Assault with a firearm is generally charged as a felony offense, though you could be charged with a misdemeanor under certain circumstances. A felony conviction can impose severe consequences with sentencing enhancements very likely given the nature of the offense. Under California Penal Code Section 245 (a)(2), you may be found guilty of this offense if you:

  • Shoot someone
  • Shoot at someone
  • Point a firearm at another person in a threatening manner
  • Strike someone with a firearm (pistol whip)

Also, the gun must have been loaded if you were pointing it at someone though you could still be charged with assault with a deadly weapon.

What is Assault?

Under California law, if you attempt to inflict bodily injury on someone and have the present ability to do so, you may be guilty of assault. You do not have to actually harm anyone so long as you have the intent and the present ability to inflict a serious injury on someone.

What is a Firearm?

Most guns are obviously firearms but the definition includes any device that is designed to have a projectile expelled through a barrel by the force of combustion.

Defenses to Assault with a Firearm

There are some common defenses to assault with a firearm:

  • Self-Defense

You may only use a firearm in self-defense to repel similar force against you or another person and if you reasonably believe that you are in imminent danger of serious bodily harm. You cannot use excessive force to protect yourself such as aiming a loaded gun at someone who is only verbally threatening you and does not possess a dangerous weapon.

You also face the possibility of being charged with another criminal offense even if you are acting in self-defense. This could include possession of a dangerous firearm, carrying a concealed weapon or carrying a loaded firearm.

  • No Assault

If you lacked the intent to inflict serious bodily harm on someone such as by accidentally pointing a loaded weapon at someone, or if you were not engaged in an argument or threatening anyone, your conduct may not arise to an assault.

  • Unloaded Gun

If your firearm was unloaded or inoperable, there is no assault with a firearm but you may face assault with a deadly weapon.

Penalties for Assault with a Firearm

Your sentence will depend on whether the weapon used was a “generic” firearm or an assault weapon, machine gun, semiautomatic firearm or .50 BMG rifle.

  • Use of a Generic Firearm

If you are convicted of this offense as a misdemeanor, which would require that you only used a generic firearm, you face a 6 to 12 month jail sentence and a fine up to $10,000.

If convicted of a felony with the use of a generic firearm, you face a 2, 3, or 4 year state prison sentence and a fine up to $10,000. Should you have assaulted a police officer or fireman, your sentence is a 4, 6 or 8 years in state prison.

  • Use of an Assault Weapon

Use of an assault weapon in commission of this crime is always a felony. These include .50 BMG rifles and machine guns. You face a 4, 8 or 12 year prison sentence that is elevated to a 6, 9 or 12 year sentence if you assaulted a peace office or fireman.

  • Use of a Semiautomatic Weapon

This will subject you to a 3, 6 or 9 year prison sentence or 5, 7 or 9 years in state prison if used on a peace officer or fireman.

  • Sentencing Enhancements

Personal use of a firearm in committing this or any other crime can result in an additional, consecutive prison sentence of 1-10 years, depending on the type of firearm used.

One other serious consequence is that a conviction under PC 245(a)(2) is a strike under California’s Three Strikes law. A second strike automatically doubles your sentence while a third strike confers automatic incarceration of 25 years to life.

Further, if you did fire the weapon, you might face attempted murder under PC 187(a) so long as the prosecutor can prove intent to kill.

Immigration Consequences

For legal aliens or other non-citizens, assault with a firearm can have severe consequences regarding your legal status. Although in some cases a gun crime can be reduced or dismissed, in most instances you face an increased risk of deportation since this is considered a serious crime and one of moral turpitude.

Call the Law Offices of Ramiro J. Lluis

Any gun crime conviction, including assault with a firearm can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with a gun crime, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.