Assault with a Deadly Weapon (ADW)
Penal Code § 245(a)(1) · CALCRIM 875
ADW is a "wobbler" — it can be charged as a misdemeanor or a felony, and that single decision changes everything, including whether the conviction becomes a strike. Because the charging decision is often still open early on, what happens in the first weeks matters enormously.
We defend people charged with crimes in Los Angeles, Orange and Riverside counties. We do not file lawsuits or represent victims.
In plain English
How serious is this?
ADW covers attacking — or trying to attack — someone with a weapon, or with force likely to cause serious injury. How much you actually face turns almost entirely on one decision: whether it is filed as a misdemeanor or a felony.
| Case reference | ADW · non-firearm |
|---|---|
| Section | PC 245(a)(1) |
| Severity | Wobbler (misd / felony) |
| Injury required | No |
| Contact required | No |
| Custody exposure | ≤ 1 yr jail · or 2–3–4 yrs prison |
| Max fine | ≤ $10,000 |
| Strike | Yes if felony |
| Instruction | CALCRIM 875 |
Reduction paths: PC 17(b) motion · plea to simple assault (PC 240) or battery (PC 242). Statute of limitations 3 years (PC 801). Figures are ranges — confirm against current statute.
What it carries, on paper
| Penalty | Range |
|---|---|
| If a misdemeanor | Summary probation · up to 1 year county jail · fine |
| If a felony | Formal probation · 2, 3, or 4 years state prison · fine up to $10,000 |
| Strike consequences | A felony conviction counts as a strike — future felonies carry doubled sentences and reduced credits |
| Firearms | A felony conviction means a lifetime firearms ban; a misdemeanor carries a 10-year ban |
| Immigration | Can be treated as a crime of violence or aggravated felony — serious risk for non-citizens |
| Also expect | Victim restitution · possible protective order · loss of the weapon |
The first few hours
Common mistakes people make early
In assault cases, most of the damage — and most of the lost opportunity — happens in the first weeks, while the charging decision is still open.
Before the first meeting
What to bring your lawyer
- Any charging or arrest paperwork, and any protective order.
- An honest timeline of the incident — including what led up to it and who did what first.
- Photos of any injuries to yourself, and the object involved if you still have it.
- Where cameras may have been — the businesses, homes, or intersections nearby.
- Names and numbers of everyone who saw it, and any texts or messages from before or after.
Mitigation packet — bring whatever applies
Good outcomes often turn on who you are, not just what happened. Start gathering these early — we use them to argue for reduction, diversion, or a lighter sentence. This same packet helps in any charge we defend, so it's worth building once and keeping.
- Education — diplomas, transcripts, enrollment or admission letters.
- Family & dependants — photos of your children and family, and proof you support them.
- Military service — proof of service or discharge papers (DD-214).
- Employment — proof of work, a letter from your employer, recent pay records.
- Medical — diagnosis, hospital records, and treatment history for any condition.
- Steps already taken — proof of enrollment in an anger-management, counseling, or treatment program.
- Character — reference letters and evidence of community or volunteer involvement.
What you can do now
- Write down every place a camera might have been — and tell your lawyer today, so preservation letters go out before footage is overwritten.
- Photograph any injuries to yourself — several angles, ideally date-stamped — while they are still visible.
- Consider enrolling voluntarily in an anger-management or counseling program — starting before court shows real initiative.
- Have no contact with the accuser or witnesses; route everything through your lawyer.
- Avoid discussing the case with anyone but your lawyer — and never on social media.
The law — for counsel
Elements
PC 245(a)(1) — CALCRIM 875
(1) The defendant did an act with a deadly weapon other than a firearm — or by means of force likely to produce great bodily injury — that by its nature would directly and probably result in the application of force to a person; (2) the act was willful; (3) the defendant was aware of facts that would lead a reasonable person to realize the act would directly and probably result in the application of force; (4) the defendant had the present ability to apply force with a deadly weapon or force likely to produce GBI; and (5) the defendant did not act in self-defense or defense of another.
Counterintuitive points
- No touching, no injury required. The act need only be one that would probably result in the application of force — a swing that misses still supports the charge.
- Willfulness attaches to the act, not the harm. No intent to injure, frighten, or break the law is required — only that the act was done on purpose.
- Hands and feet are not deadly weapons. Bare-hands force goes to 245(a)(4) (force likely to produce GBI), not (a)(1) — a distinction that carries directly into the strike analysis.
- Inherently deadly vs. deadly as used. Where an ordinary object is alleged, the theory must be that it was used in a manner capable of and likely to produce death or GBI — instructing on both theories where only one is supported is error.
- The strike line. A felony under (a)(1) with a deadly weapon is a serious felony and a strike regardless of injury; a felony under (a)(4) is a strike only where GBI was actually inflicted.
- General intent. Voluntary intoxication is not a defense; involuntary intoxication may be.
Where it escalates
The 245 family — related subdivisions
Worth confirming which subdivision is actually charged; the exposure and strike consequences differ sharply.
| Section | Conduct | Exposure |
|---|---|---|
| 245(a)(1) | Deadly weapon other than a firearm | Wobbler · 2–3–4 yrs |
| 245(a)(2) | Ordinary firearm | Wobbler · misd. min. 6 mos |
| 245(a)(3) | Machine gun, assault weapon, .50 BMG | Felony · 4–8–12 yrs |
| 245(a)(4) | Force likely to produce GBI | Wobbler · strike only if GBI |
| 245(b) | Semiautomatic firearm | Felony · 3–6–9 yrs |
| 245(c)/(d) | Peace officer or firefighter | Felony · elevated terms |
Lesser includeds commonly in play: simple assault (PC 240) · battery (PC 242) · brandishing (PC 417). Confirm all terms against current statute.
Where it is fought
Jury instructions & bench notes
- CALCRIM 875 is the core instruction — note it covers 245(a)(1)–(4) and (b), so the correct alternative must be selected for the weapon alleged.
- CALCRIM 3470 (self-defense / defense of another) will usually pair with it — confirm the theory is properly requested.
- Watch the bench notes on the inherently-deadly versus used-as-deadly alternatives, and on lesser included instructions for PC 240.
Common defenses
- Self-defense or defense of others: the client reasonably believed in imminent danger and used proportionate force — usually the strongest theory, and the one video and injury photographs support.
- The object was not a deadly weapon: not inherently deadly, and not used in a manner capable of and likely to produce death or GBI — this can drop the charge to simple assault.
- No willful act: accident, reflex, or a medical episode; intent is the least tangible element and often the most attackable.
- No present ability: the client could not have applied the force alleged from where they were.
- False or exaggerated accusation: impeach with prior inconsistent statements, messages, and motive — anger, jealousy, or pre-emption of the client's own complaint.
- Mistaken identity: alibi, phone location data, and video where the incident was at night or the assailant obscured.
- Unlawful search, arrest, or interrogation: suppression under PC 1538.5; body-worn and dash camera footage often supplies the record.
- Involuntary intoxication, duress, or necessity where the facts support it.
- No injury or damage: not a defense to the elements, but central to keeping the charge a misdemeanor and to the strike analysis — a point we press.
Common questions
FAQs
01Did I have to actually hit someone?
No. ADW does not require contact or injury. It is enough that you did something that would probably have resulted in force being applied — a swing or a throw that misses can support the charge.
02Can an everyday object be a "deadly weapon"?
Yes, depending on how it was used. A bottle, pipe, baseball bat, car, or even a dog can qualify if used in a way capable of causing death or serious injury. Bare hands and feet are treated differently and fall under a separate subdivision.
03Will this count as a strike?
A felony conviction under this section counts as a strike, which can double the sentence on any future felony. A misdemeanor conviction does not. That is why the misdemeanor-versus-felony question is usually the central fight.
04Can a felony charge be reduced to a misdemeanor?
Often, yes. Because this is a wobbler, it can be filed as a misdemeanor, negotiated down, or reduced later by motion under Penal Code 17(b). The strength of the evidence, the object involved, any injuries, and your record all bear on it.
How we help
Talk to us before you talk to anyone else
A 245 usually turns on two questions: whether the object was used in a way capable of causing great bodily injury, and whether you were defending yourself. Those answers decide whether this is a misdemeanor or a felony with a strike attached, so we work them from the first week — the video, the injury photographs of both people, the medical records, the scene, and the account the complaining witness gave before they had time to settle on a version.
Felony filings are spread across Los Angeles County Superior Court, and we appear in all districts — Airport, Downtown (CCB and Metro), Van Nuys, Long Beach, Pasadena, Torrance, Inglewood, Compton, Downey, Norwalk, Alhambra, Bellflower, West Covina, Pomona, San Fernando, and the rest of the county.
These cases run through arraignment, discovery, the preliminary hearing, motions, and then negotiation or trial. The preliminary hearing is where a 245 is often shaped, and we prepare for it from the day we are retained. Aaron and Bianca both appear; the file is not handed off.
Law Office of Aaron P. McAllister — Aaron P. McAllister, Esq., responsible attorney. 3415 S Sepulveda Blvd, Suite 1100, Los Angeles, CA 90034. Attorney advertising. This page is general information about California law, not legal advice. Prior results do not guarantee a similar outcome. Submitting information through this website does not create an attorney–client relationship.