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Penal Code Section 245(a)(1) and Its Application

California law under Penal Code section 245(a)(1) sets forth that any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding $10,000, or by both the fine and imprisonment.

The crime of assault with a deadly weapon can be filed as a misdemeanor or a felony and this office has seen it charged as both. Whenever we see the charge as a misdemeanor we always get concerned because we know that it could be upgraded to a felony. The reason that concerns us so much is that we know that the charge as a felony is a felony strike. Sometimes the best outcome in the case will be to get out with a misdemeanor before the case gets upgraded to a felony.

A charge that can be filed as a felony or a misdemeanor as what is called a wobbler. A wobbler offenses is one that could be charged either way and whether it will be charged as a misdemeanor or felony will depend on how severe the offense was. The prosecutor will make this decision based on mitigating or aggravating factors that may be present with regard to the facts in the case. One aggravating factor that the District Attorney may consider is the type of weapon or instrument that was used during the crime. If the weapon used was a handgun or rifle the person charged may receive a sentence enhancement up to nine years in California State prison. Again, the type of weapon will have an impact on the penaties. The District Attorney will also consider the extent of the alleged victims’ injury and whether or not the alleged victim was a protected person.

The prosecutor may also consider how vulnerable the person was who was the alleged victim of the crime. If the crime is committed on a child or a disabled person, the charge may be more likely to be filed as a felony. Mitigating factors might include things like mental health, extreme pressure, or other sympathetic reasons for why this situation happened.

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