Penal Code 245(a)(4) describes the crime of committing assault through the application of force likely to cause great bodily injury (GBI). The offense involves not just offensive or harmful touching but also intent to cause substantial harm. The prosecution can still have you convicted even if the “force” missed the victim or did not cause severe injuries. For instance, you are still guilty of violating Penal Code 245(a)(4) if you throw a knife at your friend but miss. The prosecution simply needs to prove your intent and present ability to cause GBI.
An assault by means likely to produce great bodily harm is a wobbler offense. The prosecution will always impose felony charges if a victim suffers significant bodily injury. Note that a felony charge attracts additional penalties under California’s Three Strikes Law. It is necessary to work with a skilled attorney who can help you protect your freedom and best interests.
Penal Code 245(a)(4) Defined
Penal Code 245(a)(4) makes it a crime to commit assault using means that can cause substantial injury. Essentially, the statute criminalizes the means employed by an assault perpetrator.
Under assault laws, “assault” is the offense of attempting to injure another person violently. Because bodily harm does not need to occur, you can be convicted of assault by merely throwing a crumpled paper at the alleged victim. However, you are likely to face charges under Penal Code 245(a)(4) if the means can cause substantial bodily injury or death.
Here are the elements the prosecution must prove beyond a reasonable doubt to charge you for violating Penal Code 245(a)(4):
- Your committed assault by unlawfully using force against the alleged victim
- You acted willfully or deliberately
- When you acted, you knew that any reasonable person would believe that your actions were capable of causing direct or probable application of force.
- You had the present ability to use force likely to cause great bodily harm
- Your actions were not aimed at self-defense or the defense of another
The prosecution can obtain a conviction by proving your intent, present ability, and means likely to cause great bodily harm. Again, it is not necessary to prove that you inflicted injury. You are guilty of an offense as long as the force used had a reasonable likelihood of causing substantial harm.
Let us have a look at some of the essential terms and phrases used to describe the statute:
Application of Force
The “application of force” describes any form of offensive or harmful touching. Under Penal Code 245(a)(4), the means used to touch an alleged victim must have the ability to cause significant injury.
Great bodily harm (GBI) does not necessarily need to be an injury that causes permanent impairment or disfigurement. Any of the following injuries constitute GBI:
- Broken nose
- Fractured bones
- Concussion or passing out
- Black eye bruises
- Contusions or severe swelling
- Bloody injury
- Burns, cuts, or wounds that cause heavy bleeding or permanent scarring
Willfully
The term “willfully” means acting on purpose or deliberately. However, you are still guilty of an offense even if you had no intentions of breaking the law or causing harm to another person.
Present Ability
Present ability is often established by considering the proximity between a victim and the assault perpetrator. For instance, it is impossible to face assault charges if a victim is too far to sustain any injury despite the weapon used or the amount of force applied by a defendant.
Also, the prosecution must establish the amount of force used. For instance, if you throw a knife lightly, the power used can show a lack of the present ability to cause GBI.
On the other hand, the prosecution can seek a conviction if your victim was within reasonable proximity and you used enough force to cause great bodily harm.
For example, Peter picks up a huge brick and angrily throws it at Andrew, standing just a few steps away. Andrew ducks the brick that hits a nearby tree, leaving a few broken branches and a massive mark on the bark. The evidence shows that Andrew would have suffered severe injury if he did not duck the brick.
This shows that even though the victim suffered no harm, Peter is guilty of assault by means likely to produce great bodily injury. The prosecution will consider the trier-of-facts in a case before deciding whether to impose misdemeanor or felony charges.
Aware That an Action Is Capable Of Causing Direct or Probable Application of Force
The above element emphasizes that it is not necessary to have the intent to commit a crime. It is enough to know that under the circumstances, your actions had a good chance of leading to the direct or probable application of force capable of causing great bodily harm.
Penalties For Violating Penal Code 245(a)(4)
Violating Penal Code 245(a)(4) is a wobbler offense that prosecutors can charge as a misdemeanor or felony based on the facts of a case and a defendant’s criminal history.
A misdemeanor conviction is punishable by:
- Incarceration for up to 1 year in county jail
- A fine not exceeding $10,000
If the prosecution imposes felony charges, a conviction could lead to the following penalties:
- A jail sentence in state prison for 2, 3, or 4 years
It is also essential to know that violent felonies, including a felony Penal Code 245(a)(4), are subject to California’s Three Strikes Law. The statute can significantly increase the jail time, especially for a defendant convicted of other felonies or violent crimes in the past.
Best Defenses To Fight Penal Code 245(a)(4) Charges
Assault by means likely to produce great bodily harm is a violent crime. Prosecutors will always seek to impose the maximum charges to promote public safety and deter others from similar actions. It remains imperative to work with a skilled and experienced criminal defense attorney who can devise a suitable defense strategy based on the facts of your case.
Here are some of the best defenses your lawyer can use to fight Penal Code 245(a)(4):
Self-Defense
One of the best defenses to see the court drop your charges is self-defense. Your attorney must demonstrate to the court that you had a reason to believe that you or someone else was faced with an impending threat of physical harm. Moreover, you must have used only enough force to protect yourself from danger.
Even if an incident involved self-defense, you are likely to lose the case if you used more force than required to neutralize your alleged attacker. For instance, you cannot justify stubbing your attacker five times because you were in fear of becoming a victim of domestic violence.
Insignificant Injury
Claiming that the victim did not suffer great bodily harm is not a complete defense. However, it can have you charged with a lesser offense or even a misdemeanor instead of a felony.
For example, Craig and Calvin are in a heated argument. Craig throws a slap at Calvin, who simply clicks and leaves for work. Calvin did not need to seek any medical care, which implies that Craig did not use force likely to cause great bodily harm. Depending on other facts of a case, Craig may still face simple assault charges.
A prosecutor could prove the element of GBI if the object or force applied could cause substantial injuries. This includes internal injuries, severe disfigurement, or significant loss of blood. If Craig did not use force that could produce any of these injuries, a competent attorney could help negotiate for a lesser charge.
No Assault
You do not have a case to answer if the prosecution cannot prove that you committed assault. One of the elements the prosecutor must prove beyond a reasonable doubt is that a defendant committed an underlying assault. Charges under Penal Code 245(a)(4) only come in when the force used was sufficient to cause great bodily injury.
Therefore, the accused cannot face charges if the assault never happened.
For example, Grace and Ronald are in an argument when Robert opens a safe to remove divorce papers. He lifts the gun in the safe, pulls out the documents underneath, and hands them over to Grace before asking her to leave. He could have been angry when he possessed the gun, but an assault did not happen. There are no grounds to charge Ronald for violating Penal Code 245(a)(4) or any other statute.
No Intent
A critical element that the prosecution must prove beyond a reasonable doubt is that you had the “intent” to cause the victim physical harm. If this was not your intention, it could be challenging for the prosecution to obtain a conviction. You do not have to serve time for a purely accidental incident.
For example, Liam and Robert buy a ball and playfully decide to hit it on their way home. The path is deserted, so the boys see no harm in making hard kicks to throw the ball further down the road. Unfortunately, Jane enters the trail just before the ball hits her tummy. Jane suffers severe bruises and takes a few days off school to nurse her wounds.
Even though the victim suffered great bodily harm, the defendant had no intent to inflict injury. The incident was accidental, and while it is okay for the victim to seek restitution, it is unfair for the accused to serve time for assault by means likely to cause severe bodily harm.
Mistaken Identification
Sometimes, a defendant faces allegations based on mistaken identity. It could be that assault by means likely to cause great bodily harm happened in a deserted alley. Poor lighting, panic, or even cross-racial identification can lead a witness to mistake you for the actual perpetrator of a crime.
The defendant bears the burden of proof when arguing using the “mistaken identity” defense. Your attorney can help you prove that you did not commit assault by providing an alibi. If you were at work or partying with your friends at the time of an incident, it is evident that you were not the one committing assault along the deserted alley.
Related Offenses
Depending on the facts of a case, the prosecution can charge the following related offenses alongside or instead of assault with means likely to produce great bodily harm:
Simple Assault — Penal Code 240 PC
Sometimes, a skilled lawyer can present arguments that allow your charges to be reduced to simple assault. Simple assault is a lesser crime described as an unlawful “attempt” to injure another person violently.
The following are elements the prosecution must prove beyond a reasonable doubt to convict you of simple assault:
- You committed an act that can cause the direct or application of force against the victim
- Your actions were deliberate or willful
- You knew that your acts would cause a reasonable person to apprehend direct or possible harm through the application of force
- You had the present ability to injure your victim violently
Unlike Penal Code 245(a)(4), Penal Code 240 is a misdemeanor offense. It is punishable by:
- A jail term not exceeding 6 months
- A maximum fine of $1,000
Assault With a Deadly Weapon —Penal Code 245(a)(1)
Under Penal Code 245(a)(1), it is a crime to attack or attempt to attack another person using a deadly weapon. The term deadly weapon describes any object or weapon that can cause death or severe injury. This includes weapons like guns, knives, and other objects that can cause severe bleeding, permanent scarring, internal injuries, or disfigurement.
The elements of Penal Code 245(a)(1) are as follows:
- You committed an act that by nature can cause the direct or probable application of force against your victim
- You used a lethal weapon or applied force likely to cause great bodily harm
- Your actions were deliberate and willful
- You knew that your actions would cause any reasonable person to believe that they risked direct or probable force being applied against them.
- You had the present ability to use the lethal weapon or apply force likely to cause great bodily harm.
Again, the prosecution can have you convicted even if an incident does not lead to injuries. It is enough to establish that your actions were “likely” to cause substantial harm.
Violating Penal Code 245(a)(1) is a wobbler offense if the weapon used was anything else but a firearm. When charged as a misdemeanor, a conviction can lead to the following penalties:
- Imprisonment in county jail for up to 1 year
- A fine not exceeding $1,000
A felony conviction for assault with a deadly weapon is punishable by:
- Incarceration in state prison for up to 4 years
- A $10,000 maximum fine
Assault With A Firearm — Penal Code 245a2
Penal Code 245(a)(2) makes it a crime to commit assault using a firearm such as a shotgun, rifle, pistol, machine gun, or semiautomatic handgun. The term “using” a gun applies to anything, including pointing the firearm at your victim, pistol-whipping, striking or shooting, and missing the target.
For the prosecution to convict you of assault with a firearm, they must prove that the following is true beyond a reasonable doubt:
- You used a gun to perform an act that, by nature, can cause the direct or probable application of force against the victim
- Your actions were deliberate or willful
- You knew that your actions would cause any reasonable person to believe they were at risk of the probable or direct use of force
- At the time of an incident, you had the present ability to apply force against your victim using the firearm
Assault with a firearm is a wobbler offense if the defendant used a generic gun. A misdemeanor conviction is punishable by:
- Imprisonment in county jail for 6 months or 1 year
- A fine not exceeding $1,000
If you are convicted of a felony, the punishment will include:
- A state prison sentence for 2, 3, or 4 years
- A $10,000 maximum fine
Prosecutors always seek to impose felony charges when a defendant is accused of assault with a firearm. However, there are harsher felony penalties to expect when the firearm involved is not the usual generic gun.
When assault involves a machine gun, semi automatic firearm, .50 BMG rifle, or any other non-generic gun, a conviction attracts the following penalties:
- A state prison sentence for 3, 6, or 9 years when the firearm used is a semiautomatic gun
- Incarceration in state prison for 4, 8, or 12 years if the weapon used is an assault weapon, .50 BMG rifle, or machine gun.
Find an Assault Defense Attorney Near Me
California assault laws are complex. There is a thin line between different types of assault, and what seems like a “simple” incident could quickly leave you battling felony charges. Because of the severe and far-reaching repercussions of a conviction for violating Penal Code 245(a)(4), it is in your best interests to contact Leah Legal as soon as you are arrested. We will evaluate your case, provide meaningful advice and employ the best defense strategies to achieve the best possible outcome. If you face assault charges in Van Nuys, CA, call us at 818-484-1100 and let us give you a real chance at dodging the devastating and lifelong consequences of a Penal Code 245(a)(4) conviction.