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 firearm 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 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.
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.
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.
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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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.
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 trial. 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.
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.
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.
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.