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:
- You acted with a firearm1 in such a manner and by its nature would directly and reasonably result in the application of force upon another person
- Your act was intentional
- 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
- And when you acted, you had the present ability to apply force with the firearm
It is easy to discern a firearm as a device capable of projecting bullets or other projectiles. Examples are shotguns, pistols, rifles, machine guns2, semiautomatic3 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.
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.
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 $10,0005.
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 rifle6, it is 4, 8 or 12 years in state prison7.
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.
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
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 trial8. These are as follows:
- You had the reasonable belief that you or someone else was in imminent harm of being touched offensively or bodily injury
- You reasonably believed that the immediate use of force was necessary to prevent or to defend against that harm from occurring
- 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.
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.
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.
This simply means that the firearm was not loaded or was otherwise incapable of being fired.
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:
- No state prison time served
- All conditions of your sentence and probation have been completed
- No other criminal charges are pending
- You did not violate your probation though this is not necessarily a disqualifying condition
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.
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:
- Automatic qualification for a Governor’s Pardon
- Right not to be denied a professional license without cause
- Evidence of rehabilitation for prospective employers to consider
A Governor’s Pardon does restore all of your civil rights including the right to own and possess firearms, though these are rarely granted.
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 818-351-9555 for a free confidential consultation.
- California Penal Code 16520(a): [Firearm Defined ] – As used in this part, “firearm” means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. [↩]
- A machine gun is any weapon that (shoots/is designed to shoot/ [or] can readily be restored to shoot) automatically more than one shot by asingle function of the trigger and without manual reloading.] CALCRIM 875 [↩]
- California Penal Code 17140 [Semiautomatic Rifle Defined] – As used in Sections 16900 and 31910, semiautomatic pistol means a pistol with an operating mode that uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger. [↩]
- To Have Present Ability to Inﬂict Injury, Gun Must Be Loaded Unless Used as Club or Bludgeon. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [82 Cal.Rptr.2d 413, 971 P.2d 618 – CALCRIM 875 [↩]
- California Penal Code 245(a)(2) – Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment. [↩]
- California Penal Code Section 30530(a) 50 BMG Rifle Defined – As used in this part, .50 BMG rifle means a center fire rifle that can fire a .50 BMG cartridge and is not already an assault weapon or a machinegun. (b) A .50 BMG rifle does not include any antique firearm, nor any curio or relic as defined in Section 478.11 of Title 27 of the Code of Federal Regulations. [↩]
- California Penal Code 245(a)(3) – Any person who commits an assault upon the person of another with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment in the state prison for 4, 8, or 12 years. [↩]
- Right to Self-Defense or Defense of Another (Non-Homicide [with respect to acts involving California assault with a firearm]). (“The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.” [CALCRIM 3470] [↩]