It is common to hear different people using the term assault and battery when talking about a crime, but California laws consider the two as separate offenses. Under the State’s Penal Code, assault is an act that is likely to inflict physical injury on another person. Battery, on the other hand, is unwanted touching or the actual use of violence or force against another person. Generally, assault is an attempted battery and does not necessarily involve actual physical contact. Battery is an achieved assault, and it involves physical contact.

Facing charges of battery or assault can result in jail time and hefty fines. A conviction will also remain in your record for a long time. The consequences may be more severe if your case involves assault with a deadly weapon. Upon your arrest, your priority should be contacting an Orange County Criminal Lawyer to represent you. With us at your side, you can rely on our expertise and experience to put up a vigorous defense. We will protect your rights, negotiate, and engage every defense strategy available to get the best possible outcome.

A Summary of California’s Assault Laws

Chapter 9 of California’s Penal Code contains the laws on assault and battery. Different sections of the Penal Code describe the various forms of assault. The specific parts of the code are:

  1. Section 240 PC: You commit a crime when you unlawfully attempt, having the present ability, to use violence or force against another person.
  1. Section 241(c) PC: This statute imposes stiffer penalties specifically for assault against the following officers in the course of their duties.
  • Police officers
  • Firefighters
  • Emergency medical technicians (EMT)
  • Paramedics
  • Lifeguards
  • Traffic officers
  • Code enforcement officers
  • Parking control officers
  • Animal control officers
  1. Section 245(a)(1) PC: It is an offense to commit assault on another person with a deadly instrument or weapon, excluding a firearm. It requires the use of either a deadly weapon or the use of force that can probably cause great bodily harm.

Penalties for Assault With a Deadly Weapon

Prosecutors charge assault with a deadly weapon as a wobbler. You can face either misdemeanor or felony charges depending on your criminal history and the facts of your case. To determine whether your charges are misdemeanor or felony, the prosecutor will consider:

  • The type of instrument or weapon you used while committing the alleged offense
  • Whether the supposed victim sustained an injury and the severity of such injuries
  • Who your victim was, for example, if the person was law enforcement or other protected officer.

Potential penalties for misdemeanor charges when the weapon is not a gun are:

  • Summary (misdemeanor) probation
  • A county-jail term not exceeding one year
  • A fine not exceeding $1,000.

For felony charges when the weapon is not a gun, the possible consequences are:

  • Formal (felony) probation
  • Incarceration in state prison for two, three or four years
  • A fine not exceeding $10,000
  • Both imprisonment and a fine

You will face stricter penalties upon conviction if your assault charges involve the use of a firearm. If it is an ordinary firearm, the offense remains a wobbler.

Misdemeanor charges for assault with an ordinary firearm attract:

  • Summary (misdemeanor) probation for up to five years
  • A county-jail term for a minimum of six months but not exceeding one year
  • A fine not exceeding $1,000

The possible consequences for felony assault with an ordinary firearm are:

  • Formal probation
  • Incarceration for two, three or four years in state prison
  • A maximum fine of $10,000
  • Both a fine and a prison term
  • A “strike” in your criminal record under California’s “Three Strikes” law

Under some exceptional circumstances, assault with a firearm automatically becomes a felony and carries longer prison terms.

  • If your offense involved the use of a semi-automatic firearm, the possible term in a state prison increases to three, six, or nine years.
  • If your charges involve the use of a machine gun, an assault weapon or a .50 BMG rifle, the potential prison time increases to four, eight, or twelve years.

Penalties for Assault with a Deadly Weapon on a Firefighter or Law Enforcement Officer

Section 245(a)(1) PC imposes stiffer penalties if:

  • Your supposed victim was a firefighter or a peace officer who was performing their duty when you assaulted them
  • You were aware, or you reasonably should have been informed that the person was a firefighter or peace officer performing their duty

Assaulting a firefighter or peace officer with any deadly weapon is a felony.

  • If you do not use a firearm, the penalty is imprisonment in state prison for three, four, or five years.
  • If you used a firearm, the possible state prison terms vary:
  • Using an ordinary gun attracts four, six, or eight years
  • If you use a semi-automatic firearm, the penalty is five, seven, or nine years
  • Use of a .50 BMG rifle, an assault weapon, or a machine gun attracts a possible six, nine, or twelve years in state prison.
  • A “strike” in your criminal record under California’s “Three Strikes” law

California’s “Three Strikes” law

Under California’s “three strikes” law, assault with a deadly weapon counts as a strike if  you:

  • Caused “severe bodily injury” to the victim while you were committing the offense
  • Personally used a gun while committing the crime, or
  • Assaulted a law enforcement officer with a lethal weapon

If your conviction for assault with a deadly weapon counts as a strike, any subsequent felony conviction will earn you twice the regular sentence for that offense. If you accrue three strike-convictions, with at least one assault with a deadly weapon, you will receive 25 years to life state prison sentence.

What the Prosecutor Must Prove

For the court to convict you,  the prosecution must prove the elements of your crime. These key facts are set out in the legal definition of the crime, and the burden of proving them beyond a reasonable doubt rests upon the prosecution. Also, all twelve jury members must concur that the prosecutor was able to meet this burden. The elements to prove are:

  1. You Executed an Act that, Naturally, is Likely to Result in the Direct Use of Force against Another Person

Use of force means any offensive or harmful touching. Even a slight touch counts as an application of force if you do it in an offensive or rude manner. You can be guilty of assault with a deadly weapon, even if your touch could not or did not result in any injury. Also, the contact does not have to be direct. You can touch the person indirectly using an object. Under California assault laws, you do not need to succeed in using force against the other person. You only need to have acted in a manner likely to cause the use of force on the person.

  1. Either you Executed the Action using a Deadly Weapon, or Your Action would Produce Force that Would Probably Cause Significant Bodily Injury

California’s assault with a deadly weapon law defines a deadly weapon as any weapon, instrument, or object used in a way that it is capable of causing and likely to cause great bodily harm or death. The definition inherently encompasses the recognizable deadly weapons like knives and guns. It also includes objects that you would not typically deem as weapons, but which can be dangerous when you use them in ways that can cause significant harm or death. Examples include:

  • A bottle, if you use it to attack another person
  • A car, if you attempt to run another person down
  • A pencil, if you stab the victim with it
  • A dog, if it attacks another person at your command
  • BB guns, a type of air gun that shoots small metallic pellets
  • An unloaded firearm, if you use it to hit or club another person

The definition of deadly weapons excludes parts of your body, such as feet or hands. However, your hands or feet become deadly weapons if you use force likely to cause great bodily harm.

Great bodily injury refers to substantial or significant physical trauma, not just minor harm. This definition is quite vague. Therefore, the juries in cases of assault with a deadly weapon often exercise their discretion in their determination of what constitutes “great bodily injury.”

  1. You Acted Willfully

Willful acting means you deliberately or willingly took action, even if your intention was not to:

  • Hurt anybody else
  • Break the law
  • Gain an advantage
  1. You Knew Your Actions would Likely Cause the Use of Force

California’s assault with a deadly weapon law does not require that you planned to use force. It is sufficient if, at the time of acting, you knew facts that would cause a reasonable person to presume that the action would directly and likely cause the use of force against the other person. The law places more weight on your awareness of the possibility of using force than on your intention.

  1. At the Time of Acting, You had the Immediate Ability toExert Force using a Deadly Weapon or Force that is Likely to cause Significant Bodily Injury

The prosecutor must demonstrate that you had the intention of committing a battery as well as the immediate ability to execute it. However, they do not need to prove actual physical contact. The prosecutor must also show that you deliberately made contact with the other person.

Common Defenses to Fight Assault with a Deadly Weapon Charges

The penalties for assault with a deadly weapon are severe, even when your actions may not have caused harm to anyone. Your defense lawyer can use some of these defenses to help you avoid the potential consequences.

You did not Use any Deadly Weapon or Apply a Force that would Cause Great Bodily Harm

You are only guilty of assault with a deadly weapon if you actually or personally use a dangerous weapon or force that can result in severe bodily injury. The definition of a deadly weapon is sometimes tricky. While a sharp knife and a loaded firearm will almost always count, a duller knife or an unloaded gun may not be so obvious. Also, there is no clear definition of what constitutes a force that is likely to cause great bodily harm. Your attorney can exploit these gaps to fight your charges.

You Acted to Defend Yourself or Defend Others

The legal argument that you acted in self-defense or to defend others will apply when you are fighting charges of assault with a deadly weapon if all the following statements are correct:

  • You had reasonable cause to believe that either you or another person was in probable danger of being touched unlawfully or suffering physical harm
  • You had reasonable cause to believe that using force promptly was essential to defend yourself or a third party against a threat, and
  • You only used reasonably necessary force in your defense against the danger

If the victim was threatening you physically and you defend yourself using a weapon, you can apply self-defense as a basis to fight charges of assault with a deadly weapon. Self-defense can justify your criminal act if your response was reasonable in the situation, and your actions were in good faith.

Your Action was not Voluntary, and You did not have the Required Intent

Willful acting is one of the elements of assault with a deadly weapon, meaning it is an offense of general intent. The law does not require the prosecution to demonstrate that you planned to cause injury or the specific harm arising from your actions. They only need to prove your intention to act in the way you did. 

It is the responsibility of the prosecution to prove that you acted voluntarily. If your actions were accidental, a mistake, through carelessness, or the victim misinterpreted them, your defense lawyer can tell the real story and set the record straight. The court cannot convict you for assault with a deadly weapon based on involuntary actions.

The Accusations are False

You can face charges of assault with a deadly weapon for acting in a manner that is likely to cause harm, even when nobody sustained an injury. Due to this legal definition of the crime, a person can falsely accuse you of the offense out of:

  • Jealousy
  • Anger, or
  • Vengeance

Your attorney can interview witnesses and collect evidence to bring out the truth and fight your assault with a deadly weapon charge.

Inability to Execute the Threat

The legal definition of assault with a deadly weapon includes the “present ability” to accomplish the assault or use force likely to cause severe bodily harm. You are not culpable if, at the time of acting, you lacked the immediate ability to assault the person. For example, if you threaten to stab a person with a knife that you say you have, but you do not have it, you did not commit assault because you lacked the immediate ability to follow through with the crime.


Your attorney can state that the supposed victim consented to your actions. This defense usually arises where consent is necessary before undergoing medical surgery or in instances of implied consent as a result of the type of activity. For example, participating in physical sports will likely indicate that the person consented to the likelihood of sustaining an injury.

Factual Impossibility

After evaluating the evidence against you, your attorney can submit that it was physically or factually impractical for you to assault the supposed victim because you did not have the immediate ability to commit the offense. For example, your lawyer can provide evidence that when the crime occurred, you had a bodily injury or physical disability, which prevented you from causing harm to the complainant.

Offenses Relating to Assault with a Deadly Weapon

The Penal Code contains different sections that codify crimes that relate to assault with a deadly weapon. They include:

  1. Simple Assault  - PC 245(a)(1)

The prosecutor may reduce your assault with a deadly weapon charge to simple assault if they have no evidence of a lethal weapon or force that can result in severe bodily injury. The only difference between assault with a deadly weapon and simple assault is that simple assault does not require the use of a dangerous weapon or any amount of force.

The potential penalties for simple assault, a misdemeanor are:

  • A fine, not exceeding $1,000
  • A maximum county-jail term of six months
  • Both jail time and a fine
  1. California Battery (PC 242) and Battery causing Serious Bodily Injury (PC 243(d))

Under Section 242 PC, you commit the offense of battery if you intentionally and unlawfully use violence or force upon someone else. Battery does not necessarily involve causing another person pain or injury. The critical element is that you touch the person in an offensive or harmful manner.

Battery is a misdemeanor with possible penalties of:

  • Not more than $2,000 in fines
  • A county jail sentence not exceeding six months
  • Both a fine and a jail term

If you inflict severe injury on the alleged victim, you will face stiffer penalties under Section 243(d) PC, which criminalizes battery causing serious bodily injury. Also referred to as aggravated battery, it occurs when you intentionally touch another person in an offensive or harmful manner, causing the person to sustain serious bodily harm. This crime is a wobbler, and felony charges can result in two, three, or four years in state prison.

  1. Brandishing a Firearm or Weapon (PC 417)

Section 417 PC of California’s penal code prohibits exhibiting, drawing, or using a deadly weapon or firearm. You will face criminal charges under this code if you display a gun or other dangerous weapon in a threatening, angry, or rude manner. The offense is usually a misdemeanor punishable by a maximum of six months or one year in county jail, depending on the facts of your case. PC 417 brandishing a gun or weapon is a valuable plea bargain for assault with a deadly weapon because it carries lighter penalties.

  1. Assault with Caustic Chemicals (PC 244)

You commit assault with caustic chemicals, a crime under Section 244 PC, when you deliberately and maliciously throw harmful chemicals at another person, to disfigure or injure the person. It differs from assault with a deadly weapon in two ways:

  • Assault with caustic chemicals only occurs if the substance makes contact with the victim’s body
  • Assault with caustic chemicals occurs even when you use an amount or a type of chemical that does not count as a lethal weapon or is incapable of causing severe bodily injury

Assault with caustic chemicals is a felony that carries:

  • A term of two, three or four years in state prison
  • A maximum fine of $10,000
  • Both a fine and imprisonment
  1. Assault on a Public Official

Section 217.1(a) PC prohibits assault of public officials or members of their immediate family as a way of retaliating or preventing them from performing their official duties. Public officials include members of the judicial, legislative and executive wings of government, public defenders, and prosecutors. Assaulting a public official, PC 217.1(a) is a wobbler.

  1. Failing to Control a Dangerous Animal

Section 399 PC of the California Penal Code applies if your vicious dog attacks someone else, and evidence shows that you planned that attack. You could face criminal charges for failure to control the dangerous animal, assault with a deadly weapon, or both offenses. Also, you may be guilty of a PC 399 offense if you are in control of or own a dangerous dog, you are aware it is dangerous, you fail to use reasonable care to restrain it, and it kills or injures someone severely. If the victim suffers injuries, the crime is a wobbler, but it is a felony if the person dies.

  1. Throwing a Dangerous Object at a Motor Vehicle

Under Section 23110(b) VC of the California Vehicle Code, you commit an offense if you maliciously and willingly throw a harmful object at a vehicle or the occupants, with the intent to cause severe bodily injury. You may concurrently face charges of throwing dangerous objects at a vehicle and assault with a deadly weapon. Additionally, violating VC 23110(b) can occur even without the immediate ability to inflict injury, such as when the car was too far for you to hit.

  1. Possessing  a Deadly Weapon with Intent to Commit Assault

It is a crime under Section 17500 of the Penal Code to have a lethal weapon with the intention of using it to assault another person. This misdemeanor offense carries a maximum of six months in county jail. If you carry out your plan and assault another person with the weapon, you then face charges of assault with a deadly weapon.

Find a Criminal Lawyer Near Me

Facing any criminal charges can be overwhelming for you and your loved ones. Life becomes more complicated when you have to pay hefty fines or serve time in jail even without inflicting physical harm on anyone. If you are in this situation, you need to contact a highly competent lawyer at 714-262-4833. The Orange County Criminal Lawyer team has extensive experience from years of representing our clients in Orange County, CA. We can maneuver the justice system, defend you vigorously, and possibly convince the judge or jury to rule in your favor.