Under Penal Code 245(a)(2) the crime of assault with a firearm takes place if you shoot someone with a gun, fire a gun at someone, point a loaded gun at someone in a threatening manner, or assault someone with a gun such as bludgeoning or pistol-whipping them with the weapon. Assault with a firearm is a serious offense that can lead to lengthy prison sentences. If the prosecution connects the case with an attempted murder charge, you could potentially face a life sentence.
Penalties for assault with a firearm can be avoided under certain circumstances. For example, innocent people may be falsely accused of a firearm offense, or are improperly charged when they were acting in self-defense in accordance with the law.
What is assault with a firearm?
The use of a firearm in the assault is what makes this offense so serious. Simple assault is an unlawful attempt, coupled with present ability, to commit a violent injury upon another person. When a firearm becomes involved the crime becomes more significant and as a result harsher penalties are handed down upon conviction. California has a rather broad law in relation to assault with a firearm, meaning many assaults are punishable that involve:
- Generic firearms
- Assault weapons
- Machine guns
- .50 BMG rifles
- Semiautomatic firearms
In order to be convicted of assault with a firearm the prosecution must prove that you assaulted another person and that the assault was committed with one of the described firearms listed above.
If you waive or direct a firearm at the alleged victim the gun must be loaded in order to qualify for assault with a firearm. If the gun is not loaded you did not commit assault with a firearm because you do not have the present ability to commit a violent injury as defined in Penal Code 245(a)(2).
However, if you use the firearm as a bludgeon to hit or pistol-whip the alleged victim, you may still be charged with assault with a firearm.
You have the right to use reasonable force to protect yourself or another person from imminent bodily harm. If you assault someone with a firearm but you do so reasonably acting in accordance with California’s self-defense laws, then you are not in violation of Penal Code 245(a)(2).
However, this does not mean that you may not be charged with violating other California gun laws, including:
- Carrying a loaded firearm
- Felon with a firearm
- Carrying a concealed weapon
- Possessing dangerous firearms
Penalties, punishment and sentencing are dependent on the circumstances of your case, including what kind of weapon was used and whether or not the alleged victim was an on-duty peace officer or firefighter. Assault with a firearm is a serious offense that can come with significant prison time if convicted.
A conviction for assault with a firearm is considered a “strike” offense under California’s Three Strikes Law and can be used to increase penalties in future convictions. As a result of an assault with a firearm conviction, the defendant will likely face a lifetime ban on firearm purchasing or possession as well.