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

January 27, 2016

In California, “Assault with a Firearm” is charged under Penal Code 245(a)(2) pc. This offense is a wobbler which means you could be charged with either a felony or misdemeanor. Simply put, this charge requires that you made an unlawful attempt, coupled with the present ability, to commit a violent injury on another with the use of a firearm. Furthermore, the government may allege a “firearm enhancement” on top of your underlying charge which will greatly increase your prison exposure. The following article will address 7 important things you should know about charges of assault with a firearm.


Government’s Burden to Prove Each Element

To prove you’re guilty of assault with a firearm under PC 245(a)(2), the government must prove each of the following elements beyond a reasonable doubt:

1. You did an act with a firearm that by its nature would directly and probably result in the application of force to another;

2. You acted willfully;

3. When you acted, you were aware of facts that would lead a reasonable person to realize that your act by its nature would directly and probably result in the application of force to another;

4. You had the present ability to apply force with a firearm to another;

5. You were not acting in self-defense.

Legal Defenses to PC 245(a)(2)

  • Willful Conduct: Assault with a firearm requires a willful act against another person. Therefore, if you did not act willfully and instead your conduct or act was done on accident, then you cannot be convicted of this offense. For instance, dropping a firearm on the floor and it shot and struck your accuser.
  • Self-Defense: Claiming you acted in self-defense is viable if you reasonably believed you acted to prevent yourself or someone else from injury against your accuser. For example, you pointed a gun at someone who was carrying a knife threatening you or a family member.
  • Mistaken Identity: You were not the individual who committed the alleged offense. Instead, you’re the actual victim by mistaken identification. Factors associated with mistaken ID include, but are not limited to, cross-racial identification, poor lighting, or mental disorders.
  • Illegal Search & Seizure: The police must be armed with reasonable suspicion to detain you, and must have probable cause to conduct a search of your person, vehicle, or home unless you give them permission to search. If law enforcement commits a violation of your search & seizure right under the Fourth Amendment, the judge will deem the firearm inadmissible, and the government may not be able to proceed with their case against you.
  • Miranda Violation: Your incriminating statements can sometimes be the most damaging evidence against you. For instance, you could admit to the crime corroborating your accuser’s accusations, admit that you acted willfully, etc. However, if you were subject to custodial interrogation without being admonished of your Miranda rights, the police may have violated your rights and the judge may order your statements suppressed.
  • False Accusation(s): You could be subject to prosecution via false accusations from someone with a known or unknown motive. For instance, your former spouse could be falsifying a case against you for divorce benefits, revenge, or to gain full custody of your children.

Punishment & Sentencing


The punishment for this offense can be severe if convicted. A felony conviction carries a state prison sentence of 2, 3, or 4 unless the court grants you probation.

A misdemeanor conviction carries up to 1 year in the county jail. However, by statute, you must be sentenced to a minimum of 6 months in the county jail.

As noted above, the government may additionally allege a “firearm enhancement” which means you may face an additional 5, 6, or 10 years to run consecutive to your underlying assault charge. If alleged and proved, your maximum exposure would be 14 years in prison.

Whether you’re convicted of a felony or misdemeanor, you additionally face a fine amount of up to $10,000. However, a skilled criminal defense lawyer may be able to negotiate with the government so that you may plead to a reduced charge which will not carry such severe penalties thereby avoiding jail time.

Furthermore, a conviction for this offense carries a life-time ban on your ability to own or possess a firearm.

Examples of Assault with a Firearm

• Shooting at someone even if you miss

• Striking someone in the head with a firearm

• Pointing a loaded firearm at someone

Felony Reduction to a Misdemeanor

Penal Code 17(b) allows you to reduce your felony to a misdemeanor if the court granted you probation. To obtain reduction, a specific petition must be filed after you’ve successfully completed your probation period. If the judge grants your petition, the felony will be reduced to a misdemeanor “for all purpose” thus relieving you from ever having to disclose that you’ve been convicted of a felony. Prior to ruling on your petition, the judge will consider the following factors:

• The severity of the circumstances of your case

• Whether you pose a threat of danger to the community

• Whether you’re likely to re-offend

• Your prior criminal record

• Whether you violated any terms of your probation

• The reason you’re seeking reduction – e.g., military, employment, immigrations, etc.


PC 1203.4 governs expungements in California. To obtain an expungement for Assault with a Firearm, you must be finished with your probation period. An expungement requires a specific petition to be filed with the court and the prosecuting agency must be served within the notice period. A hearing will be held and if the court grants your petition, the conviction will then be ordered dismissed. For more information about expunging your criminal record, contact the Law Offices of John D. Rogers.

Contact Us to Schedule a Free Consultation

If you’ve been arrested or charged with assault with a firearm under PC 245(a)(2), contact an experienced Newport Beach Criminal Defense Attorney at the Law Offices of John D. Rogers for a free consultation about your rights and defenses.

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