Firearms charges in California can carry serious consequences, including felony convictions, prison exposure, and long-term firearm prohibitions.

However, in some cases, strategic legal defense and procedural protections under California law can result in dismissal of charges.

The following case example demonstrates how careful preparation, investigation, and enforcement of a client's speedy trial rights can lead to dismissal of both felony and misdemeanor firearms charges.

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Step 1 – Case Evaluation and Consideration of Mental Health Diversion

Our firm represented a young man charged with felony assault with a firearm in violation of Penal Code Sections 245(a)(2) and 245(b).

The case arose after the client became involved in a verbal altercation with a woman. During the dispute, he believed the woman was retrieving a firearm from her vehicle.

Acting on that belief, he fired his weapon toward the woman's vehicle. Law enforcement later arrested him and charged him with felony assault with a firearm.

A separate incident also led to additional charges. During another confrontation involving a security guard, the client allegedly displayed a concealable firearm in public. As a result, he was charged with misdemeanor exhibiting a firearm in violation of Penal Code Section 417.

Our defense team immediately began a comprehensive evaluation of the case. We:

• reviewed the prosecution's case file

• obtained transcripts of witness statements

• conducted an independent investigation

• began preparing the case for trial

As part of our evaluation, we referred the client to a forensic psychologist for a mental health assessment.

The psychologist determined that the client did have a mental health condition. However, the client initially refused to participate in a mental health diversion program. Because participation is required for diversion under California law, he was not considered a suitable candidate at that time.

After discussing the potential benefits of diversion and the possibility of earning a dismissal through treatment, the client ultimately chose to proceed with trial.

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Step 2 – Our Criminal Defense Team Prepared and Announced Ready for Trial

Once the client decided to move forward with the trial, our defense team began preparing the case aggressively.

Trial preparation included:

• interviewing witnesses

• conducting background investigations on the alleged victims

• reviewing law enforcement reports and evidence

• drafting questions for direct and cross-examination

During our investigation, we uncovered significant credibility issues involving the alleged victim, including a criminal history and evidence suggesting dishonesty in prior matters.

When the case was called for trial, we announced that we were ready to proceed.

At that point, the prosecution encountered a significant problem: the alleged victim could not be located to testify. Without the victim's testimony, the prosecution was unable to prove the case. The court dismissed the case.

However, the prosecution refiled the charges under Penal Code Section 1387, which allows one refiling after a dismissal in certain felony cases.

Our defense team immediately prepared for trial again and once more announced readiness under the client's speedy trial rights.

Once again, the prosecution was unable to locate the alleged victim, who remained uncooperative and unavailable to testify.

Without the victim's testimony, the prosecution could not proceed to trial.

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Step 3 – Desired Outcome Reached: Case Dismissed

Both the felony and misdemeanor charges were ultimately dismissed due to violations of the client's speedy trial rights under:

• Penal Code Section 1381

• Penal Code Section 1381.5

• Penal Code Section 1382

Under California law:

• a misdemeanor charge generally may only be filed once, and if dismissed, it is typically barred from being refiled

• felony charges may sometimes be refiled once after an initial dismissal under Penal Code Section 1387

• if the felony case is dismissed a second time, further prosecution for the same offense is usually prohibited

Because the prosecution was unable to proceed within the required time limits, the court dismissed both the felony and misdemeanor firearms charges.

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Related California Firearms Crimes

Several California criminal statutes are closely related to firearms charges such as assault with a firearm and exhibiting a weapon. Prosecutors may file multiple charges depending on the circumstances of the incident and the available evidence.

Understanding these related offenses can help explain how firearm-related cases are often prosecuted in California courts.

Assault with a Firearm – Penal Code 245(a)(2)

Penal Code 245(a)(2) makes it a crime to assault another person using a firearm. An assault occurs when someone commits an act that is likely to result in the application of force against another person while having the ability to carry out that act.

Examples may include:

• firing a gun in the direction of another person

• pointing a loaded firearm during a confrontation

• attempting to shoot someone during an altercation

This offense is generally charged as a felony and may carry state prison time.

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Assault with a Semiautomatic Firearm – Penal Code 245(b)

Penal Code 245(b) specifically applies when the assault involves a semiautomatic firearm. Because semiautomatic weapons are considered more dangerous, this offense typically carries harsher penalties than standard assault with a firearm.

Possible penalties may include:

• three, six, or nine years in state prison

• additional sentencing enhancements depending on the circumstances

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Brandishing a Firearm – Penal Code 417

Penal Code 417 makes it illegal to draw, exhibit, or use a firearm in a rude, angry, or threatening manner in the presence of another person.

Common examples include:

• displaying a firearm during an argument

• threatening someone with a gun during a dispute

• pulling out a firearm in a public confrontation

Depending on the facts of the case, brandishing a firearm may be charged as either a misdemeanor or a felony.

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Negligent Discharge of a Firearm – Penal Code 246.3

Penal Code 246.3 makes it a crime to willfully discharge a firearm in a grossly negligent manner that could result in injury or death.

Examples may include:

• firing a gun into the air in a crowded area

• recklessly discharging a firearm near homes or vehicles

• firing a weapon without regard for public safety

This offense may be charged as either a misdemeanor or felony depending on the circumstances.

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Shooting at an Occupied Vehicle or Building – Penal Code 246

Penal Code 246 prohibits shooting at an occupied vehicle, occupied building, or inhabited dwelling.

Examples include:

• firing a gun at a moving vehicle

• shooting at a home where people are present

• discharging a firearm at an occupied structure

This offense is considered a serious felony under California law and can result in significant prison sentences.

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Carrying a Concealed Firearm – Penal Code 25400

Penal Code 25400 makes it illegal to carry a concealed firearm on one's person or inside a vehicle without proper authorization.

Common situations include:

• carrying a hidden handgun in a waistband or bag

• storing a concealed firearm in a vehicle without a permit

• transporting a concealed weapon in public without legal authorization

This offense may be charged as a misdemeanor or felony, depending on the circumstances and the defendant's criminal history.

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Possession of a Firearm by a Prohibited Person – Penal Code 29800

Penal Code 29800 prohibits certain individuals from possessing firearms, including:

• convicted felons

• individuals with certain violent misdemeanor convictions

• individuals subject to certain restraining orders

Possession of a firearm by a prohibited person is typically charged as a felony and can lead to significant prison exposure.

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Why Related Firearms Charges Matter

Firearm investigations often involve multiple criminal allegations arising from the same incident.

For example, a single case may involve charges for:

• assault with a firearm

• brandishing a weapon

• negligent discharge of a firearm

• possession of a firearm by a prohibited person

Because prosecutors frequently file several charges at once, each allegation must be carefully analyzed to determine whether the evidence actually supports the offense.

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Frequently Asked Questions

Can firearm charges be dismissed in California?

Yes. Firearm charges can be dismissed in California if the prosecution cannot prove the case beyond a reasonable doubt or if legal issues arise during the case. Common reasons for dismissal may include:

• lack of credible witness testimony

• insufficient evidence

• violations of the defendant's constitutional rights

• speedy trial violations

• unlawful searches or seizures

Each case depends on its specific facts and legal circumstances.

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What is assault with a firearm under California law?

Assault with a firearm is defined under Penal Code 245(a)(2). The offense occurs when someone commits an act with a firearm that could likely result in the application of force against another person.

Examples may include:

• firing a weapon toward another person

• pointing a loaded firearm during a confrontation

• attempting to shoot someone during a dispute

This offense is typically charged as a felony and can carry significant prison time.

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What happens if a key witness does not appear in court?

If a critical witness, such as the alleged victim, fails to appear in court, the prosecution may be unable to proceed with the case. Without necessary testimony, prosecutors may not have sufficient evidence to prove the charges.

In some situations, the court may dismiss the case if the prosecution cannot proceed within the required time limits.

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What are speedy trial rights in California?

Speedy trial rights are protections under California law that require criminal cases to proceed within certain time limits.

Key statutes include:

• Penal Code 1381

• Penal Code 1381.5

• Penal Code 1382

If prosecutors fail to bring a case to trial within the required time period, the court may dismiss the charges.

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Can prosecutors refile charges after a dismissal?

In some situations, prosecutors may refile charges after a dismissal.

For example:

• misdemeanor cases generally cannot be refiled after dismissal

• felony cases may sometimes be refiled once under Penal Code 1387

However, if a felony case is dismissed a second time, the prosecution is typically barred from filing the same charges again.

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What defenses may apply in firearms cases?

Several legal defenses may apply depending on the facts of the case. Common defense strategies may include:

• self-defense or defense of others

• lack of intent to harm

• mistaken identity

• insufficient evidence

• credibility issues involving witnesses

A defense attorney may also challenge police procedures, witness testimony, and the prosecution's evidence.

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Can mental health diversion lead to dismissal of firearm charges?

In some cases, mental health diversion may allow a defendant to receive treatment instead of criminal punishment.

If a defendant successfully completes the diversion program, the charges may be dismissed. However, participation in the program is voluntary and requires the defendant's agreement to treatment.

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Why is trial preparation important in criminal cases?

Thorough trial preparation allows defense attorneys to evaluate the strength of the prosecution's case and identify weaknesses in the evidence.

Preparation may include:

• interviewing witnesses

• reviewing police reports and evidence

• investigating the background of alleged victims

• preparing cross-examination questions

Strong preparation can sometimes lead to dismissal when prosecutors realize they cannot prove the case.

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What should someone do if they are charged with a firearms offense?

Anyone facing firearm charges should consider speaking with a criminal defense attorney as soon as possible.

Early legal representation can help:

• protect constitutional rights

• evaluate possible defenses

• negotiate with prosecutors

• prepare the case for trial if necessary

Firearm charges can carry severe penalties, so obtaining legal guidance early in the process is often critical.

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Aggressive Defense of Firearms Charges in California

Firearms allegations, such as assault with a firearm or exhibiting a weapon, can carry serious penalties. Successfully defending these cases often requires early investigation, careful preparation, and a willingness to go to trial.

At Eisner Gorin, our criminal defense attorneys conduct detailed case evaluations, investigate witness credibility, and aggressively enforce our clients' constitutional rights.

When prosecutors cannot prove their case or fail to comply with procedural requirements, we pursue dismissal of the charges whenever possible.

If you or a loved one is facing firearm-related charges in California, consulting with an experienced California criminal defense attorney can help protect your rights and develop a strategy for the best possible outcome.

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