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

Assault with a firearm is a form of California assault. It will be charged if you are alleged to have used a firearm to commit an assault.1

California law defines an “assault” as an unlawful attempt to commit a violent injury on someone else—coupled with the present ability to do so. An assault can occur even if no one is actually injured.2

Thus, you may be accused of assault with a firearm if you:

  • Shoot at someone with a gun (even if you don't hit them);
  • Point a loaded gun at someone; or
  • Bludgeon or pistol-whip someone with a gun (or attempt to do so).

Examples

Here are some examples of people who might be charged under California's “assault with a firearm” law:

  • A man who is angry that is ex-wife is seeing another man confronts her outside of her apartment and points a gun at her.
  • During an argument over a parking space, a woman retrieves a rifle from the trunk of her car and waves it at the person she is arguing with.
  • After losing at a pool game in a bar, a man goes out to his car, comes back with a handgun, and tries to use it to club the woman who beat him at pool over the head.
Assaultfirearm_smallgun
A variety of scenarios can lead to California assault with a firearm charges.

Penalties

The penalties for PC 245(a)(2) assault with a firearm depend on the type of weapon that is alleged to have been used.

Assault with a generic firearm is a “wobbler” in California law. This means that it may be charged and punished as either a California misdemeanor or a California felony, depending on the circumstances of the case.3

If it is charged as a misdemeanor, assault with a generic firearm is punishable by six (6) months to one (1) year in county jail. Charged as a felony, it carries a California state prison sentence of two (2), three (3) or four (4) years.4

But assault with a firearm is always a California felony if it is carried out with a machine gun, assault weapon, .50 BMG rifle, or semiautomatic firearm.

In that case, the potential state prison sentence can range from three (3) to twelve (12) years.5

Moreover, the maximum penalties will increase if the alleged victim is a law enforcement officer, firefighter, or other protected person.6

Legal defenses

You can be convicted of California assault with a firearm—and face the hefty penalties above—even if you did not injure anyone. In fact, you can be convicted under PC 245(a)(2) even if you didn't touch or otherwise make physical contact with your victim.7

(This is the major difference between assault crimes, including assault with a firearm, and the California crime of battery.8)

Lawyer_lawbooks
An experienced attorney will be familiar with the most common legal defenses to assault with a firearm charges.

In order to fight assault with a firearm charges, you and your criminal defense attorney may want to use one of the following common legal defenses:

  • You acted in self-defense or defense of someone else;
  • You did not act willfully or with the required intent; or
  • You were wrongly accused.

In order to help you better understand California “assault with a firearm” laws, our California criminal defense attorneys will address the following:

1. The Legal Definition of California Assault with a Firearm

2. Penalties for Penal Code 245(a)(2) Assault with a Firearm

2.1. Assault with a firearm on a law enforcement officer or firefighter
2.2. Sentencing enhancement for personal use of a firearm
2.3. Loss of your firearm
2.4. Assault with a firearm and California's “three strikes” law

3. Legal Defenses to California Assault with a Firearm Charges

4. PC 245(a)(2) Assault with a Firearm and Related Offenses

4.1. PC 240 simple assault
4.2. PC 245(a)(1) assault with a deadly weapon
4.3. PC 417 brandishing a firearm
4.4. Attempted murder

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. The Legal Definition of California Assault with a Firearm

The legal definition of California assault with a deadly weapon, Penal Code 245(a)(2) PC, consists of the following “elements of the crime”:

  1. You performed an act with a firearm that, by its nature, would probably result directly in the application of force to someone else;
  2. You performed that act willfully;
  3. When you acted, you were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
  4. When you acted, you had the present ability to apply force with the firearm.9

These “elements” are the facts that the prosecutor must prove in order for you to be guilty of this offense.

Below, we will flesh out some of the terms in this legal definition of assault with a firearm.

With a firearm

Use of a “firearm” is what distinguishes assault with a firearm from California simple assault.

Assaultfirearm_bbgun
BB guns do not count as "firearms" for purposes of Penal Code 245(a)(2) PC.

Under California law, a firearm is defined as any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.10

This includes all of the following:

  • “Ordinary” firearms (pistols, rifles, shotguns);
  • Semiautomatic firearms (firearms which extract a fired cartridge and chamber a fresh cartridge with each pull of the trigger);
  • Machine guns (weapons that fire more than one shot with a single pull of the trigger);
  • .50 BMG rifles (center fire rifles that can fire .50 BMG cartridges); and
  • Assault weapons.11

But “firearm” does not include devices that do not use an explosion or combustion—such as BB guns, air guns or pellet guns.12

Example: Mike is a college student. After his college's football team loses a game, Mike gets involved in a verbal altercation with fans of the other team in the parking lot outside the stadium.

Mike pulls a BB gun out of his backpack and waves it at the other team's fans, then laughs as they run away in terror.

Mike may be guilty of assault for pulling the BB gun—but he would not face penalties for assault with a firearm, because a BB gun does not qualify as a firearm.

Application of force

The definition of “application of force” is any harmful or offensive touching. The slightest touching will count if it is done in a rude or offensive manner.13

A California assault with a firearm can occur even if the touching involved did not or could not cause any sort of injury.14

Assaultfirearm_machinegun
Assault with a firearm does not need to result in an injury.

And note that you don't need to actually have succeeded in applying force to the other person. All that is required is that you took some action that would probably have resulted in force being applied to them.15

Example: Vladimir is in the process of getting divorced from his wife, Amelia. Vladimir worries that Amelia and her divorce lawyer will succeed in taking all his money.

So one night Vladimir waits for Amelia outside her house. He intends to threaten her with a gun unless she signs certain papers renouncing rights to his property.

When Amelia gets home, Vladimir points the (loaded) gun at her and tells her to unlock the door to the house.

Once they are inside, Amelia signs the papers, and Vladimir puts away the gun. No one is injured.

But Vladimir is still guilty of assault with a firearm. This is because he pointed the gun at Amelia, which could reasonably have resulted in the application of force (if the gun had fired).

Willfully

You act “willfully” when you do something willingly or on purpose. You do not need to have intended to

  • break the law,
  • hurt anyone else, or
  • gain any advantage.16

Example: Jim is a wealthy business executive who likes to take his colleagues and employees on deer hunting trips.

On one trip, Jim decides to have a little fun with Keith, a new employee who has never hunted before. He tells Keith to go to the other end of a clearing to look for deer tracks and then fires his gun in that direction (though not directly at Keith).

This scares Keith half to death, and Jim and the other executives have a good laugh at his expense.

Jim did not actually intend to harm Keith or anyone else. Nonetheless, he may be guilty of assault with a firearm because he willfully performed an act that could have resulted in someone being injured.

Present ability to apply force

In order to be guilty of assault with a firearm, you need to have had the “present ability” to apply force with that firearm.17

Assaultfirearm_gunwithammo
In most cases, the gun must be loaded to support assault with a firearm charges.

This means that you are not guilty of this crime if you waved or pointed an unloaded firearm at someone—because in this case you would not actually have had the ability to inflict violence with the firearm.18

The only exception is if you were using the gun as a club or a bludgeon—that is, if you were hitting or attempting to hit someone with a gun, rather than firing it.19

Example:Ronnie is playing poker with his friends Maria and Stan at a bar.

After losing a great deal of money to Maria and Stan, Ronnie leaves the bar and goes to his car. He comes back with an unloaded pistol.

Ronnie hits both Maria and Stan on the head with the pistol and demands that they return the money they won from him.

Ronnie is guilty of Penal Code 245(a)(2) PC assault with a firearm even though the gun was unloaded. This is because he was using it to hit his victims.20 (He may also be charged under California's robbery law for using force to take their money.)

2. Penalties for Penal Code 245(a)(2) Assault with a Firearm

The penalties for assault with a firearm depend on what kind of firearm the defendant is alleged to have used.

If the firearm was an “ordinary” or “generic” firearm—that is, not one of the special types listed below—then PC 245(a)(2) is a “wobbler.” This means that the prosecutor may charge it as either a misdemeanor or a felony, depending on:

  1. The circumstances of the offense (e.g., whether the alleged victim suffered any injury); and/or
  2. The defendant's criminal history.21

If it is charged as a misdemeanor, assault with a generic firearm carries the following penalties:

And if it is charged as a felony, assault with a generic firearm is punishable by:

Assaultfirearm_assaultrifle
Penalties are more severe for assault with an assault rifle.

Assault with a firearm is always a felony, though, if the assault is alleged to have involved any of the following:

  • A semiautomatic firearm;
  • A machine gun;
  • An assault weapon; or
  • A .50 BMG rifle.24

And in this case, the potential felony state prison sentence increases to:

  • Three (3), six (6) or nine (9) years for a semiautomatic firearm; and
  • Four (4), eight (8) or twelve (12) years for a machine gun, assault weapon, or .50 BMG rifle.25
2.1. Assault with a firearm on a law enforcement officer or firefighter

The penalties for assault with a firearm will increase if:

  1. The alleged victim was a peace officer or firefighter who was engaged in the performance of his/her duties when the assault occurred; AND
  2. The defendant knew or reasonably should have known that the victim was a peace officer or firefighter engaged in the performance of his/her duties.26
Badge_housesearch
Penalties are more severe for assault with a firearm on a law enforcement officer.

In this case, the offense will always be a felony. And the potential state prison sentence will be:

  1. Four (4), six (6) or eight (8) years for an ordinary firearm;
  2. Five (5), seven (7) or nine (9) years for a semiautomatic firearm; and
  3. Six (6), nine (9) or twelve (12) years for a machinegun, assault weapon, or .50 BMG rifle.27
2.2. Sentencing enhancement for personal use of a firearm

As if the above sentences weren't enough, California's firearms sentencing enhancement (Penal Code 12022.5 PC) also applies to Penal Code 245(a)(2) PC assault with a firearm.28

This draconian California gun law will increase your sentence substantially if:

  • You are convicted of assault with a firearm as a felony; and
  • You are found to have “personally used” the firearm involved in the offense (this is very likely to be the case unless you are convicted for aiding and abetting an assault with a firearm committed by someone else).29

Under this sentencing enhancement, your sentence will increase by:

  • Three (3), four (4) or ten (10) years for assault involving a generic firearm; or
  • Five (5), six (6) or ten (10) years for assault involving an assault weapon or machine gun.
2.3. Loss of your firearm

If you are convicted of assault with a firearm, the firearm that you used to commit the offense will probably be declared a “nuisance.” This means it will be seized by the government and destroyed.30

Plus, if you are convicted of California Penal Code 245(a)(2) as a felony, then you will most likely not be allowed to own firearms after you complete your sentence, thanks to California's “felon with a firearm” law.31

2.4. Assault with a firearm and California's “three strikes” law
Prison
Assault with a firearm can be a "strike" under California's "three strikes" law.

Penal Code 245(a)(2) assault with a firearm is usually a strike under California's “three strikes” law—as long as either of the following is alleged to be true:

  • The defendant personally used a firearm in the commission of the offense; or
  • The defendant committed assault with a deadly weapon against a peace officer.32

So if you have a “strike” assault with a firearm conviction on your record and you are subsequently charged with any California felony, you will face twice the normal sentence for that second offense.33

And, if you accumulate three “strike” convictions—one or more of which may be a “strike” assault with a firearm—then you will receive a sentence of twenty-five (25) years to life in state prison.34

3. Legal Defenses to California Assault with a Firearm Charges

California law is particularly harsh for defendants who are alleged to have used firearms to commit a crime. The penalties for assault with a firearm are staggering, given that you can be convicted of this crime for an act that didn't actually injure anyone.

Fortunately, experienced California criminal defense lawyers have seen plenty of these cases, and know the best legal defenses to deploy to get charges dropped or reduced.

These might include:

You acted in self-defense/defense of others

The legal defense of self-defense/defense of others applies to assault with a firearm charges when all of the following are true:

  1. You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
  2. You reasonably believed that the immediate use of force (in this case, involving a firearm) was necessary to defend against that danger; and
  3. You used no more force than was reasonably necessary to defend against that danger.35

Example: Paul and Aaron are a gay couple. One day they are confronted in the hallway outside of their apartment by a neighbor, who is obviously drunk and shouting homophobic insults.

Both Paul and Aaron are unusually short and small. The neighbor is well over six feet tall and two hundred fifty pounds. The neighbor's insults grow more and more aggressive, and he threatens to “beat up” Aaron.

Paul dashes into their apartment and comes back with a loaded pistol. He waves it at their neighbor and tells him to “back off.” He never takes the safety off.

If Paul is charged with assault with a firearm, he should be able to argue that he acted in defense of Aaron. There was reason to believe the man was about to use force against Aaron, and Paul did not use excessive force in defending against that danger.

You did not act willfully or with the required intent

Img-lewd-conduct-gavel
Lack of willfulness is a valid legal defense to assault with a firearm charges.

Acting “willfully” is an element of PC 245(a)(2) assault with a firearm—just as it is for other California assault crimes.36

You may well have been acting unthinkingly or carelessly when you made what appeared to be an aggressive gesture with a firearm. This could be the case even if the gesture occurred in the middle of an argument.

You were falsely accused

According to Sacramento criminal defense attorney Neil Shouse37:

“Because assault with a firearm doesn't require the victim to suffer an actual injury, it is incredibly easy—and all too common—for someone to fabricate allegations out of thin air. The alleged ‘victim' is usually motivated by anger, jealousy or desire for revenge.”

This scenario is seen most frequently in connections with allegations involving domestic violence.

An experienced California criminal defense lawyer has seen this situation before—and knows how to gather evidence and interview witnesses to make sure the true story comes out.

4. PC 245(a)(2) Assault with a Firearm and Related Offenses

If you or a loved one is charged with assault with a firearm, you may want to know about several related offenses that can be charged along with—or instead of—that offense.

These include:

4.1. PC 240 simple assault

If the prosecutor cannot prove that you used a firearm—but can prove that you committed an assault— then your charges may be reduced to Penal Code 240 PC simple assault.

Assault_shadows
Simple assault is a lesser offense than PC 245 assault with a firearm.

The elements of simple assault are exactly the same as those for assault with a firearm—except that there is no requirement that a firearm is used.38

Penal Code 240 PC simple assault carries much lighter penalties. It is a misdemeanor and, in most cases, carries a fine of up to one thousand dollars ($1,000) and/or up to six (6) months in county jail.39

4.2. PC 245(a)(1) assault with a deadly weapon

Penal Code 245(a)(1) PC assault with a deadly weapon is a very similar crime to assault with a firearm. The only difference is that it is charged when:

  • The assault is alleged to have been committed with a "deadly weapon" other than a firearm; or
  • The assault is alleged to have been committed with force likely to produce great bodily injury.40

So if, for example, you are alleged to have assaulted someone with a knife, you will be charged with this offense instead.

Assault with a deadly weapon is a wobbler and carries similar penalties to assault with a generic firearm.41

4.3. PC 417 brandishing a firearm

California Penal Code 417 PC prohibits drawing, exhibiting or using a firearm or a deadly weapon (also known as “brandishing” the weapon). If you brandish a deadly weapon or firearm in a rude, angry, or threatening manner, you could be charged with this offense.42

Img-brandishing-guns
Brandishing a firearm can be a useful plea bargain from assault with a firearm.

Unlike with assault with a firearm, you can be convicted of brandishing a firearm even if the gun was unloaded.43

Brandishing a weapon or firearm in most cases is a misdemeanor. The maximum county jail sentence is either six (6) months or one (1) year, depending on the circumstances of the offense.44

Because it carries significantly lighter penalties, brandishing a weapon or firearm can be a useful plea bargain from assault with a firearm charges.

4.4. Attempted murder

The same behavior that can lead to an assault with a firearm charge can also lead to charges of California attempted murder—IF the prosecutor argues that you intended to kill the person you allegedly assaulted.45

The elements of attempted murder are:

  1. Taking at least one direct but ineffective step toward killing someone;
  2. With the intent to kill that person.46

So if you point or shoot a loaded gun at someone intending to kill them, you may be charged with attempted murder.

An attempted murder conviction can lead to anywhere from fifteen (15) years to life in prison.47

For this reason, it sometimes makes sense to try to get an attempted murder charge reduced to assault with a firearm.

Call us for help…

Help-support-call-us

For questions about Penal Code 245(a)(2) PC assault with a firearm, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada “assault with a deadly weapon” laws, please see our page on Nevada “assault with a deadly weapon” laws.

You may also find helpful information in our related articles on California Assault Law Penal Code 240 PC; Legal Definition of a “Wobbler” in California Law; Legal Definition of a California Misdemeanor; Legal Definition of a California Felony; The California Crime of Battery Penal Code 242 PC; Common Legal Defenses to California Crimes; Self-Defense/Defense of Others as a Legal Defense in California; California's Robbery Law Penal Code 211 PC; Misdemeanor (Summary) Probation in California; Felony (Formal) Probation in California; California's Firearms Sentencing Enhancement; California Gun Laws; California Aiding and Abetting Laws; California's “Felon with a Firearm” Law; California's “Three Strikes” Law Defined and Explained; California Domestic Violence Law; Penal Code 245(a)(1) PC Assault with a Deadly Weapon; California Penal Code 417 PC Brandishing a Firearm; and California Attempted Murder.

Legal References:


1 Penal Code 245 PC – Assault with a firearm. (“(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. (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. . . . (b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.”)

2 Penal Code 240 PC – Assault defined [assault is a component of PC 245(a)(2) assault with a firearm]. (“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”)

3 Penal Code 245 PC – Assault with a firearm, endnote 1, above.

4 Same.

5 Same.

6 Penal Code 245 PC – Assault with a firearm. (“(d)(1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years. (2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years. (3) Any person who commits an assault 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, upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 6, 9, or 12 years.”)

7 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was].”)

8 Penal Code 242 PC – Battery defined [contrast to definition of California assault with a firearm]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)

9 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“The defendant is charged [in Count ] with assault with (force likely to produce great bodily injury/a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) [in violation of Penal Code section 245]. To prove that the defendant is guilty of this crime, the People must prove that: <Alternative 1A—force with weapon> [1 The defendant did an act with (a deadly weapon other than a firearm/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) that by its nature would directly and probably result in the application of force to a person;] <Alternative 1B—force without weapon> [1A The defendant did an act that by its nature would directly and probably result in the application of force to a person, and 1B The force used was likely to produce great bodily injury;] 2 The defendant did that act willfully; 3 When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND] 4 When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon other than a firearm/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person(;/.)<Give element 5 when instructing on self-defense or defense of another.>[AND 5 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)

10 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]”)

11 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“[A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.] [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.] [An assault weapon includes <insert names of appropriate designated assault weapons listed in Pen. Code, § 30510 or as defined by Pen. Code, § 30515>.] [A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge [and that is not an assault weapon or a machine gun]. A .50 BMG cartridge is a cartridge that is designed and intended to be fired from a center fire rifle and that has all three of the following characteristics: 1 The overall length is 5.54 inches from the base of the cartridge to the tip of the bullet; 2 The bullet diameter for the cartridge is from .510 to, and including, .511 inch; AND 3 The case base diameter for the cartridge is from .800 inch to, and including, .804 inch.]”)

12 In re Jose A. (1992) 5 Cal.App.4th 697, 701. (“We conclude the Legislature intended to restrict the meaning of firearm in sections 245, subdivision (a)(2) [assault with a firearm law] and 417, subdivision (a)(2) to exclude such instruments as pellet or BB guns.”)

13 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“[The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.] [The touching can be done indirectly by causing an object [or someone else] to touch the other person.] [The People are not required to prove that the defendant actually touched someone.]”)

14 Same.

15 Same.

16 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)). (“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”)

17 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)), endnote 9, above.

18 People v. Fain (1983) 34 Cal.3d 350, 357 fn. 6. (“The threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury.”)

19 Same. (“In any case, even an unloaded gun can be used as a club or bludgeon.”)

20 Based on the facts of the same.

21 Penal Code 245 PC – Assault with a firearm, endnote 1, above.

22 See same.

See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors [such as assault with a firearm as a misdemeanor] or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)

23 Same.

24 Same.

25 Same.

26 Penal Code 245 PC – Assault with a firearm, endnote 6, above.

27 See same.

28 Penal Code 12022.5 PC – Terms of imprisonment for use of firearms, assault weapon, machinegun, or .50 BMG rifle while committing or attempting to commit a felony. (“(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony [such as assault with a firearm] shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense. (b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 30510 or Section 30515, or a machinegun, as defined in Section 16880, in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. . . . (d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 [assault with a firearm] if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.”)

29 Same.

30 Penal Code 245 PC – Assault with a firearm. (“(e) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by Sections 18000 and 18005.”)

31 Penal Code 29800 PC – Specified convictions; narcotic addiction; restriction on firearm possession; punishment. (“(a)(1) Any person who has been convicted of a felony [such as felony assault with a firearm] under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”)

32 Penal Code 1192.7(c) PC – Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section. ("(c) As used in this section, "serious felony" means any of the following: . . . (8) any felony [including assault with a firearm] in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony [including assault with a firearm] in which the defendant personally uses a firearm; . . . . (11) assault with a deadly weapon or instrument on a peace officer.")

33 Penal Code 667(e)(1) PC - Three strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony conviction [including assault with a firearm]: (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions [including assault with a firearm] as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.)”)

34 See same.

35 CALCRIM 3470 - 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.")

36 CALCRIM 875 – Assault With Deadly Weapon [or a Firearm] or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b)), endnote 9, above..

37 Sacramento criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on high-profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law.

38 CALCRIM 915 – Simple Assault (Pen. Code, § 240) [compare to elements of assault with a firearm]. (“The defendant is charged [in Count ] with assault [in violation of Penal Code section 240]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant did an act that by its nature would directly and probably result in the application of force to a person; 2 The defendant did that act willfully; 3 When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND] 4 When the defendant acted, (he/she) had the present ability to apply force to a person(;/.) <Give element 5 when instructing on self-defense or defense of another.> [AND 5 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)

39 See same.

40 Penal Code 245 PC(a)(1), (a)(4) -- Assault with a deadly weapon [compare to assault with a firearm sections].

41 Same.

42 Penal Code 417 PC – Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers [compare to Penal Code 245(a)(2) penalties]. (“(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”)

43 Same.

44 Same.

45 CALCRIM 600 – Attempted Murder (Pen. Code, §§ 21a, 663, 664) [compare to legal definition of assault with a firearm]. (“The defendant is charged [in Count ] with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that: 1 The defendant took at least one direct but ineffective step toward killing (another person/ [or] a fetus); AND 2 The defendant intended to kill (that/a) (person/ [or] fetus).”)

46 Same.

47 Penal Code 190 PC – Punishment for murder [compare to punishment for assault with a firearm]; murder of peace officers; shooting firearm from motor vehicle; release on parole. (“(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.”)

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