California Penal Code Section 245(a)(2) PC – Assault with a Firearm

California Penal Code Section 245(a)(2) PC (Assault with a firearm) makes it a crime for an individual to commit an assault using a firearm, such as a pistol, assault rifle, shotgun, or machine gun. So, if you intentionally want to scare someone by pointing an assault rifle, such as an AR-15 at them, you might be charged with violating penal code 245(a)(2) PC, which makes it a crime to commit an assault using a firearm.

You should not take a charge of aggravated assault with a firearm lightly as a conviction of this crime carries a potential prison sentence of up to four years in California State Prison.

To mitigate the potential consequences that you face, you should promptly contact an experienced assault defense attorney to defend you and keep you from going to prison. Our assault lawyers have the knowledge and experience to achieve the best possible results for you. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.

TEXT OF AGGRAVATED ASSAULT WITH A FIREARM PENAL CODE 245(A)(2) PC

According to the California Penal Code, 245(a)(2) PC, “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.”

The use of a firearm is what differentiates assault with a deadly weapon vs assault with a firearm. Assault with a deadly weapon under 245(a)(1) encompasses any assault that does not involve a firearm, whereas, assault with a firearm under 245(a)(2) makes it a crime to commit an assault with a deadly weapon that only includes firearms, such as pistol, rifles, shotguns, and machine guns.

This section defines a firearm as a weapon from which a projectile is discharged through a barrel by an explosion or other form of combustion.

PROVING A PERSON GUILTY OF THIS CRIME

For the prosecution to convict an individual of assault with a firearm, it must prove a number of elements beyond a reasonable doubt. If the prosecutor fails to prove even one element, he will not be able to convict the defendant of the crime charged. The prosecution must prove the following elements:

• The defendant acted intentionally
• The defendant performed an act with a firearm that would by its nature probably result in the application of force towards another person
• The defendant was reasonably aware that his conduct would directly and probably result in the application of force to another person, and
• The defendant had the ability to carry out the assault with the firearm at the time he acted

Note: For the prosecution to convict the defendant of assault, the defendant need not fire the firearm, nor does he need to injure another person.

PENALTIES FOR COMMITTING ASSAULT WITH A FIREARM – PC 245(A)(2)

Assault with a firearm is a wobbler, meaning the prosecution has the discretion to charge it as either a misdemeanor or a felony. Whether the prosecution charges an individual with misdemeanor assault with a firearm or felony assault with a firearm depends on the type of firearm the defendant allegedly used.

If the firearm is a generic firearm, such as a pistol, the prosecution has the discretion to charge the crime as a felony or misdemeanor. The prosecution’s decision depends on the defendant’s criminal history and the facts surrounding the assault.

However, if the defendant committed an assault that involves a semi automatic firearm, machinegun, assault weapon, or .50 BMG rifle, the defendant will be charged with a felony offense.

If the defendant is convicted of a felony, he faces the following consequences:

• Conviction of a felony offense
• Two years, three years, or four years in California State Prison
• A fine of up to $10,000
• Loss of the right to own a firearm for life

If the defendant is convicted of a misdemeanor, he faces the following consequences:

• Conviction of a misdemeanor offense
• Minimum of six months imprisonment with a maximum of twelve months of imprisonment in county jail
• A fine of up to $1000
• The loss of your right to own a firearm
• Placement on misdemeanor summary probation

Enhancements

• The defendant may be sentenced to additional prison time if the victim of his assault was a police officer or firefighter who was performing his duty at the time of the assault IF the defendant knew or should have known that the victim of his assault was a police officer or firefighter who was performing his duties.

DEFENSES FOR COMMITTING ASSAULT WITH A FIREARM

If you have been charged with assault using a firearm, there are a number of defenses that your attorney can use to defend you. The following list of defenses is not exhaustive of all of the defenses available to you, but serves as a list of some of the defenses that your attorney may be able to use to defend you.

• The defendant acted in self-defense or the defense of others – California law allows persons to defend themselves with a firearm so long as the individual believes that he or another person was faced with an imminent danger of great bodily harm or death. For example, if another person takes out a bat or pistol and threatens to beat you up with it, you may be able to defend yourself on the grounds that you believed that a firearm was necessary to repel the attack.
• The defendant did not have the intent to threaten another person with the firearm
• The defendant is a victim of mistaken identity
• The defendant is being falsely accused of assault with a firearm
• The defendant’s firearm was inoperable
• The defendant’s firearm was not loaded

EXAMPLES OF COMMITTING ASSAULT WITH A FIREARM

A man is out with some friends, he runs into his ex-girlfriend’s boyfriend, so to scare him, he takes out a gun and points the gun at him and threatens to shoot him. The gun is loaded and ready to be fired. The man can be charged with and convicted of assault with a firearm. However, in this same example, if the gun was unloaded or the gun was not working, and he pointed the gun at his ex’s boyfriend, he could not be convicted of assault with a firearm because the gun was inoperable or unloaded, making it impossible for the man to carry out the attack.

OFFENSES RELATED TO ASSAULT WITH A FIRE – PENAL CODE SECTION 245(A)(2)

• California Penal Code 240 PC – Simple Assault
• California Penal Code 245(a)(1) – Assault with a deadly weapon
• California Penal Code 417 – Brandishing a firearm
• California Penal Code 664 & 187 – Attempted Murder

CONTACT AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY

If you or a loved one has been charged with assault with a firearm, you should immediately contact an experienced criminal defense attorney to defend you and keep you from going to prison. Our attorneys have the knowledge and experience to mitigate the potential consequences that you face. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.