Under California Penal Code §245, aggravated assault, often called “assault with a deadly weapon” (ADW), is one of the most serious violent offenses in the state. The crime involves an assault committed using a deadly weapon or by means likely to cause great bodily injury. Even if no one is injured, prosecutors may still charge the offense as a felony if a weapon, significant force, or certain aggravating factors are involved.

Because California classifies aggravated assault as a “wobbler,” it can be charged as either a misdemeanor or felony, depending on the facts of the case, the extent of the alleged injuries, and the defendant’s criminal history.

San Diego Aggravated Assault Defense Attorney

Assault cases are often built on incomplete information and emotional testimony. Even a simple argument can escalate into an arrest when police arrive and make assumptions based on statements from only one side. If you have been accused of aggravated assault or assault with a deadly weapon, it is critical to contact a defense attorney immediately to protect your rights and your freedom.

The police and prosecutors will try to pressure you into admitting that you used or intended to use force, but an attorney can intervene early to ensure that law enforcement respects your constitutional rights, helps you avoid self-incrimination, and prevents your words from being used against you.

Attorney Michael Cindrich has decades of experience defending individuals in California criminal courts. He has successfully represented clients accused of serious felonies, including violent crimes, and understands how to challenge exaggerated allegations, conflicting witness statements, and the prosecution’s theory of intent.

The Law Offices of Michael E. Cindrich serve clients across San Diego County, including Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, and San Diego.

Contact the firm today for a free, confidential consultation at (619) 262-2500.

Overview of Aggravated Assault Charges in San Diego

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Definition of Aggravated Assault (Penal Code §245 PC)

Under California Penal Code §245(a)(1)–(4), a person commits aggravated assault (also called assault with a deadly weapon) when they:

  1. Commit an assault upon another person, and
  2. Do so with a deadly weapon or instrument, by means of force likely to produce great bodily injury, or with a firearm.

Aggravated assault does not require physical contact or injury. The prosecution only needs to prove that the defendant took a direct step toward applying force that was likely to result in serious harm.

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Common Examples of What Constitutes Aggravated Assault

  • Pointing or swinging a knife, bat, or blunt object at another person.
  • Firing or brandishing a firearm during a confrontation.
  • Striking or attempting to strike someone with a vehicle.
  • Using excessive force resulting in serious injury during a fight.
  • Attacking another person while using an object as a weapon (e.g., bottle, wrench, or heavy tool).

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Penalties for Aggravated Assault in California

Because aggravated assault is a “wobbler”, it can be charged as either a misdemeanor or a felony. The penalties depend on the weapon used, the degree of injury, and the victim’s status.

Misdemeanor Aggravated Assault

  • Up to 1 year in county jail,
  • Fines up to $10,000, and/or
  • Summary probation with possible anger management, community service, or restitution.

Felony Aggravated Assault

  • 2, 3, or 4 years in state prison,
  • Fines up to $10,000, and/or
  • Formal probation or parole supervision.

Enhanced Penalties

  • Use of a Firearm: If a gun is used, penalties increase to up to 12 years in prison depending on the weapon (e.g., pistol vs. assault weapon).
  • Assault on a Police Officer, Firefighter, or Other Protected Person: Enhanced sentencing under §245(d), with mandatory state prison terms.
  • Great Bodily Injury (GBI) Enhancement: Under Penal Code §12022.7, an additional 3 to 6 years may be added if the victim suffers serious injury.
  • Strike Offense: Felony aggravated assault with a deadly weapon or GBI enhancement counts as a “strike” under California’s Three Strikes Law, affecting future sentencing.

Possible Consequences Beyond Jail or Prison

A conviction for aggravated assault can have lasting consequences, including:

  • A permanent criminal record that cannot easily be expunged.
  • Loss of firearm ownership rights under both state and federal law.
  • Employment and professional licensing restrictions, particularly in law enforcement, healthcare, or education.
  • Immigration consequences, including deportation or denial of naturalization for non-citizens.
  • Negative effects on child custody and family law matters.

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Key Elements a Jury Considers in Aggravated Assault Cases

When evaluating an aggravated assault charge under Penal Code §245, jurors must carefully examine several legal and factual elements based on CALCRIM 875 (Assault with a Deadly Weapon or by Means of Force Likely to Produce Great Bodily Injury).

Proof of Intent to Apply Force – Jurors must determine whether the prosecution has proven beyond a reasonable doubt that the defendant intended to commit an act likely to result in force being applied to another person. The law does not require intent to cause injury, only intent to act in a way that would likely lead to the application of force. Accidental movements or reflexive actions cannot satisfy this element.

Apparent Present Ability to Apply Force – The jury considers whether the defendant had the apparent present ability to carry out the act, meaning the defendant was capable of using force at that moment. For example, pointing an unloaded gun may or may not qualify, depending on whether the victim reasonably believed it to be loaded.

Use of a Deadly Weapon or Force Likely to Cause Great Bodily Injury – Jurors evaluate whether the instrument used qualifies as a “deadly weapon” or whether the force employed was capable of producing significant or substantial injury. A deadly weapon is any object used in a manner likely to cause death or serious harm, including firearms, knives, blunt objects, or even vehicles.

Victim’s Reasonable Fear and Circumstances – Jurors assess whether the victim’s fear of immediate harm was reasonable under the circumstances. Factors include distance, tone of voice, body language, and any prior interactions between the parties.

Credibility of Witnesses and Corroboration – Because aggravated assault cases often depend on eyewitness accounts, jurors must weigh the reliability of each witness. Inconsistent statements, biased testimony, or a lack of physical evidence (such as surveillance footage or medical records) can significantly affect the verdict.

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Defenses to Aggravated Assault Charges

A skilled defense attorney can challenge both the facts and the law behind an aggravated assault charge. Common defenses include:

  • Self-Defense or Defense of Others – The defendant acted reasonably to protect themselves or another from imminent harm.
  • No Use of a Deadly Weapon – The object in question was not inherently dangerous or used in a manner capable of causing great bodily harm.
  • Lack of Intent – The act was accidental, negligent, or misunderstood, not intentional.
  • False Accusation or Misidentification – Witnesses misinterpreted events or the wrong person was identified as the aggressor.
  • Mutual Combat – The alleged “victim” willingly engaged in a fight, complicating the question of who was the aggressor.
  • Insufficient Evidence – The prosecution cannot prove beyond a reasonable doubt that the force used was likely to cause great bodily injury.

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Role of a San Diego Aggravated Assault Attorney

Immediate Case Review and Evidence Preservation – From the first consultation, the attorney reviews police reports, body-worn camera footage, and 911 call recordings to assess whether officers properly followed use-of-force and Miranda procedures. Early intervention is crucial to preserving surveillance footage or witness statements before they are lost or destroyed.

Challenging the Intent and Weapon Elements – Since the prosecution must prove intent and the use of a “deadly weapon” beyond a reasonable doubt, the defense attorney analyzes every detail, including lighting, distance, and witness perception, to show that the defendant lacked the intent or capability to apply violent force.

Identifying Inconsistencies in the Complainant’s Story – A seasoned defense lawyer scrutinizes the victim’s statements for contradictions, prior animosity, or motive to exaggerate. If the complainant testified differently in restraining order hearings or police interviews, those inconsistencies can undermine the prosecution’s case.

Negotiating for Charge Reductions or Dismissal – By emphasizing weak evidence, self-defense claims, or the defendant’s lack of prior record, an attorney may negotiate for reduced charges (such as simple assault under §240 PC) or alternative resolutions like diversion, deferred entry of judgment, or probation.

Protecting the Client’s Record and Future – When charges are dismissed, the attorney assists with expungement petitions under Penal Code §1203.4. If probation is granted, the lawyer ensures all conditions are met to minimize long-term consequences on employment, licensing, and immigration.

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Frequently Asked Questions

Q: What’s the difference between assault and aggravated assault in California?
 A: Simple assault (§240 PC) involves an unlawful attempt to use force or violence against another person. Aggravated assault (§245 PC) involves the use of a deadly weapon or force likely to cause great bodily injury.

Q: Can I be charged even if I didn’t actually hit the person?
 A: Yes. Prosecutors only need to prove that you took an action that could have directly led to force being applied, not that contact occurred.

Q: Is aggravated assault a strike in California?
 A: Yes, felony aggravated assault involving a deadly weapon or great bodily injury is a strike offense under the Three Strikes Law.

Q: Can an aggravated assault be reduced to a misdemeanor?
 A: Yes. Many cases can be negotiated down to a misdemeanor through plea bargaining, especially for first-time offenders or when no one was injured.

Q: Can I own a gun after being convicted?
A: No. Any felony assault conviction, or a misdemeanor involving a firearm, results in a lifetime firearm ban under both state and federal law.

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Additional Resources

California Penal Code §245 – Assault with a Deadly Weapon – The official text of Penal Code §245 defines aggravated assault and outlines penalties for using a deadly weapon or applying force likely to cause great bodily injury. This section is essential for understanding the elements the prosecution must prove in court.

California Department of Justice – Firearm Prohibitions and Gun Laws – Provides information on firearm ownership restrictions, prohibited persons, and the process for restoring rights after a conviction. Felony assault convictions can result in a lifetime firearm ban under both state and federal law.

California Three Strikes Law – Penal Code §667 – Explains California’s sentencing enhancement for repeat felony offenders. A conviction for aggravated assault with a deadly weapon or great bodily injury counts as a “strike,” potentially doubling future sentences.

California Court Self-Help Guide – Criminal Defense Resources – Offers a public overview of criminal procedure in California, including arraignments, plea bargaining, and sentencing. While not a substitute for legal representation, it helps defendants understand the stages of a criminal case.

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Hire a Defense Attorney for Aggravated Assault Charges in San Diego County, CA

A conviction for aggravated assault can carry devastating penalties, including years in state prison, loss of civil rights, and a permanent felony record. The best way to protect your freedom, your future, and your reputation is to contact an experienced criminal defense lawyer as soon as possible.

The Law Offices of Michael E. Cindrich serve San Diego County, including Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City, and La Mesa, as well as San Diego proper.

Don’t wait to build your defense. Call Attorney Michael Cindrich today for a free, confidential consultation at (619) 262-2500.