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

California Penal Code 245(a)(2) defines the crime of assault with a firearm. You commit this offense if you:

  • Shoot someone with a gun
  • Fire a gun at someone
  • Point a loaded gun at someone in a threatening manner, OR
  • Bludgeon or pistol-whip someone with a gun

A conviction subjects you to years in the state prison. If the prosecutor files the case in connection with an attempted murder charge, you could ultimately face a life sentence.

The good news is that we're here to help you avoid these penalties. Many innocent people get falsely accused of California firearms offenses, or are improperly charged when they really acted in lawful self-defense.

As former cops and prosecutors, we know how to fight bogus gun charges, in order to keep you out of jail and keep your record clean.

Below, our California criminal defense attorneys1 discuss

1. The Legal Definition of Assault with a Firearm
2. Legal Defenses
3. Penalties, Punishment, and Sentencing

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

You may also find helpful information in our related articles on Penal Code 240 PC California's Assault Law; Penal Code 245(a)(1) California's Assault with a Deadly Weapon "ADW" Law; California Firearm Offenses; California's Ban on Assault Weapons and Rifles; Penal Code 417 PC "Brandishing a Firearm / Weapon"; Penal Code 25850 PC California's "Carrying a Loaded Firearm" Law; Penal Code 29800 PC California's "Felon with a Firearm" Law; Penal Code 25400 PC California's "Carrying a Concealed Weapon" Law; California CCW Permits; Penal Code 16590 PC California's "Possessing Dangerous Firearms" Law; Legal Defenses; California's Self-Defense Laws; Police Misconduct; Restoring Your California Gun Rights; California's Sentencing Enhancement for Personally Using a Firearm; and California's Three Strikes Law.

1. The Legal Definition of Assault with a Firearm

A California Penal Code 240 PC "simple assault" is an unlawful attempt, coupled with a present ability, to commit a violent injury upon another person.2 When that assault involves the use of a firearm, the offense becomes much more serious.

California's "assault with a firearm" law is actually quite broad. Loosely referred to under the umbrella of Penal Code 245(a)(2), it punishes assaults that involve

  • "generic" firearms,
  • assault weapons,
  • machine guns,
  • .50 BMG rifles, OR
  • semiautomatic firearms.3

In order to convict you of this offense, the prosecutor must prove that you

  1. assaulted another person, and
  2. committed the assault with one of the above described firearms.4

Let's take a look at some of these terms to gain a better understanding of their meanings.

Firearm

Under California law, a firearm is "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion."5

Assault weapon

Assault weapons are "firearms of such a nature and with such a high rate of fire and capacity for firepower that their function as legitimate sports or recreational firearms is substantially outweighed by the danger that they can be used to kill and injure human beings".6 A list of actual assault weapons banned under California law is found in Penal Codes 12276 and 12276.1 PC.7

Machine guns

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."8

.50 BMG rifle (Browning Machine Gun)

A .50 BMG rifle is not an assault weapon or, despite its name, a machinegun. "It is a center fire rifle that can fire a .50 BMG cartridge, which 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 inches to, and including, .804 inches."9

Semiautomatic firearm

A semiautomatic firearm is one that "extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger".10

Operability / use

If you waive or direct a firearm at the alleged victim, the gun must be loaded in order to commit assault with a firearm under Penal Code 245(a)(2). If it isn't, you don't commit an assault, since you don't have the "present ability to commit a violent injury".11

However.if, instead of waiving or directing an unloaded or inoperable gun at the alleged victim, you use the firearm as a club or bludgeon (essentially "pistol-whipping" the person) then you could still be convicted of this charge.12

On that note, if the facts of your case involve using the firearm as a bludgeon, your California criminal defense lawyer will want to try to negotiate a plea down (at the very least) to the lesser charge of Penal Code 245(a)(1) assault with a deadly weapon ADW charge.

This would be the case if, for example, the firearm in question is an assault weapon. Assault with an assault weapon carries a minimum four-year state prison sentence.13 An ADW charge, however, does not carry a mandatory jail or prison sentence. Moreover, simple ADW is a wobbler and therefore can be reduced from a felony to a misdemeanor.14

2. Legal Defenses

The first step to fighting your Penal Code 245(a)(2) charge is to challenge the underlying assault charge. As San Bernardino criminal defense attorney Michael Scafiddi explains,15 "If you can prove that you didn't commit an assault, prosecutors can't convict you of committing an assault with a firearm. It's that simple."

Example : Using a situation from above, if you threaten to shoot someone with an unloaded gun, your conduct does not constitute an assault. You lack the present ability to carry out your threat. Prosecutors could, however, charge you with the less serious California firearms offense of brandishing a weapon under Penal Code 417 PC.

If you can't successfully challenge the underlying assault, there are still a variety of legal defenses that are available to fight an "assault with a firearm" charge. Some examples include (but are not limited to):

Self defense / defense of others

If you assault someone with a firearm -- but only do so because you are reasonably acting in accordance with California's self-defense laws -- then you don't violate Penal Code 245(a)(2). California's self-defense laws permit you to use reasonable force to protect yourself or another person from imminent bodily harm.16

But bear in mind that even if you are legally defending yourself, depending on the circumstances, prosecutors could still possibly charge you with violating another California gun law. Some possibilities include

Police Misconduct

Examples of police misconduct that involve allegations of assault with a firearm could include

  • planting evidence (that is, the alleged firearm),
  • fabricating evidence (for example, alleging that an individual who holds a valid California CCW permit tried to assault the officer with the concealed weapon when, in fact, he did no such thing), or
  • conducting an illegal search and seizure in violation of your Fourth Amendment rights17 (a search that, for example, reveals a legally owned firearm that the cop says you used to assault him/her).
3. Penalties, Punishment, and Sentencing

The penalties, punishment, and sentencing for violating Penal Code 245 PC California's "assault with a firearm" law vary depending on

  1. the specific firearm used, and
  2. whether the alleged victim is an on-duty peace officer or firefighter.

"Generic" firearms

Assaults that involve "generic" firearms subject you to a maximum $10,000 fine and a six to twelve month county jail sentence if convicted of a misdemeanor.

If convicted of a felony, you face the same fine and a two, three, or four-year California State Prison sentence (or a four, six, or eight-year sentence if the alleged victim is an on-duty peace officer or firefighter).18

Assault weapons

Assaults that involve machine guns, assault weapons, or .50 BMG rifles are automatic felonies, subjecting you to a four, eight, or twelve-year state prison sentence (or a six, nine, or twelve-year sentence if the alleged victim is an on-duty officer or firefighter).19

Semiautomatic firearms

Assaults that involve semiautomatic firearms are always felonies, subjecting you to a three, six, or nine-year state prison sentence (or a five, seven, or nine-year sentence if the alleged victim is an on-duty officer or firefighter).20

Sentencing enhancement for personally using a firearm

If the judge/jury finds you guilty of assault with a firearm and further believes that you personally used a firearm during the commission of the offense (which is very typically the case, given the underlying charge) you face an additional one to ten-year sentencing enhancement for personally using a firearm.

This prison sentence will run consecutive to the penalty you receive for the assault with a firearm charge. The length of the sentencing enhancement is largely based on the type of firearm involved.

California's Three Strikes Law

In addition to the above penalties, a California assault with a firearm conviction will result in a "strike" on your criminal record pursuant to California's Three Strike's Law.21

If you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.22

If charged with a third felony and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.23

Additional sentencing factors

In addition to a county jail or state prison sentence, your firearm will most likely be declared a nuisance (and subsequently destroyed) in connection with an assault with a firearm conviction.24

You will also likely lose your right to own, possess, purchase, or receive a firearm. Depending on the exact facts of your case and on your specific conviction, you could be banned from possessing or acquiring a firearm for ten years or possibly for life.25

Finally, if you are a legal alien or legal immigrant, a Penal Code 245(a)(2) PC conviction subjects you to removal from the United States, since firearm offenses are California crimes that can lead to deportation.26

Assault with a firearm and its connection to attempted murder

If (during an assault with a firearm) you actually discharge your gun, prosecutors might charge you under California attempted murder law. But before prosecutors can convict you of attempted murder, they must prove that you had the specific intent to kill.

Simply shooting someone isn't enough, by itself, to qualify as a "specific intent to kill." The facts must establish that the shooter was trying to murder the victim. Prosecutors generally argue that multiple gun shots or shots fired at the upper half of the alleged victim's body demonstrate an intent to kill.

A conviction for attempted premeditated murder subjects you to a life sentence with the possibility of parole.27

Many times the judge/jury may not believe you specifically intended to kill and may alternatively convict you of assault with a firearm. Similarly, your California criminal defense attorney may try to plea bargain attempted murder charges down to lesser assault charges under Penal Code 245(a)(2).

Call us for help.
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If you or loved one is charged with Penal Code 245(a)(2) assault with a firearm and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's firearms laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.28

Legal References:

1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2California Penal Code 240 PC -- Assault defined. ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")

3California Penal Code 245 PC -- Assault with a firearm. ("(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 machine gun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, 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.")

4CALJIC 9.02.1 -- Assault with a firearm. ("In order to prove this crime [that is, assault with a firearm], each of the following elements must be proved: [1] A person was assaulted; and [2] The assault was committed with [a machine gun] [an assault weapon] [a semiautomatic firearm] [a .50 BMG rifle].")

5California Penal Code 12001 PC -- Definitions.

See also California Jury Instructions, Criminal. CALJIC 9.02 -- Assault with a firearm.

6CALJIC 9.02.1 -- Assault with an assault weapon.

7California Penal Code 12276 PC -- Assault weapons. See also California Penal Code 12276.1 PC -- Assault weapons; further definition.

8Judicial Council Of California Criminal Jury Instruction 875 -- Assault with a firearm.

9See same.

10See same.

11People v. Miceli (2002) 104 Cal.App.4th 256, 269. ("To point a loaded gun in a threatening manner at another (especially if accompanied by threats to shoot, as here) constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.")

See also People v. Rodriguez (1999) 20 Cal.4th 1, 11. ("A long line of California decisions holds that an assault is not committed by a person's merely pointing an (unloaded) gun in a threatening manner at another person. ( People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6, 193 Cal.Rptr. 890, 667 P.2d 694; People v. Sylva (1904) 143 Cal. 62, 64, 76 P. 814; People v. Lee Kong (1892) 95 Cal. 666, 668-669, 30 P. 800; People v. Valdez (1985) 175 Cal.App.3d 103, 111, 220 Cal.Rptr. 538.) ")

12See Miceli at 270, endnote 11, above. (".nothing in [California Penal Code] section 245, subdivision (b), or in any apposite case law, indicates that assault with a semiautomatic weapon requires proof the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under the statute by using the gun as a club or bludgeon, regardless of whether he could also have fired it in a semiautomatic manner at that moment.")

13California Penal Code 245(a)(3) PC -- Assault with a firearm. ("(3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.")

14California Penal Code 245 PC -- Assault with a deadly weapon. ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")

15San Bernardino criminal defense lawyer Michael Scafiddi uses his inside knowledge as a former police officer to defend clients accused of violating California's firearms offenses throughout the Inland Empire, including Redlands, Riverside, Rancho Cucamonga, Fontana, Barstow and Victorville.

16Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("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 or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)]; [2] The defendant reasonably believed that the immediate use of deadly 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.")

See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("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.")

17Your Fourth Amendment constitutional rights protect you from unreasonable searches and seizures. If an officer searches you, your car, your business, or your home without a valid search warrant or probable cause, that officer may violate your Fourth Amendment rights.

18California Penal Code 245 PC -- Assault with a firearm. ("(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.(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.")

19See same. ("(3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.(3) Any person who commits an assault with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, 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.")

20California Penal Code 245 PC -- Assault with a firearm. ("(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) 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.")

21California Penal Code 1192.7(c) PC. ("As used in this section 'serious felony' means.(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm.")

See also California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

22California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California 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 a prior felony conviction: (1) If a defendant has one prior felony conviction 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) If a defendant has two or more prior felony convictions 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 greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years.")

23See same.

24California 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 Section 12028.")

25California Penal Code 29800 -- Felon with a firearm. ("(a)(1) Any person who has been convicted of a felony 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 12001.6 [which includes violations of California's assault with a firearm law].and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony...(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of.[California Penal Code] 245.and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.")

268 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens.(2) Criminal offenses.(C) Certain firearm offenses -- Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18) in violation of any law is deportable.") Violating California's "assault with a firearm" law is therefore a California crime that can lead to deportation.

27California Penal Code 664 PC -- Attempts. ("Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. ")

28Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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