11 Things You Should Know About Assault With A Firearm

California Penal Code 245(a)(2)

By: Diana Aizman

Assault With A Firearm is a serious offense under California law that can result in substantial state prison time and a strike on your criminal record. To be convicted under Penal Code 245(a)(2), the prosecution must prove beyond a reasonable doubt each of the following elements:

  1. You acted with a firearm in such a manner and by its nature would directly and reasonably result in the application of force upon another person
  2. Your act was intentional
  3. When you acted, you did so with the awareness of a reasonable person that your act would directly and probably result in the application of force on another person
  4. And when you acted, you had the present ability to apply force with the firearm

What is a Firearm?

It is easy to discern a firearm as a device capable of projecting bullets or other projectiles. Examples are shotguns, pistols, rifles, machine guns, semiautomatic and assault weapons. A BB gun or air pellet gun is not considered a firearm under this statute since they do not use combustion in expelling its projectiles.

What is Application of Force?

Force for purposes of California criminal law is any offensive touching regardless of how slight so long as it was not consented to and was done offensively. You also need not have touched the person so long as you intended to and did take some action that would have resulted in the application of force.

Intentional Conduct

Intent is part of this offense. It means willful or purposely. All that is needed is that your act was intended to or could have resulted in the application of force, regardless if you were merely trying to scare someone.

Present Ability

This refers to having a loaded firearm. If unloaded, you lacked the present ability to apply force though you can still be charged and convicted if you used the firearm to strike someone. If you use an unloaded firearm to take property away from someone, you can be guilty of robbery.

Examples of Assault with a Firearm

Pointing a loaded firearm at someone constitutes this offense, regardless of your stated intent to shoot that person since your act could have resulted in the application of force. Other examples include:

  • Pistol whipping someone regardless if the firearm was loaded
  • Shooting at someone though intentionally missing them
  • Waving a loaded firearm at a person

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Penalties for Assault with a Firearm

Generic firearms

Assault with a firearm is a “wobbler” offense and may be charged as a misdemeanor or felony if the firearm in question was generic in form. In other words, it was not a semiautomatic or assault weapon. The DA will consider your criminal history and if any aggravating or egregious circumstances accompanied the crime in determining whether you charge you with a felony or not.

As a misdemeanor, you face up to 6 months in jail and a fine up to $1,000. As a felony, state prison time of 2, 3 or 4 years may be imposed and a fine up to $10,000.

Assault, semiautomatic, .50 BMG rifle, or machine gun

If any of these weapons were used, then you will be charged with a felony. Punishment is 3, 6 or 9 years for a semiautomatic. For an assault weapon, machine gun or .50 BMG rifle, it is 4, 8 or 12 years in state prison.

Anyone who is convicted of any felony, regardless if it is a weapons or gun crime, is prohibited from possessing or owning a firearm or ammunition.

Sentence Enhancements

Your prison time will be enhanced if the offense was committed against a peace officer or firefighter. The officer or fireman must have been engaged in his or her duties at the time and the defendant knew or should reasonably have known the person was so designated and was engaged in such activities.

The sentence depends on the type of firearm used:

  • 4, 6 or 8 years in state prison if generic firearm used
  • 5, 7 or 9 years in state prison if semiautomatic weapon used
  • 6, 9 or 12 years if machine gun, assault or .50 BMG rifle used

Also, a strike will be imposed on your criminal record. Should you commit any subsequent felony, your sentence is doubled. A third strike results in a sentence of 25 years to life.

Should you be convicted of assault with a firearm as a felony and you personally used the firearm in committing the crime, which is often the case, then you will face enhanced or increased prison time as follows pursuant to PC 12022.5:

  • 3, 4 or 10 years if you used a generic firearm
  • 5, 6 or 10 years if you used an assault weapon or machine gun
  • A strike is added to your criminal record

Legal Defenses

One of the more common defenses in many criminal assault cases including those involving firearms is that of self-defense.

The elements of self-defense need to be presented and proved by the defendant at trial. These are as follows:

  1. You had the reasonable belief that you or someone else was in imminent harm of being touched offensively or bodily injury
  2. You reasonably believed that the immediate use of force was necessary to prevent or to defend against that harm from occurring
  3. You only used that amount of force that was reasonably necessary to prevent or to defend against the harm

Also, once the harm was neutralized or you were no longer in imminent danger, you must not continue to use the force you were using or it may be considered excessive. For instance, if the offender is tied up or incapacitated, you cannot assault the person.

Lack of Intent

This does not mean that you aimed a loaded firearm at someone with no intent to fire the weapon or to strike the person with it. An example is absent mindedly pointing the weapon at someone or doing so while arguing or otherwise handling the gun with no apparent intent to point the gun at another person.

False accusations

Usually, there must be more than just the accusation of another person that you pointed a weapon at them for you to be convicted, especially if that person had a motive to fabricate the allegation.

No present ability

This simply means that the firearm was not loaded or was otherwise incapable of being fired.


Record Expungement For Assault With A Firearm

If you were convicted of a felony under PC 245 and served state prison time, you are not eligible for expungement but may apply for a Certificate of Rehabilitation.

You may have your record expunged if you did not serve any state prison time, such as for a misdemeanor conviction under PC 245(a)(2) where a generic firearm was used. If you were convicted of a felony under this code section but were fortunate enough to not serve time in state prison, then you are eligible as well. The expungement eligibility process includes:

If you did violate your probation, you will have to demonstrate how an expungement will benefit you and your family. Also, the court will look at the nature of the violation, how long you were on probation and your overall criminal record.

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Certificate Of Rehabilitation

If you were convicted of a felony and served time in state prison, you can still file for Certificate of Rehabilitation, which offers you many of the same benefits as an expungement. You do have to wait a minimum of 7 years after your fulfilled all conditions of your sentence and probation.

You generally have to appear in court if requesting this relief so the court can question you about your activities and conduct since you were released from probation and your future intentions. You must also have been a California resident for the past 5 years and not re-offended. The certificate does offer you:

A Governor’s Pardon does restore all of your civil rights including the right to own and possess firearms, though these are rarely granted.

Related Crimes

There are a number of similar or related offenses to Assault with a Firearm that a defense attorney may negotiate down to a lesser offense or which may not satisfy all the elements of PC 245(a)(2) but do satisfy those of another criminal offense.

Assault with a deadly weapon–PC 245(a)(1)

The elements of this crime are similar to PC 245(a)(2) except that the weapon used was not a firearm. The elements of this crime include:

  1. You performed an act which by its nature would likely result in the application of force to another person
  2. You engaged in an act in which a reasonable person would believe he or she would be physically harmed
  3. You used a weapon other than a firearm or used enough force that was likely to product great bodily harm to another
  4. You acted with intent
  5. You possessed the present ability to carry out the physical act

A deadly weapon is usually a knife, metal object or other instrument that can cause serious injury if applied forcefully. For purposes of the law, a deadly weapon may be using your dog to attack someone or employing an object such as a pen, which if used aggressively, can lead to puncturing the skin or permanently damaging an eye.

Assault with a deadly weapon is a “wobbler” offense so that the DA has discretion to charge it as a misdemeanor or felony depending on the facts of the case, the weapon used, the harm sustained and the defendant’s criminal history.

If a misdemeanor, the maximum jail sentence is one year along with a fine up to $1,000.

As a felony, the sentence is 2, 3 or 4 years in state prison.

Misdemeanor Assault-PC 240

You may charged with assault as a misdemeanor as a lesser offense, which does not carry state prison time and has a maximum sentence of one year in county jail and a fine up to $1,000. In many cases, the defendant is placed on probation or serves a short time in jail along and then placed on probation.

The elements of assault are the same as those for Assault with a Firearm except that no firearm is used.

Attempted Murder—PC 664

The DA has the discretion in an assault with a deadly weapon or with a firearm to charge you with attempted murder. The elements are:

  1. You took a step towards killing another person that was more than just planning
  2. You had the intent to kill another person

This offense is categorized as First Degree Attempted Murder and Second Degree Attempted Murder. First degree means that you planned to kill someone or that it was premediated. You face life in prison with the possibility of parole. If a peace officer, firefighter or some other statutorily designated person was the victim or target, there is a 15 year mandatory minimum sentence.

Second degree means you lacked the requisite premeditation or deliberateness. The sentence is 5, 7 or 9 years in state prison.

Battery –PC 242 and Battery Causing Serious Bodily Injury-PC 243(d)

Battery is simply touching a person in an offensive or harmful manner but without the requirement that the victim have suffered any injury. It is a misdemeanor with up to one year in jail and/or a fine of up to $1,000

If your act does inflict an injury, you can be charged with Battery Causing Serious Bodily Injury, which includes such injuries as lacerations, a broken bone, dislocated shoulder, black eye, concussion or other visible injury. This is charged as either a misdemeanor or felony. If a felony, you face 2, 3 or 4 years and a fine up to $10,000.

Brandishing a Firearm or Weapon-PC 417

Brandishing means that you did not point the weapon at another person but that you handled the firearm or other weapon in a threatening manner so as to scare or intimidate that person. This is charged as a misdemeanor with the possibility of jail time of up to 6 months or up to one year.

What You Should Do Now

If you have been arrested for a misdemeanor and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending misdemeanor case with an attorney contact the Aizman Law Firm at 818-938-1274 for a free confidential consultation.

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