Assault with a Deadly Weapon

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ASSAULT WITH A DEADLY WEAPONAssault with a Deadly Weapon

In order to determine the possible sentences for a violation of section 245 of the Penal Code the nature of the weapon used is necessary.

  • If the weapon is not a firearm the sentence where the crime is charged as a misdemeanor is county jail for up to one year; if charged as a felony is prison for 2, 3, or four years.
  • If the weapon is a firearm, then the sentence is if charged as a misdemeanor county jail for six months to one year; if charged as a felony the sentence is prison for 2, 3, or four years a fine.
  • Where the firearm is a machine gun, assault weapon, or .50 BMG rifle the sentence is prison for 4, 8, or 12 years.1
  • Where the firearm is a semiautomatic firearm, the sentence is prison for 3, 6, or nine years.2
WHAT OBJECTS ARE INCLUDED IN THE TERM “DEADLY WEAPON?”Assault with a Deadly Weapon

Other than the obvious deadly weapons such as firearms, daggers . . . etc., there are other objects that can qualify if they are used as a deadly weapon, even if they were not created, originally owned or possessed for that purpose.3

Factors used in judging the nature of an object as a deadly weapon are:

  1. The nature of the object;
  2. The manner of its use;
  3. The location of the injuries inflicted;
  4. The extent of those injuries.

If no weapon is found on the scene of an assault, and there exists no direct evidence of the particular object used to inflict injuries to a person found there; the nature of the injury may justify an inference that it was inflicted by a deadly weapon or instrument. 4

While hands and feet do not qualify as deadly weapons alone, some footwear such as steel-toed boots may be considered weapons if used for that purpose.

ASSAULT WITH STUN GUN OR LESS LETHAL WEAPON.

It is unlawful to assault another with a” stun gun” or a “less lethal weapon.”

The sentence for a violation if charged as a misdemeanor is up to one year in the county jail; If charged as a felony the sentence is imprisonment under P.C. 1170(h)

Assault with stun gun or less lethal weapon

A “stun gun” is a “less lethal weapon,” which can be used either offensively or defensively and is intended to immobilize a person temporarily through the discharge of an electric current or charge. 5

The crime does not require actual immobilization but only that a weapon be capable of that result through the application of an electrical charge.

A “less lethal weapon” is an object that is intended to discharge “less lethal ammunition,” which is ammunition that is used to immobilize a person through the use of less than deadly force.

The bow and arrow is a deadly weapon especially if put into the han


1Section 245(a)(3) of the California Penal Code

2Section 245(b) of the California Penal Code

3People v. Mosqueda (1970) 5 C.A.3d 540, 544, 85 C.R. 346; A pencil can be a deadly weapon where a threat is made to stab a person in the throat; any “hard, sharp, pointy thing” used to threaten can be a deadly weapon. People v. Page (2004) 123 C.A.4th 1466, 1472, 20 C.R.3d 857;

4People v. Beasley (2003) 105 C.A.4th 1078, 1088, 130 C.R.2d 717. Use of broomstick and vacuum cleaner extension as deadly weapons where injuries exist.

5Section 245.5(a) of the California Penal Code.