11 Things You Should Know About Assault With A Firearm

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.

Watch this video to understand how prosecutors approach these charges.

Elements Of The Crime The Prosecutor Must Prove For A Conviction

To be convicted under Penal Code 245(a)(2), the prosecution must prove beyond a reasonable doubt each of the following elements:

1. 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.
2. Your act was intentional.
3. 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.
4. And when you acted, you had the present ability to apply force with the firearm.

Let’s take a look at each of the important keywords in the elements so that it’s clear what the legal definition of each word means.

What Is The Definition of A 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.

What Is The Application of Force?

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.

What Is The Definition Of Intentional Conduct?

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.

What Is Present Ability?

This refers to having a loaded firearm⁴.

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.

What Are The Penalties for Assault with a Firearm?

Penalties for penal code 245(a)(2) pc depend on a number of factors including what type of firearm was used and if there are any sentencing enhancements.

Is Assault With A Firearm A Misdemeanor Or A Felony?

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 meaning, not a semiautomatic or assault weapon.

If an assault weapon, semiautomatic, .50 BMG rifle, or machine gun was used, the crime will be charged as a straight felony.

Additionally, The prosecutor 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.

Penalties For Generic Firearms

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.

Penalties For 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 weapon or gun crime, is prohibited from possessing or owning a firearm or ammunition under California’s felon with a firearm law.

Sentence Enhancements For Assault With A Firearm On A Law Enforcement Officer Or Firemen.

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

Is This A Strike Under The 3 Strikes Law?

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.

Is There A Sentencing Enhancement For Use Of A Firearm During The Commission Of A Crime?

Yes, 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

Legal Defenses

One of the more common defenses in many criminal assault cases including those involving firearms is that of self-defense.

You Were Acting In Self Defense

The elements of self-defense need to be presented and proved by the defendant at trial⁸.

These are as follows:

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.

You Had A 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.

However, in this example, you could be charged with brandishing a firearm.

You Have Been Falsely Accused

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.

You Did Not Have The Present Ability

This simply means that the firearm was not loaded or was otherwise incapable of being fired.

Record Expungement For Assault With A Firearm

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.

Certificate Of Rehabilitation

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.

What Are The Requirements For Eligibility?

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.

What Will The Certificate Of Rehabilitation Provide?

• 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.

1. 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. [↩]
2. 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 a single function of the trigger and without manual reloading.] CALCRIM 875 [↩]
3. 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. [↩]
4. 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 [↩]
5. 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. [↩]
6. California Penal Code Section 30530(a) 50 BMG Rifle Defined – As used in this part, .50 BMG rifle means a centerfire 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. [↩]
7. 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. [↩]
8. 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: [1] 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]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.” [CALCRIM 3470] [↩]