California PC 245(a)(2) | Assault with a Firearm

May 20, 2015

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 an experienced Newport Beach 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

Contact Us to Schedule a Free Consultation

If you or a loved one has been arrested or charged with assault with a firearm, contact an experienced Newport Beach criminal defense attorney at the Law Offices of John D. Rogers. Call us today to schedule a free confidential case evaluation concerning your rights and defenses.

Related Offenses

Assault with a Deadly Weapon

Brandishing a Weapon or Firearm

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