Law Offices of Michael E. Cindrich, APC 225 Broadway, Suite 2100 San Diego, CA 92101

Assault with a Deadly Weapon

When police accuse someone of swinging a knife, striking with a blunt object, or even using a car in a threatening way, that person may suddenly face prosecution for assault with a deadly weapon under California Penal Code § 245. This charge is far more complex than it may appear, it requires prosecutors to prove not only an act of force, but also that the object used was capable of causing great bodily injury and that the act was intentional. These cases often turn on subtle distinctions between accident, threat, and intent, making early legal intervention crucial.

San Diego Assault With a Deadly Weapon Lawyer

At The Law Offices of Michael E. Cindrich, APC, every assault with a deadly weapon case is examined with the depth and precision that comes from years of litigating violent felonies in San Diego courts. As a former prosecutor, Michael Cindrich understands how these cases are built and how to dismantle them through aggressive pretrial motions, careful cross-examination, and strategic negotiation. The following sections outline California’s assault with a deadly weapon laws, the potential penalties, available defenses, critical stages of the process, and how a San Diego assault with a deadly weapon lawyer protects clients facing these serious allegations.

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

For a free, confidential consultation, call (619) 262-2500.

Overview of Assault with a Deadly Weapon Charges in San Diego

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What the Law Says About Assault With a Deadly Weapon in California

Assault With a Deadly Weapon Other Than a Firearm — This offense is defined under California Penal Code § 245(a)(1). It applies when a person assaults another individual using any deadly weapon or dangerous instrument other than a firearm. A deadly weapon is any object that, when used in a particular way, is capable of causing and likely to cause death or great bodily injury. This may include knives, vehicles, bottles, or blunt objects used to strike another person. A conviction can result in imprisonment in the state prison for two, three, or four years, or in county jail for up to one year. The court may also impose a fine up to $10,000, or both a fine and imprisonment. The charge is considered a “wobbler,” meaning it may be prosecuted as either a misdemeanor or a felony depending on the facts of the case and the defendant’s criminal history.

Assault With a Firearm — Under California Penal Code § 245(a)(2), assault with a firearm occurs when a person commits an assault upon another using any type of firearm. This includes handguns, rifles, and shotguns. The penalties for this offense depend on the weapon used and the circumstances of the assault. A conviction can lead to imprisonment in the state prison for two, three, or four years, or in county jail for not less than six months and not more than one year. The court may also impose a fine up to $10,000, or both a fine and imprisonment. If the firearm is used in a way that causes injury or if the victim is a protected individual, such as a peace officer, the punishment can be more severe.

Assault With a Semiautomatic Firearm — California Penal Code § 245(b) addresses cases where the assault involves a semiautomatic firearm. A semiautomatic firearm is a weapon that automatically extracts and chambers a new cartridge after each shot, with a single pull of the trigger. The law imposes harsher penalties for this type of assault because of the increased danger and firepower involved. A conviction carries a potential prison sentence of three, six, or nine years. This offense is always charged as a felony, and probation is rarely granted.

Assault With a Machine Gun, Assault Weapon, or .50 BMG Rifle — According to California Penal Code § 245(a)(3), using a machine gun, assault weapon, or .50 BMG rifle to commit an assault is treated with extreme seriousness. A conviction can result in a sentence of four, eight, or twelve years in state prison. The length of the sentence depends on factors such as the weapon used, the extent of any injuries, and the defendant’s criminal record.

Assault on a Peace Officer or Firefighter — California Penal Code § 245(c) and § 245(d) impose heightened penalties when an assault with a deadly weapon or force likely to cause great bodily injury is committed against a peace officer or firefighter who is performing official duties. To qualify for these enhanced penalties, the offender must know or reasonably should know that the victim is a peace officer or firefighter engaged in duty. Penalties vary depending on the weapon used: three, four, or five years in state prison for a deadly weapon other than a firearm; four, six, or eight years for a firearm; five, seven, or nine years for a semiautomatic firearm; and six, nine, or twelve years for a machine gun, assault weapon, or .50 BMG rifle. A conviction can also result in lifetime firearm restrictions and increased parole supervision.

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Key Elements a Jury Considers in an Assault With a Deadly Weapon Case

Willful Act and Present Ability to Apply Force — California law requires proof that the defendant intentionally performed an act that by its nature would directly and probably result in the application of force to another person. This standard comes from CALCRIM No. 875, which defines the core elements of assault under Penal Code § 245. The act must be willful, meaning the person did it on purpose rather than by accident, but the prosecution does not have to prove that the defendant intended to injure the other person or to break the law. In addition to acting willfully, the defendant must have had the present ability to apply force. This means the defendant must have been capable of carrying out the act at the time, such as having physical control over a weapon or being close enough to use it effectively.

Awareness of the Nature of the Act — The law also requires that the defendant was aware of facts that would lead a reasonable person to realize that their actions would probably result in the application of force. It is not necessary for the defendant to have intended to cause harm, but they must have known that their conduct was likely to cause a person to be touched in a harmful or offensive way. This element helps distinguish intentional conduct from mere negligence or accident.

Use of a Deadly Weapon or Force Likely to Cause Great Bodily Injury — The prosecution must establish that the assault involved either a deadly weapon or force likely to produce great bodily injury. Great bodily injury refers to substantial or significant physical injury—more than minor or moderate harm. Even objects not designed as weapons, such as vehicles, bottles, or tools, may qualify as deadly weapons depending on how they were used during the assault.

No Requirement of Actual Injury — A conviction for assault with a deadly weapon does not depend on whether the alleged victim was actually injured. California law focuses on the act itself—the attempt or apparent ability to use force—rather than the result. The prosecution only needs to show that the defendant’s actions were likely to result in the application of force and that the defendant had the immediate ability to do so. The absence of an actual injury does not prevent the jury from finding guilt if all other legal elements are satisfied.

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Common Legal Defenses to Assault With a Deadly Weapon Charges

Self-Defense or Defense of Another — A person accused of assault with a deadly weapon may argue that they acted lawfully in self-defense or in defense of another person. California law allows the use of reasonable force to protect oneself or someone else from imminent bodily harm. This defense applies when the defendant believed they or another person were in immediate danger of suffering physical injury or unlawful touching and that the force used was no more than necessary to prevent that harm. If the evidence shows that the defendant’s belief was both honest and reasonable under the circumstances, the law justifies the act, even if it resulted in injury. The court must instruct the jury to consider self-defense when supported by evidence, as recognized under CALCRIM Nos. 3470–3477.

Lack of Intent or Willfulness — To convict someone of assault with a deadly weapon, the prosecution must prove that the act was done willfully. This means the act was intentional and voluntary, rather than accidental or reflexive. If the defendant did not intend to commit the act that caused fear of injury or if the act occurred due to an unintentional movement, the element of willfulness is missing. For example, if someone accidentally drops an object that strikes another person, it does not constitute assault because the conduct was not deliberate. Evidence showing that the defendant’s actions were the result of an accident or misunderstanding may be enough to raise reasonable doubt.

False Accusation or Mistaken Identity — False allegations and mistaken identification occur frequently in assault cases. Emotional or chaotic situations can lead witnesses or victims to misinterpret events, and poor lighting or stress may cause mistaken identity. A defense attorney can challenge these claims through cross-examination, presentation of surveillance video, phone records, or other physical evidence showing that the defendant was not the perpetrator. Establishing inconsistencies in witness testimony or highlighting motives to lie can significantly weaken the prosecution’s case.

Lack of a Deadly Weapon or Force Likely to Cause Great Bodily Injury — In some situations, the defense can argue that the object involved was not a deadly weapon under the law or that the force used was not likely to cause great bodily injury. For example, a small object thrown from a distance may not qualify as a deadly weapon because it lacks the potential to inflict serious harm. Similarly, a minor physical encounter that does not involve the use of significant force may not rise to the level of an assault likely to cause great bodily injury. Courts evaluate these issues by examining how the object was used and whether a reasonable person would believe the conduct could produce serious injury.

No Present Ability to Apply Force — Another valid defense arises when the defendant lacked the immediate ability to carry out the assault. Under California law, there can be no assault unless the person had the present ability to apply force. For instance, pointing an unloaded firearm at someone may not qualify as assault if it was not used as a bludgeon or in a threatening manner that could realistically cause harm. This defense focuses on whether the accused could have actually followed through with the threatened act at that moment.

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Role of a San Diego Assault With a Deadly Weapon Attorney

Immediate Case Evaluation and Strategy — In assault with a deadly weapon cases, the attorney’s first step is to examine the alleged weapon, the manner of its use, and the credibility of the witnesses. The lawyer identifies whether the object truly meets the legal definition of a “deadly weapon” under Penal Code § 245 and whether the defendant’s actions show intent to harm or reasonable self-defense. Early investigation often uncovers exaggerations or procedural flaws that can change the course of the case.

Challenging the Definition and Intent — Many assault with a deadly weapon charges hinge on interpretation. The defense attorney works to prove that the weapon was not inherently deadly, that the defendant acted reflexively or defensively, or that the prosecution overstated the danger. By focusing on intent and actual use, the lawyer aims to reduce or dismiss the charge entirely.

Strategic Negotiation and Trial Defense — If the prosecution insists on proceeding, the attorney uses targeted negotiation to seek charge reductions or alternative sentencing. When trial becomes necessary, the defense challenges every element—cross-examining witnesses, disputing forensic claims, and presenting evidence showing the act was defensive or accidental, not criminal.

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Frequently Asked Questions

What is assault with a deadly weapon in California?
Assault with a deadly weapon in California means attacking or attempting to harm someone using any object capable of causing serious injury or death, under Penal Code § 245.

What are the penalties for assault with a deadly weapon charge?
Penalties for assault with a deadly weapon charge include up to four years in prison, fines up to $10,000, probation, and potential felony conviction depending on the weapon and circumstances.

Can an assault with a deadly weapon be reduced to a misdemeanor?
Yes. Depending on the facts, an assault with a deadly weapon case under Penal Code 245(a)(1) can sometimes be reduced to a misdemeanor through plea negotiations or mitigation.

Can someone be charged with assault with a deadly weapon without causing injury?
Yes. Actual injury is not required for an assault with a deadly weapon conviction—only proof that the defendant intended and had the ability to apply force using a dangerous object.

What defenses can a lawyer use for an assault with a deadly weapon case?
Common defenses include self-defense, defense of another, mistaken identity, lack of intent, or proving the object used was not a deadly weapon likely to cause serious injury.

Is jail mandatory for assault with a deadly weapon conviction?
Not always. Jail may be avoided through probation or alternative sentencing, especially for first-time offenders or cases filed as misdemeanors rather than felony assault with a deadly weapon.

How can a San Diego assault with a deadly weapon lawyer help?
A San Diego assault with a deadly weapon lawyer can investigate evidence, negotiate with prosecutors, challenge charges, and protect an individual’s rights to seek the best possible case outcome.

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Resources

California Penal Code § 245 – Assault With a Deadly Weapon — This section of California law explains what qualifies as assault with a deadly weapon under Penal Code § 245. It outlines the definitions, penalties, and sentencing ranges for different types of assaults, including those involving firearms, semiautomatic weapons, and assaults on peace officers or firefighters.

CALCRIM No. 875 – Assault With a Deadly Weapon or Force Likely to Produce Great Bodily Injury — This resource provides the official California jury instruction used in assault with a deadly weapon cases. It lists the specific legal elements the prosecution must prove and clarifies terms such as “deadly weapon,” “willfully,” and “great bodily injury.” It also explains what jurors must consider when evaluating defenses like self-defense or lack of intent under California law.

U.S. Department of Justice – Dangerous and Deadly Weapons — This article, published by the U.S. Department of Justice, discusses how California law defines and regulates dangerous and deadly weapons. It explains the difference between “deadly” and “dangerous” weapons, provides examples, and describes related California Penal Code sections including § 245 and § 417, as well as weapon possession and reporting requirements.

San Diego Municipal Code – Firearms, Dangerous Weapons, and Explosives — This document contains local laws in the San Diego Municipal Code regulating firearms, explosives, and other dangerous weapons. It includes rules about firing firearms within city limits, storing weapons, penalties for violations, and restrictions related to assault weapons and ammunition.

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Hire a Defense Attorney for Assault with a Deadly Weapon Charges in San Diego County, CA

An assault with a deadly weapon charge is a serious felony in California, carrying the potential for years in prison and a strike under the Three Strikes Law. These cases often hinge on witness credibility and self-defense claims.

Attorney Michael E. Cindrich has extensive experience defending clients accused of violent crimes. We carefully analyze evidence, interview witnesses, and develop powerful defenses to challenge the prosecution’s case.

Call (619) 262-2500 today for a confidential consultation to start building your defense strategy.