Assault with a Firearm - California Penal Code Section 245(a)(2)
Assault with a firearm charges are covered under California Penal Code Section 245(a)(2). It’s another type of an assault offense that will be filed by the prosecutor if you allegedly used a firearm in the commission of an assault crime. It’s very similar to assault with a deadly weapon under California Penal Code Section 245(a)(1), but the main difference is that the alleged assault was committed with a “deadly weapon” other than firearm and that the assault was committed with enough force that it was likely to produce great bodily injury.
A conviction could result in harsh legal consequences that will make it difficult for you to secure employment and limit other opportunities for many years. If you have a prior felony conviction, you could also be at risk of getting a ‘strike” on your record under California’s Three Strikes Law.
At Eisner Gorin LLP, our Los Angeles criminal defense law firm has successfully represented numerous clients who were accused of assault of with a firearm charges. If you have been accused of violating California Penal Code Section 245(a)(2), or any other type of violent crime, contact our attorneys to review the details of your case.
In order to understand this criminal offense, you first need to know exactly what “assault” means. Under California law, “assault” is described as unlawfully attempting to commit an injury on another person when you have the ability to carry it out.
It’s important to note here that the other person does NOT have to sustain an actual injury to be charged with assault with a firearm. In fact, just pointing a loaded firearm at another person could be sufficient cause to support charges under PC 245(a)(2). A common example of an assault with a firearm crime in Los Angeles County includes a situation two people become involved in an argument in a bar and one invites the other to the parking lot to settle the matter.
After moving to the parking lot, one of the men retrieves a firearm from their car and starts waving and pointing it at the other person with whom they were arguing. Now that we have covered a general overview of assault with a firearm law, let’s take a closer look at the legal definition, penalties, and defenses below.
Legal Definition of Assault with a Firearm
Under California Penal Code Section 245(a)(2), assault with a firearm is legally described as follows:
Anyone who commits an assault on another person with a firearm shall be punished by imprisonment in a California state prison for 2, 3, or 4 years, or in county jail for no less than 6 months, but not more than 1 year, or by both a fine up to $10,000 and imprisonment.
As stated above, an “assault” is an unlawful attempt, with ability to do so, to commit a violent injury on another person. A “firearm” is defined under California Penal Code Section 12001.
It’s any device designed to be used as a weapon where a projectile can be expelled through a barrel. In other words, it’s a handgun, shotgun, revolver, rifle, or any other type of gun. As you can see from the definition above, use of a “firearm” is the difference between assault with a firearm charges and simple assault.
Elements of a PC 245(a)(2) Crime
In order for the Los Angeles County prosecutor to obtain a conviction, they must be able to prove all the elements of the crime, beyond any reasonable doubt. These include the following:
- You acted with a firearm in a manner that could reasonably result in the application of force on another person
- Your act was willful and intentional
- At the time you acted, you were aware of the fact a reasonable person would believe your act would directly and most likely result in the application of force on that person
- At the time you acted, you had the ability to apply force with the firearm
The “application of force” means any harmful or offensive touching. As stated above, it’s important to remember that PC 245(a)(2) does not require the touching to cause any type of physical injury.
Typically, the firearm must loaded in order to sufficiently support charges of assault with a firearm charges. If the prosecutor can’t prove each and every elements of the crime above, you should not be found guilty of assault with a firearm under California Penal Code Section 245(a)(2). If you need additional information, contact a Los Angeles criminal defense lawyer at our law firm.
Closely Related California Offenses for PC 245(a)(2)
Penal Code Section 240 – Simple Assault
Penal Code Section 245(a)(1) – Assault with a Deadly Weapon
Penal Code Section 245(a)(4) – Assault Likely to Produce Great Bodily Injury
Penal Code Section 417 – Brandishing a Weapon
Penal Code Section 664/187 – Attempted Murder
Penal Code Section 217.1 – Assault on a Public Official
Assault with a Firearm - Legal Penalties
Assault with a firearm under Penal Code Section 245(a)(2) is a “wobbler,” meaning the prosecutor has the discretion to file the case as either a misdemeanor or felony offense. The level of the charge and legal penalties will depend on what type of firearm was used and your criminal history.
If it was an ordinary firearm, you will most likely face misdemeanor charges. If convicted, you will face 6 months to 1 year in a county jail, a fine up to $1,000, or both jail and a fine. If you are convicted of a felony case of assault with a firearm, the legal penalties include up to 4 years in a California state prison, a fine up to $10,000, or both jail and a fine.
Legal penalties are more severe if you used an assault weapon, such as a semiautomatic firearm, machine gun, or 50 BMG rifle. In situations where these types of weapons were used, it’s always a felony offense.
If convicted, the California state prison sentence will increase. If the victim was a law enforcement officer or fireman engaged in the performance of their duties, your assault with a firearm case will always be felony crime. Finally, California's firearms sentencing enhancement under Penal Code Section 12022.5 applies to assault with a firearm charges under Penal Code Section 245(a)(2).
Assault with a Firearm - Legal Defenses
There are a wide range of legal defense strategies our criminal lawyers can utilize on your behalf against charges of assault with a firearm. These include:
Your act was not willful – As state above in the elements of the crimes, assault with a firearm conviction requires a willful act against another person. In some cases, our lawyers might be able to show did not act willfully, and you should be able to avoid a conviction. For example, you may have just been careless and it was not actually an aggressive willful act with a firearm.
Self defense – In certain cases, our attorneys might be able to prove you were acting in self-defense or defense of others. California law allows you to protect yourself if had a reasonable belief you or another person was in imminent danger of suffering bodily injury and your believed you had to use force to prevent the injury, and no more force than necessary was used.
False accusation – It’s important to note again that assault with a firearm charges don’t require a victim to suffer an injury. Therefore, it’s not uncommon for someone to face false accusations that were motivated by jealously, revenge, or anger. Our lawyers might able to prove you were falsely accused and wrongfully arrested.
Real Assault with Firearm Case Results
Our Los Angeles criminal defense law firm has obtained numerous successful case results in real assault with a firearm case, For example:
San Fernando Superior Court – Jury Acquittal – Assault with a Deadly Weapon: Our client was facing four charges of assault and domestic violence and was looking at up to 3 years in a California state prison. After a 2 week trial, the jury reached a Not Guilty verdict within 10 minutes of starting deliberations. The Judge ordered the police to seal and destroy all police reports of the incident pursuant to California Penal Code Section 851.8.
Van Nuys Superior Court – Assault with a firearm and felony threats charges will be dismissed after completion of therapy program: Our client, a licensed pharmacist was charged with threatening to kill a friend at gunpoint. After our lawyers conducted a preliminary hearing and cross-examined the witnesses, all felony charges were dismissed by the prosecutor. Our client will also have the misdemeanor weapons charge dismissed, with no conviction on their record, after completion of therapy sessions.
Contact our Los Angeles Criminal Attorneys
If you are facing charges of assault with a firearm, in violation of California Penal Code Section 245(a)(2), call the Los Angeles criminal defense lawyers at Eisner Gorin LLP immediately. We will closely review the details of your situation in order to determine legal options. Our law firm offers a free immediate response. Contact us at 877-781-1570.
Related Pages: Weapons Charges | Attempted Murder