Under Penal Code 245(a)(2) PC, California law defines assault with a firearm as assaulting a victim by using a pistol, rifle, shotgun, semiautomatic firearm, machine gun, .50 BMG rifle or assault weapon. The assault may take the form of pointing the firearm at the victim, striking or “pistol-whipping” the victim, firing the gun at the victim, or actually shooting the victim.
California law defines an “assault” in Penal Code 240 PC 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. 1 2
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.
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 to Penal Code 245(a)(2)
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 Penal Code 242 PC – battery.8)
In order to fight charges of assault with a firearm, 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 criminal defense attorneys will address the following:
- 1. What is the crime of “assault with a firearm”?
- 2. What is the jail or prison sentence?
- 3. How can a defense attorney fight the charges?
- 4. Are there similar crimes a prosecutor can charge a person with?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of California assault with a deadly weapon, Penal Code 245(a)(2) PC, consists of the following “elements of the crime”:
- You performed an act with a firearm that, by its nature, would probably result directly in the application of force to someone else;
- You performed that act willfully;
- 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
- 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.
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 under California law, 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
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).
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
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.)
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:
- The circumstances of the offense (e.g., whether the alleged victim suffered any injury); and/or
- The defendant’s criminal history.21
If it is charged as a misdemeanor, assault with a generic firearm carries the following penalties:
- Misdemeanor (summary) probation;
- At least six (6) months and up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).22
And if it is charged as a felony, assault with a generic firearm is punishable by:
- Felony (formal) probation;
- Two (2), three (3) or four (4) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).23
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
The penalties for assault with a firearm will increase if:
- The alleged victim was a peace officer or firefighter who was engaged in the performance of his/her duties when the assault occurred; AND
- 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
In this case, the offense will always be a felony. And the potential state prison sentence will be:
- Four (4), six (6) or eight (8) years for an ordinary firearm;
- Five (5), seven (7) or nine (9) years for a semiautomatic firearm; and
- Six (6), nine (9) or twelve (12) years for a machinegun, assault weapon, or .50 BMG rifle.27
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.
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
Assault with a firearm is considered a violent firearm offense. So 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 (Penal Code 29800 PC).31
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
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:
- You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- You reasonably believed that the immediate use of force (in this case, involving a firearm) was necessary to defend against that danger; and
- 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
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.
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.
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.
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
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
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
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.
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:
- Taking at least one direct but ineffective step toward killing someone;
- 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.
Penal Code 244 PC assault with caustic chemicals is another serious offense that is a variation on California assault.
The legal definition of assault with caustic chemicals is throwing or placing any kind of caustic chemical on another person’s body, with the intent to injure or disfigure him/her.48
PC 244 is a California felony, carrying a potential state prison sentence of two (2), three (3) or four (4) years.49
Penal Code 217.1 PC assault on a public official is charged against people who commit an assault against a public official or a member of his/her family, in retaliation for or to prevent the performance of the public official’s official duties.50
To give an example, you could be charged with this offense if you tried to spray pepper spray on a legislator who voted for a policy that harmed you or your business.
PC 217.1 assault on a public official is a wobbler.51
For additional help…
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.
If you are a veteran, read our article about defending veterans with PTSD.
For more information on Nevada “assault with a deadly weapon” laws, please see our page on Nevada “assault with a deadly weapon” laws.
- California 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.”)
- 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.”)
- Penal Code 245 PC – Assault with a firearm, endnote 1, above.
- 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.”)
- 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].”)
- 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.”)
- CALCRIM 875 – Assault With Deadly Weapon
- 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.”)
- CALCRIM 875
- 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.”)
- Same. (“In any case, even an unloaded gun can be used as a club or bludgeon.”)
- Based on the facts of the same.
- Penal Code 245 PC – Assault with a firearm, endnote 1, above.
- 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.”)
- Penal Code 245 PC – Assault with a firearm, endnote 6, above.
- See same.
- 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.”)
- 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.”)
- 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.”)
- 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.”)
- Penal Code 667(e)(1) PC – Three strikes law.
- See same.
- CALCRIM 3470 – Right to Self-Defense or Defense of Another
- 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.
- 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.
- CALCRIM 915 – Simple Assault (Pen. Code, § 240)
- Penal Code 245 PC(a)(1), (a)(4) — Assault with a deadly weapon [compare to assault with a firearm sections].
- Penal Code 417 PC – Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers
- CALCRIM 600 – Attempted Murder (Pen. Code, §§ 21a, 663, 664)
- Penal Code 190 PC – Punishment for murder
- Penal Code 244 PC – Assault with caustic chemicals
- Penal Code 217.1 PC – Assault on a public official