Penal Code § 17500 PC – Possession of a Deadly Weapon with Intent to Assault

Penal Code § 17500 PC makes it a crime to have possession of a deadly weapon with the intent to assault another person. This is a misdemeanor punishable by up to 6 months in county jail and fines of up to $1000.00.

The language of the code section reads:

17500. Every person having upon the person any deadly weapon, with intent to assault another, is guilty of a misdemeanor.

Examples

• After a heated argument, Jill grabs a baseball bat and states that she wants to hit her boyfriend.
• Following some pushing at a bar, Tom takes a beer bottle and throws it at Aaron.
• After realizing his neighbor scratched his new car, Jean grabs a knife from inside his home and vows payback.

Whether or not an object is a deadly weapon is based upon the facts of a given case.

Defenses

In our experience, four effective defenses to get PC 17500 charges dismissed are:

1. you did not know you had a deadly weapon;
2. you did not intend to assault another person;
3. the weapon was not deadly; and/or
4. you had constructive possession (not actual possession) of the deadly weapon.

Our California criminal defense attorneys will discuss the following in this article:

• 1. What is possession of a deadly weapon with intent to assault?
• 2. Are there defenses to Penal Code 17500 PC?
  • 2.1. You did not know you had a deadly weapon
  • 2.2. You had no intent to assault anyone
  • 2.3. The weapon was not deadly
  • 2.4. You had constructive possession (not actual possession) of the deadly weapon
• 3. What are the penalties?
• 4. Related Offenses

California Penal Code 17500 PC makes it a crime to possess a “deadly weapon” with intent to assault another person.

1. What is possession of a deadly weapon with intent to assault?

California prosecutors have to prove three elements to show you violated Penal Code 17500 PC:

1. You carried a deadly weapon, or had one on your person (for example, in a pocket or bag);
2. You knew you had a deadly weapon; and,
3. You had the intention of assaulting another person with a deadly weapon. ^{1 2}

An assault is an attempt to commit a violent injury to someone else, even if no physical contact is achieved.³ For example, purposely throwing a lead pipe at someone to injure them and missing is considered assault.

Deadly weapons v. non-deadly weapons

California law is not clear-cut as to what constitutes a deadly weapon; it depends on the facts of the case.

Obvious deadly weapons include:

• Guns;
• Knives; and
• Brass knuckles (see Penal Code 21810 PC)

Meanwhile, everyday objects that can possibly be deadly weapons depending on the case include:

• Baseball bats;
• Bottles – either intact or broken; and
• Large rocks or stones

2. Are there defenses to Penal Code 17500 PC?

Here at Shouse Law Group, we have represented literally thousands of people charged with weapons offenses including possession of a deadly weapon with intent to assault. In our experience, the following four defenses have proven very effective with California prosecutors, judges and juries:

2.1. You did not know you had a deadly weapon

There can be no conviction unless you actually knew you had a deadly weapon. Therefore your charge should be dropped if, for example, someone planted the weapon in your coat or bag without your knowledge.

In these cases, we would compile such evidence as video surveillance footage and eyewitness testimony that shows your “lack of knowledge.”

2.2. You had no intent to assault anyone

Arguing that you had no intent to assault anyone is usually our strongest defense because the D.A. has no way to definitely show what was going on in your head. Typically prosecutors try to argue that you made threatening statements or some other “overt act” that indicates you intended to injure someone, though this is difficult to prove unless there were recordings or eyewitnesses.

Perhaps we can demonstrate you were carrying the deadly weapon for self-defense or were just planning to show it to someone. As long as there is a grain of reasonable doubt as to your intent, criminal charges should not stand.

Note that it is not a defense to PC 17500 charges that you were legally carrying the deadly weapon (such as with a CCW permit) since having an intent to assault automatically makes carrying it illegal.

2.3. The weapon was not deadly

Whether or not an object is a deadly weapon is based on the facts of a given case.

For instance if you are recycling a glass bottle, the bottle is not a deadly weapon; or if you are laying bricks, the bricks are not deadly weapons. They only become deadly if you intend to hurt someone with them.

We can hire a weapons expert to testify on your behalf that – in the particular circumstances of your case – whatever items you possessed did not rise to the level of a deadly weapon.

2.4. You had constructive possession (not actual possession) of the deadly weapon

California law draws a distinction between:

• actual possession, which is having an object on your person (such as carrying a gun); and
• constructive possession, which is having control over an object not in your immediate reach (such as owning a gun kept in a locked safe in your closet).

PC 17500 applies only to cases of actual possession of deadly weapons. Even if you intend to assault someone with the gun which you keep in a storage facility, you are not violating this statute because the gun at this point is only in your constructive possession.

In these cases, we would use video surveillance footage and eyewitness testimony to show that you were not carrying any deadly weapon at the time in question, and that any deadly weapons you own were out of your actual possession.

Possession of a deadly weapon with intent to assault is not a wobbler. It can be charged as only a misdemeanor in California.

3. What are the penalties?

Violating California Penal Code 17500 is a misdemeanor punishable by:

• Imprisonment in a county jail for up to six months; and/or,
• A fine of up to $1,000.⁴

In lieu of a jail term, a judge may impose misdemeanor probation (also called summary or informal probation).

3.1. PC 17500 as a plea bargain

Note that if you are facing felony charges (such as for assault with a deadly weapon or other more serious weapons crimes), prosecutors may be willing to reduce the charge down to deadly weapon possession with intent to assault as part of a plea bargain. This would be a legal victory because you would avoid:

• prison,
• a “strike” offense on your record, and
• possibly some immigration issues if you are a non-citizen.

In addition, having only a misdemeanor rather than a felony on your background check will greatly increase your employment prospects and chances of getting a professional license. Meanwhile, current professional license holders (such as doctors, dentists, and attorneys) are less likely to have their license revoked or suspended for only a misdemeanor.

4. Related Offenses

There are 17 crimes related to possessing a deadly weapon with the intent to assault. These are:

1. Brandishing a weapon or firearm (PC 417)
2. Brandishing firearm causing bodily injury (PC 417.6)
3. Assault with a deadly weapon (PC 245(a)(1))
4. Assault with a firearm (PC 245(a)(2))
5. Assault by means likely to produce great bodily injury (PC 254(a)(4))
6. Criminal threats (PC 422)
7. Using of a firearm in a sex crime (PC 12002.3)
8. Aiding or abetting a felony with a firearm (PC 12022.4)
9. Carrying a concealed firearm (PC 25400)
10. Carrying a loaded firearm (PC 25850)
11. Being a felon with a firearm (PC 29800)
12. Having bullets with an explosive agent (PC 30210)
13. Having assault weapons (PC 30600)
14. Possession of a .50 BMG rifle (PC 30610)
15. Having short-barreled rifles (PC 33215)
16. Having large-capacity magazines (PC 32310)
17. Being a felon with ammunition (PC 30305(a)(1))

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