, the higher the ability and confidence to negotiate better terms of an agreement between you and the prosecution
  • The procedural legal issues in proving the case against you. For instance, if the police cannot locate the alleged victim or the victim doesn't want to testify, the prosecutor could reduce the penalties because they are not sure they can secure a not innocent verdict at trial.

A misdemeanor carries:

  • One thousand dollars in fines
  • A maximum of a year in jail
  • Summary (misdemeanor) probation

A felony, on the other hand, attracts:

  • Up to ten thousand dollars in fines
  • Formal (felony) probation
  • A four (4)-year sentence in state prison

It is worth noting that the penalties above will change in case the crime is committed against a firefighter or law enforcer or involves a firearm.

Aggravated Assault with a Firearm

In case the crime was committed using a normal firearm, the crime is still a California wobbler, and penalties are as highlighted above. However, a misdemeanor conviction will attract at least six months in jail.

A conviction would become an automatic felony if a machine gun, .50 BMG rifle, assault weapon, or semiautomatic gun was used in the commission of the offense. A felony is punishable by a maximum twelve-year prison sentence.

Aggravated Assault against a Law Enforcer or Firefighter

ADW is considered an automatic felony in case:

  • The victim is firefighter or peace officer, and
  • You were aware or should have been aware of this

The offense carries a maximum of five (5) years in prison. And if the offense was committed using a firearm, the sentence becomes twelve years.

Aggravated Assault Using a Car

If found guilty of ADW using a car, you will lose your driver's license for life. And if you lose the driving privileges in California, as a result of interstate driver's license compact, you will not be in a position to obtain a license in any other member state.

It is a devastating consequence that will affect most aspects of your life. Therefore, it is essential to seek representation from a skilled aggravated assault lawyer.

Yow Will Loss Your Firearm

Another severe penalty attracted by ADW is the loss of your gun. The firearm used in the commission of the crime will be deemed as a nuisance. That means the government will seize and destroy it.

Additionally, if convicted of a felony, per California PC 29800 (felon with a firearm), you will not be permitted to own or buy a firearm after completing the sentence.

Three Strike Law

California Penal Section 245a1 is a strike per Three Strikes law provided one of the statements below is true:

  • You committed the crime using a firearm, or
  • You committed aggravated assault against a police officer or firefighter

If you have a strike on your criminal record and the aggravated assault offense is charged as a felony, you face double the sentence for the second crime.

If you have three strikes where at least one is a strike resulting from aggravated assault, you face a twenty-five year to life imprisonment in California state prison without parole.

Aggravated Assault Conviction and Immigration Consequences

An ADW conviction could have negative immigration repercussions.

Like all crimes, ADW is described in general terms. As a result, it becomes an issue of legal argument (Does the ADW conviction handed in a state court match the federal laws' description of the deportability grounds?). To answer this best, it involves putting the following three concerns into consideration. They include:

  • Is the offense a crime of moral turpitude?
  • Is the offense an aggravated felony?
  • Is the offense one of those listed by name on the deportability grounds?

So How Would an ADW Conviction be Analyzed According to the Three Criteria?

Aggravated assault involves a deliberate act which creates apprehension in somebody else of an imminent and offensive or harmful contact. Nevertheless, different states have different meanings of the offense.

As far as aggravated assault is concerned, an offense of moral turpitude varies from one case to another. For instance, a conviction may be an offense of moral turpitude in one state. Also, an immigrant in a different state might be treated differently because the state's statute is written differently.

The law also goes ahead to state that felony ADW is an offense of violence and hence an aggravated felony.

It is advisable to consult your defense counsel for a comprehensive analysis of an aggravated assault on your criminal record and possible vulnerability to deportation.

Various Ways You can Win When You are Charged with California Penal Section 245a1 PC

The following are the most common defenses used by experienced criminal defense attorneys to fight ADW charges:

No Deadly Weapon was Used

You can only be found guilty of California Penal Section 245a1 PC if you committed an aggravated assault. That means it's a legal defense for you to prove that even if you committed an assault, you didn't use a lethal weapon.

Your attorney can prove this defense by outlining specific facts to demonstrate that the substance used wasn't deadly. For instance, you threw a water balloon at a person.

You Didn't Act Willfully

Although it isn't necessary to inflict an injury to be found guilty of aggravated assault, it is hard to establish the intent element if you did not cause physical harm.

Moreover, there are several reasons why your conduct wasn't willful or committed deliberately. For instance, an assailant could have threatened to injure you or your loved one if you fail to act the way you did.

Also, your conduct could have been accidental or misunderstood by the victim.

False Accusations

Human beings get accused of offenses that didn't commit every single day. Sometimes it could be as a result of a witness making a mistake when asked by the police to identify the perpetrator.

False allegations are also driven by greed, jealousy, or maybe a person is annoyed with you and wants to seek vengeance.

The Defendant Acted in Defense of Self

Your defense attorney could also claim that you acted in defense of self. For this defense to work, you should have:

  • Thought that you were in forthcoming danger
  • Thought that force was essential to prevent that danger
  • Used the right amount of force in defense

For instance, Martha is going home after work. A man jumps into the lane and claims that he will make her feel good. As a result, Martha picks a stone and hits the man. In this scenario, Martha committed ADW, but she isn't guilty because she acted in her defense. She thought the man wanted to rape her. She also used the right amount of force.

Attacking the Credibility of the Alleged Victim and Witnesses

Another effective method your defense attorney could use to beat the ADW charges is attacking the credibility of the prosecution witness. It can be achieved by questioning the witness's ability to recall the events that result in the commission of the offense.

The attorney can also challenge the witness's memory of events. That way, the attorney understands how well the witness remembers the case's circumstances. Additionally, your defense lawyer can question the sobriety level of the witness and whether they had taken any drugs at the time of the incident.

Related Crimes

Discussed below are three (3) offenses that are charged together with or alongside ADW in California. They include:

Penal Code Section 399 (Failing to Control a Dangerous Animal)

Under PC 399, it is illegal to fail to control an unsafe animal. As the dangerous animal's owner, you commit a crime when:

  • You do not use reasonable care in keeping the animal or willfully allow your animal to run free
  • Consequently, somebody sustains a severe bodily injury or is killed

You can commit ADW with a dangerous animal if:

  • Your animal can attack on command, and
  • You give a call to attack.

Assault on a Public Official

You violate Penal Code Section 217.1 PC when:

  • You commit an assault
  • Against a public official
  • Either in vengeance or to stop the public officer from performing their official duties.

Different from aggravated assault, you break PC 217.1 even if you didn't use a lethal weapon when committing the assault.

Brandishing a Firearm or Weapon

You break Penal Code Section 417 PC when you

  • Show or draw a firearm or deadly weapon, or
  • Use a lethal weapon when fighting

It is worth noting that this offense doesn't need evidence of an assault.

Assault with a Deadly Weapon Conviction Expungement

Per PC 1203.4, an expungement releases you from all penalties that come with a conviction. One of the benefits is the fact that you don't have to disclose the conviction to potential employers. The law bans employers from asking job applicants about their criminal record until there is a conditional offer of employment.

It is possible to seal your ADW conviction in California if:

Probation was granted

Under Penal Code 1203.4 PC, you qualify for expungement if probation was granted following your conviction. The 1203.4 motion will permit you to withdraw the guilty plea (replaced by an innocent plea) and have the case dismissed.

It is worth noting that you are not eligible for expungement if you are sentenced in California state prison.

You're Still on Probation

If you're still on probation, you can file a 1203.4 motion with the court to terminate the probation early. If granted, you can then file for an expungement.

In case, the judge denies the 1203.4 motion, you should wait until your probation expires and try to expunge the case again.

Charged with a California Misdemeanor or Felony

If convicted of a California felony, you may bring a motion to reduce the felony to a California misdemeanor under Penal Code Section 17b PC.

An aggravated assault conviction can affect different aspects of your life. Therefore, it is essential to contact an attorney who can assist you clean your criminal record.

Frequently Asked Questions

Can a Minor be Charged with Aggravated Assault?

Any person below eighteen years of age is deemed a minor in the eyes of the Californian law. However, minors aren't exempted from getting into legal trouble. Children often find themselves in trouble with the law by being involved in physical altercations.

Your child will be tried as an adult if they are above fourteen years of age, and they commit a severe offense like an assault with a deadly weapon. That means the child will face a potential adult sentence.

It's also a strike under the Three Strikes Law and could result in life imprisonment after a third-time conviction. As a result, it is essential to consult an experienced attorney who will help you understand the charges and penalties your child is facing.

What are the Different Probation Terms and Conditions Associated with ADW?

When placed on probation, the judge will impose probation terms and conditions that apply to the offense in question. They include:

  • Visiting the probation officer as many times as required by the probation terms
  • Paying restitution to compensate the alleged victim
  • Prohibiting you from possession or owning a deadly weapon
  • Breaking no other law
  • Performing community service

If you violate any of the above terms, the judge will enhance your penalties.

Is Intoxication a Defense to Aggravated Assault?

No. It isn't a defense if a defendant took alcohol and was drunk during the commission of the crime. However, a defense lawyer can assert other legal defenses. If successful, the charge could be reduced or dismissed altogether.

Finding a Seasoned San Jose Criminal Defense Lawyer Near Me

Aggravated assault is one of the most common violent offenses in San Jose. You could be charged with Penal Code section 245a1 PC for not just knowingly, recklessly, or intentionally making an aggressive physical contact or injuring somebody else but also for threatening another person with imminent bodily injury. Penal Code 245a1 PC laws are complicated, and only a competent criminal defense lawyer will have the required experience and knowledge to prevent severe penalties that will affect your future and freedom. At California Criminal Lawyer Group, we have worked with thousands of clients, defending their rights and ensuring that they get the best possible result. To schedule your initial consultation, call us at 408-622-0204.