SAN BERNARDINO CRIMINAL DEFENSE · SINCE 1974
Assault With a Deadly Weapon and Battery Defense in San Bernardino
An assault or battery charge can range from a misdemeanor to a felony strike, depending on the weapon, the injury, and how the prosecution files the case. Learn what the charge means and how it can be challenged.
Assault, battery, and aggravated assault are different charges.
Under Penal Code section 240, an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on another person. No one has to be touched or hurt. A battery under section 242 is any willful and unlawful use of force or violence on another person. Simple assault and simple battery are misdemeanors, punishable by up to six months in county jail.
The charges become more serious with a weapon or an injury:
- Assault with a deadly weapon other than a firearm, section 245(a)(1), can be charged as a misdemeanor or a felony with a prison term of two, three, or four years.
- Assault with a firearm, section 245(a)(2), carries two, three, or four years in prison, or six months to one year in county jail.
- Assault with a machinegun, assault weapon, or .50 BMG rifle, section 245(a)(3), is a felony with four, eight, or twelve years.
- Assault by force likely to produce great bodily injury, section 245(a)(4), can be a misdemeanor or a felony with two, three, or four years, even with no weapon involved.
- Battery with serious bodily injury, section 243(d), can be a misdemeanor or a felony with two, three, or four years.
Great bodily injury allegations and strike consequences.
Prosecutors often add a great bodily injury allegation under Penal Code section 12022.7. If the person personally inflicted a “significant or substantial physical injury” during a felony, the enhancement adds three years. It adds more when the injury caused a coma or permanent paralysis, when the victim was 70 or older, when the victim was a child under five, or when the circumstances involved domestic violence.
Strike consequences matter just as much. Felony assault with a deadly weapon or firearm under section 245 is listed as a serious felony, and so is any felony in which the person personally inflicts great bodily injury or personally uses a dangerous weapon. A felony with a great bodily injury enhancement found true is also a violent felony. A conviction can therefore count as a strike in any future case.
California Penal Code sections in assault cases.
| Code section | Why it matters |
|---|---|
| Penal Code § 240 | Defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on another. |
| Penal Code § 242 | Defines battery as any willful and unlawful use of force or violence on another person. |
| Penal Code § 243(d) | Battery causing serious bodily injury, such as a fracture, concussion, or loss of consciousness. It can be charged as a misdemeanor or a felony. |
| Penal Code § 245(a)(1)–(4) | Aggravated assault: with a deadly weapon, with a firearm, with a machinegun or assault weapon, or by force likely to produce great bodily injury. |
| Penal Code § 12022.7 | Great bodily injury enhancement: three to six additional years depending on the injury and the victim, served consecutively. |
| Penal Code § 1192.7(c) | Lists serious felonies, including felony assault with a deadly weapon or firearm, that count as strikes. |
Whether a charge is filed as a misdemeanor or a felony, and whether it can later be reduced, depends on the statute, the facts, and the person’s record.
Self-defense and other ways to test the prosecution’s case.
California law allows a person to use reasonable force to defend themselves or someone else against an imminent threat of injury. When self-defense is raised, the prosecution generally has to prove beyond a reasonable doubt that the force was not lawful. The questions are often whether the fear of harm was reasonable and whether the force used was more than reasonably necessary.
Other issues that may matter, depending on the case:
- Whether the object was a “deadly weapon” as it was actually used. Ordinary items can qualify, but only based on how they were used.
- Whether the force was likely to produce great bodily injury, and whether any injury was actually “great” or “serious” under the statute.
- Identification, conflicting witness accounts, and what video, 911 calls, and medical records show.
- Whether the event was an accident rather than an unlawful attempt to injure.
A reduction to a lesser charge, a misdemeanor resolution, dismissal, and trial are different possible paths. Which ones are realistic depends on the evidence.
What to expect in San Bernardino County.
Assault cases in the San Bernardino area are prosecuted by the San Bernardino County District Attorney and heard at the San Bernardino Justice Center, 247 W 3rd St. After an arrest, people are often booked at the Central Detention Center or West Valley Detention Center. In felony cases, a preliminary hearing usually follows the arraignment unless it is waived. Court information is available from the San Bernardino Superior Court.
James M. Glick has practiced criminal defense since 1974. He is a San Bernardino native, and about 99% of his cases are in San Bernardino County.
Common assault and battery questions
Is assault with a deadly weapon a felony in California?
It can be. Assault with a non-firearm deadly weapon under Penal Code section 245(a)(1) and assault by force likely to produce great bodily injury under 245(a)(4) can be charged as either a misdemeanor or a felony. Assault with a firearm also allows a county jail term. Assault with a machinegun or assault weapon is a felony only. The filing decision depends on the facts and the person’s record.
Is assault with a deadly weapon a strike?
Felony assault with a deadly weapon or a firearm under section 245 is listed as a serious felony in Penal Code section 1192.7(c), which makes it a strike. A misdemeanor conviction is not a strike. Assault by force likely to produce great bodily injury is not listed by itself, but it can become a strike if great bodily injury is personally inflicted or a weapon is personally used.
Can I be charged with assault if no one was hurt?
Yes. Under Penal Code section 240, an assault is an unlawful attempt, with present ability, to commit a violent injury. Contact and injury are not required. Injury does matter for other charges and allegations, such as battery with serious bodily injury under section 243(d) or a great bodily injury enhancement under section 12022.7.
Can assault charges be dropped if the other person does not want to press charges?
The decision to file or dismiss belongs to the San Bernardino County District Attorney, not the alleged victim. A complaining witness’s wishes and willingness to testify can affect how a case develops, but they do not end it automatically. Do not contact a witness about the case if a protective order is in place; talk with your attorney instead.
How does self-defense work in an assault case?
Self-defense generally applies when a person reasonably believed they or someone else faced imminent danger of injury and used no more force than was reasonably necessary. Once the issue is raised by the evidence, the prosecution generally must prove beyond a reasonable doubt that the person did not act in lawful self-defense. Witness accounts, video, and injuries often decide how strong the claim is.
Get a clear read on the charge and the evidence.
Tell the office what you have been charged with and when your next court date is. Call James M. Glick’s office at (909) 889-1446 to request a consultation.
Call the OfficeGeneral California legal information, reviewed 2026-10-18. The charge, facts, prior record, and law applicable to the case control the available defenses and remedies. Past results do not guarantee a similar outcome. Contacting the office does not establish an attorney-client relationship.