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Assault With A Deadly Weapon Or Force Likely To Produce Great Bodily Injury

Assault With A Deadly Weapon Or Force Likely To Produce Great Bodily Injury in Los Angeles

California’s Assault with a Deadly Weapon law is codified at California Penal Code section 245(a)(1), and is triggered when a suspect attacks, or tries to attack, someone with a deadly/dangerous weapon or in a manner that actually does result in severe physical harm, or probably would cause such harm if the attack was successful.

As with many Assault-related crimes, ADW – the acronym by which this offense is commonly known – is known as a “Wobbler” (California Penal Code section 17(b)) because, depending on the circumstances, it can be charged either as a felony or a misdemeanor.

When a deadly/dangerous weapon is not used, but where the suspect otherwise attacks the accuser to such a degree that grievous bodily harm results, then ADW under that particular circumstance is also commonly referred to as “Aggravated Assault”.

Keep in mind that to be convicted of ADW, you don’t actually have to injure or even make physical contact with the accuser. In other words, there is no such thing as attempted ADW.

Assault and Battery Crimes – Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury — “Strikes”

In addition to other potential sentencing enhancements, ADW cases can also be charged as a Strike Offense (California Penal Code section 667(a)&(b)).

Depending on the particulars of the case, as well as your own criminal history, if your ADW case is charged as a Strike crime and you are convicted, you could receive a sentencing enhancement of anywhere from five additional years to 25-to-life in prison.

Specifically, if you inflicted severe physical harm on the accuser, then your ADW charge will be characterized as a “Violent Felony” under California’s so-called “Three Strikes Law”. See California Penal Code section 667.5(c)(8) (“Any felony in which the defendant inflicts great bodily injury on any person”).

And if you did assault someone with a deadly/dangerous weapon – specifically, a gun, then your ADW charge will also be classified as a Violent Felony under Penal Code section 667.5(c)(8), or as a “Serious Felony” Strike under California Penal Code section 1192.7(c)(2)).

Criminal Defense

California Statutes – Assault and Battery Crimes — Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury

California Penal Code section 245(a)(4)(Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault):

This specific statute defines this offense as you committing an assault upon someone by any manner of “force likely to produce great bodily injury”. 

As discussed above, because this is a Wobbler” crime, it can be prosecuted as either a felony or a misdemeanor.

California Penal Code section 245(a)(1) (Assault with a Deadly Weapon):

This offense is defined hereunder as you committing an assault on someone else with a deadly/dangerous weapon/instrument – but not a gun. This, too, is a Wobbler offense.

California Penal Code section 245(c)(Assault with a Deadly Weapon on a Police Officer):

This particular crime involves you committing an assault against a police officer or fireman with a deadly weapon/instrument, but not a gun, in a manner that, if successful, would probably cause severe physical harm.

The caveat is that the accuser/victim must have been performing his/her duties in that professional capacity at the time of the assault (even if he/she was not in uniform at the time).

Not surprisingly, this crime is always charged as a felony with serious prison time upon conviction (see below).

Assault and Battery Crimes — Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury — Convictions

California Penal Code section 245(a)(4) (Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault):

If you’re convicted of this particular assault crime as a felony, and the judge actually sends you to prison, then you’ll get a low, mid, or high-term range of 24, 36, or 48 months (excluding any enhancements).

But if you’re only convicted of a misdemeanor, at most you’ll be sentenced to only 12 months in the county jail.

California Penal Code section 245(a)(1) (Assault with a Deadly Weapon):

A felony conviction hereunder will get you a prison term – again, assuming one is ordered as punishment – of 24, 36, or 48 months. A misdemeanor conviction results in a maximum 365-day jail term.

California Penal Code section 245(c) (Assault with a Deadly Weapon on a Police Officer):

Of all assault-related crimes, this one comes with one of the heaviest base ranges of prison terms: 3, 4, or 5 years in a state penitentiary. Again, this will always result in a felony conviction.

Defenses to Assault and Battery Criminal Charges — Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury

According to the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”), these defenses will serve to defeat the foregoing assault charges:

  • You didn’t use force that would probably cause severe physical harm; 
  • You didn’t use a deadly/dangerous weapon/instrument; 
  • You didn’t act in a way that would naturally and likely cause the use of force upon the accuser; 
  • You didn’t act intentionally (e.g., the “assault” was the result of an accident); 
  • When you committed the act, you weren’t aware of facts – nor should you reasonably have been aware of facts – that your act would likely cause the use of force on the accuser; 
  • When you committed the act, you didn’t actually have the capability to inflict such force on the accuser; 
  • When you committed the act, you were reasonably defending yourself or a third party from the accuser; 
  • The assault resulted from you being involuntarily intoxicated or drugged.
    • See CALCRIM number 875 (“Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code §§ 240, 245(a)(1)–(4), (b)).
    • See also CALCRIM number 860 (“Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245(c) & (d)”);
    • CALCRIM number 862 (“Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245, 245.3”);
    • CALCRIM number 863 (“Assault on Transportation Personnel or Passenger With Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245, 245.2”);
    • CALCRIM number 3470 (“Right to Self-Defense or Defense of Another”);
    • CALCRIM number 3471 (“Right to Self-Defense: Mutual Combat or Initial Aggressor”);
    • CALCRIM number 3472 (“Right to Self-Defense: May Not Be Contrived”);
    • CALCRIM number 3474 (“Danger No Longer Exists or Attacker Disabled”); and
    • CALCRIM number 917 (“Insulting Words Are Not a Defense”).

Examples of Assault and Battery Crimes – Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury

Long Beach Resident Facing 8 Years in Prison for Two Counts of Assault w/ Force Likely to Cause Severe Physical Harm

In late May of this year, (2021), Long Beach resident Antoine Rainey (age 37) allegedly road-raged in West Rancho Dominguez. According to the LA County Sheriff’s Dept., he slammed his breaks at an intersection thereat, jumped out of his vehicle, ran to the vehicle directly behind his, yanked open the driver’s-side door, and proceeded to repeatedly strike the female driver. (It remains unclear what, if anything, supposedly provoked this incident.)

On May 30th (less than 24 hours later), Rainey once again allegedly assaulted another woman – this time at a Chevron in the same area as the previous incident. He allegedly walked up on the second purported victim, struck her with his fist, and thereby dropped her to the cement. (Again, no motive for the alleged attack was disclosed/alleged by LASD.)

He then allegedly proceeded to strike her repeatedly, followed by a series of brutal kicks to her upper torso.

LASD arrested him shortly thereafter, and one week later the LA County DA’s Office filed a formal criminal complaint against him with several felony-counts of Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault (Penal Code section 245(a)(4)).

Even without a Strike enhancement, if he’s convicted of both counts, he’s facing a maximum of 8 years in state prison.


Another Long Beach Resident is Charged, and this Time Sentenced, for a Serious Assault

In 2013, Jayson Lingen (then age 53) was convicted of Assault with a Deadly Weapon (ADW) (Pen. Code section 245(a)(1)), but it remains unclear whether he did any time.

Unfortunately for him, he apparently didn’t learn his lesson and once again found himself facing the same exact charge only three years later. Specifically, in mid 2016, a seventeen-year-old Pokemon player was wandering around in downtown Long Beach, looking down at his digital device, oblivious to his surroundings, when he accidentally bumped into Lingen.

Enraged, Lingen picked up some type of steel object and struck the teenager’s head with it. Fortunately, the poor kid wasn’t seriously hurt and, amazingly, didn’t even have to be hospitalized. (Apparently, EMTs treated him at the scene.)

It wasn’t long before Long Beach PD caught Lingen and nabbed him (though how they caught onto him remains unclear). Because of his previous ADW conviction, he was now facing a Strike Offense (Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”)). Thus, if convicted of the new Assault with a Deadly Weapon charge, he was looking at a maximum eight-year prison sentence (four years for ADW plus double that base max for the second Strike).

Approximately one year later, in early June 2017, Lingen accepted a nolo contendere felony plea to ADW in exchange for prosecutors agreeing to request that the presiding judge knock off a single year from his maximum sentence. This seven-year-term certainly doesn’t sound like a great deal, but he took it nevertheless. Certainly, the LADALF would never have accepted such a poor deal.


Some Assault with a Deadly Weapon Cases Defended by the Los Angeles Defense Attorney Law Firm (LADALF)

Client Could Have Received Two-and-a-Half Decades in Prison for Armed Robbery; Plead to One Felony with No Jail, Rehab & Probation Only

People v. L.W. (downtown Criminal Courts Building – 10/2021)

A West LA medical-marijuana dispensary’s closed-circuit security cameras filmed the client robbing the employees at gunpoint, followed by the client (allegedly) dragging one of them by the neck. The exterior security cameras also filmed the client and his accomplice fleeing the scene in a rental car that was traced to the client. Client, who was under the influence of crystal methamphetamine at the time, also left his fingerprints on the dispensary’s counter.

It didn’t take long for client to be arrested and charged with:

If convicted of all charges, client could be sentenced to more than twenty-four years in a medium-security California penitentiary, including the Strike and Special Allegation enhancements. Plus, because of the Strike, he would need to serve 80% of the term before he would be eligible for early release based on good behavior.

See also Punishments for Robbery (Penal Code section 213).

After twelve-plus months of battling the DA’s Office on this case, Ninaz Saffari obtained a plea deal that was so extraordinary – indeed, it was virtually unprecedented in that courtroom – that the judge himself stated on the court that the deal was “unheard of” in his entire career on the bench.

Result: Client agreed to plead guilty to 1 count of Robbery – suspended sentence of 9 yrs., 12 mos. on in-facility residential treatment, 48 mos. of probation. Thus, client didn’t receive even a single day in jail, much less prison.

“Ryan X.” Looking at 48 Months’ Prison for Assault w/ Deadly Weapon; Ended Up with a No-Jail Misdemeanor

People v. Ryan X. (Compton Courthouse – 10/2020):

According to the victim/accuser (as well as LAPD and the District Attorney’s Office), he was cycling through the city when he was cut off by client “Ryan X.” The cyclist admitted to banging his hand on Ryan’s hood in frustration, but then claimed that Ryan swerved his automobile in an attempt to run him over. Luckily, the cyclist was not seriously injured.

Notwithstanding, Ryan was apprehended, incarcerated (before making bail), and prosecuted for:

Assault with a Deadly Weapon (ADW) (P.C. sec. 245(a)(1)); and

Strike Offense.

And although this would have been “only” his first Strike conviction, with a maximum four-year sentence, he’d still have to complete a minimum of approximately 38.5 months – again, even with good-time credits.

After retaining LADALF, Ninaz – almost miraculously – was able to get the charge knocked down from a felony Strike to misdemeanor Simple Battery (California Penal Code section 242). But that conviction could still require Ryan to receive a twelve-month county-jail term.

Result: Following a protracted ordeal, Ninaz Saffari was finally able to convince the prosecutor to offer Ryan a no-jail misdemeanor with summary probation and volunteer work only. Equally good, once that was satisfactorily completed, the court would dismiss the conviction.

Assault with a Deadly Weapon (27 Years) – Not Guilty After Jury Trial

People v. G.S. (DTLA courthouse – 04/2014):

“George” was prosecuted for several counts of Assault with a Deadly Weapon for personally using a semi-auto firearm.

He was also prosecuted for a Strike plus a Special Allegation of Personal Use of a Firearm During a Felony (California Penal Code section 12022.5).

Maximum possible sentence: twenty-seven years.

Not once did George ever waver in his claims that he was innocent so Ninaz tried the case before a jury.

At trial, Ninaz convinced the jurors that the prosecution’s witnesses testified falsely against George. She also put on defense witnesses who testified about George’s lack of criminal culpability. Finally, her forensic witness testified that George’s fingerprints were never lifted from the firearm

Result: George was acquitted of all counts.