Posted on May 20, 2015
California PC 245(a)(2) | Assault with a Firearm
In California, assault with a firearm is defined under Penal Code 245(a)(2). The underlying crime is simple assault under PC 240 but carried out with the use of a firearm. This charge is a wobbler offense which means it can be charged as either a felony or misdemeanor. The prosecutor holds the discretion in determining whether to file charges as a felony or misdemeanor. Factors the prosecutor considers when determining whether to file charges as a felony or misdemeanor is your prior criminal history and/or severity of the current offense. Fortunately, if you are convicted of this charge as to a felony, you may be eligible to have your conviction reduced to a misdemeanor pursuant to PC 17(b) upon successful completion of your sentence. The consequences for a firearms conviction, especially used in an assaultive manner can carry substantial consequences. In fact, if convicted under this statute as to a misdemeanor, you must serve a minimum of 6 months in county jail. Furthermore, you could face an additional years in state prison based on the mere use of a firearm. If you have been arrested or accused of assault with a firearm, contact a Los Angeles Criminal Defense Attorney immediately.
Elements of the Crime
According to CALCRIM 875, in order for someone to be found guilty of assault with a firearm, the prosecutor must prove each element beyond a reasonable doubt:
1. Defendant did an act with a firearm that would result in the application of force to another;
2. Defendant did the act willfully;
3. The act reasonably placed someone in apprehension of imminent force;
4. Defendant had the present ability to apply force;
5. Defendant did not act in self-defense.
What are the Legal Defenses to Assault with a Firearm?
• You were acting in reasonable self-defense in protecting yourself or someone else from great bodily harm
• You did not purposefully or intend to bring about harm to someone else
• You were false accused. This is a common occurrence where the only evidence against you is a single witness who makes a statement to police officers and there is no corroborating evidence
• Mistaken identity: This occurs often when the victim cannot identify the perpetrator or “thinks this looks like him.” Factors to show misidentification fall within cross-racial identification, poor lighting, or a traumatic experience affecting one’s recollection of the assailant
What is the Punishment for Assault with a Firearm?
If convicted of assault with a firearm as a felony, the consequences are:
• 2, 3, or 4 years in California state prison
• Up to $10,000 in fines
• Victim Restitution
If convicted of assault with a firearm as a misdemeanor, the consequences are:
• Up to 1 year in the county jail, but not less than 6 months
• Up to $10,000 in fines
• Probation Supervision
• Victim Restitution
• Counseling Classes
Assault with a firearm may be expunged in California pursuant to P.C. § 1203.4 if certain conditions have been met. The process consists of petitioning the court where if successful, the judge will withdraw it’s finding of guilt, enter a not guilty plea, and then dismiss the case. From that moment, the law will deem you statutorily rehabilitated releasing you from all liabilities and penalties as a result of the conviction. Contact us today to discuss your eligibility in getting your record expunged.
Dan is a resident in a Los Angeles apartment complex. One evening while sleeping, he overheard noises stemming from his front room. He opened the door and found an unwanted person going through his belongings. Dan quickly went to his closet and grabbed his firearm. He proceeded to his front room and confronted the burglar. When the burglar saw Dan, Dan pointed his gun at the burglar and told him to leave immediately or he’ll shoot. The burglar immediately ran out of Dan’s apartment. An hour later, the LAPD subsequently arrests Dan for assault with a firearm. In this case, Dan would not be guilty of assault with a firearm because he was merely pointing the gun at the burglar in an effort protect himself from harm. A home invasion offense is a violent crime, thus Dan was within his right to protect himself via self-defense from unwanted persons potentially able to harm him.
Contact Us for a Free Consultation
If you or a loved one has been arrested or charged with assault with a firearm, contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call 877-888-9820 for a free confidential consultation concerning your rights and defenses.