Information on the crime of assault with firearm is found at California penal code section 245(a)(2) [PC 245(a)(2)]. This brief article discusses the law, the penalties, and the common defenses related to PC 245(a)(2) criminal charges. For further information, please contact our award-winning criminal defense attorneys for a free consultation.
PC 245(a)(2) Law
PC 245(a)(2): A person who assaults another person with a firearm is guilty of California penal code 245(a)(2) [Abbrev.].
Assault Defined: For purposes of PC 245(a)(2), an assault with a firearm means the defendant specifically intends to place another person in fear of an immediate harm, such as the fear of being shot, even if the victim is not actually harmed or shot.
Example: David points his 9mm pistol at Goliath with the intent to scare Goliath into thinking that he will be shot by David. In this situation, David may be charged with assault with a firearm (PC 245(a)(2)) or brandishing a firearm (PC 417).
Note: The defendant does not need to fire the firearm to be charged with assault with firearm. In fact, if the defendant actually fires the firearm at another person, then he may be charged with discharge of a firearm (PC 246.3), or even attempted murder (PC 664-187(a)).
Also, whether the firearm is loaded is irrelevant in PC 245(a)(2) cases, except where the victim is certain that the firearm is not loaded and thereby, the victim has no reasonable fear of an imminent injury.
Example: David points an unloaded firearm at Goliath with the intent to scare Goliath; however, Goliath knows that the firearm is not loaded. In this situation, David may be charged with brandishing a firearm (PC 417), but he is not likely to be charged with PC 245(a)(2)).
Note: Penal code 245(a)(2) may be charged where the defendant assaults another person with a inoperable firearm or an imitation firearm. The criminality of assault with a firearm deals with the reasonable fear of the victim. Therefore, if the victim does not know that the firearm is inoperable or an imitation, then the defendant may not later claim this fact as a defense.
PC 245(a)(2) Penalties
Assault with firearm classified as a “wobbler” crime in California. This means that PC 245(a)(2) may be charged as either a misdemeanor, or alternatively as a felony. For more information, see Wobbler Crimes.
Whether the defendant is charged with misdemeanor or felony PC 245(a)(2) charges depends on many factors, such as the defendant’s criminal history, the sophistication level of the offense, the harm caused to the victim, the terms of any negotiated plea, and more.
Felony PC 245(a)(2): When assault with firearm is charged as a felony, the defendant may face up to two, three, or four years in a county jail, depending on certain mitigating or aggravating sentencing factors that are present in the case.
Misdemeanor PC 245(a)(2): When assault with firearm is charged as a misdemeanor, the defendant may face up to one year in the county jail.
Note: A felony PC 245(a)(2) may be reduced to a misdemeanor under certain circumstances, even after the initial criminal filing as a felony. Alternatively, a misdemeanor PC 245(a)(2) may be enhanced to a felony in certain circumstances, even after the initial criminal filing as a misdemeanor.
Probation Sentence: A probation sentence is a period of supervision, as opposed to an actual jail sentence. A probation sentence is allowed in both felony and misdemeanor PC 245(a)(2) cases; however, a probation sentence is not guaranteed in any case.
Note: Whether the defendant receives a probation sentence after a conviction for assault with firearm depends on many factors, such as the remorse shown by the defendant, the terms of any negotiated plea bargain, the harm caused to the victim, the defendant’s criminal history, the ability of the defendant to serve a probation sentence, and more.
Probation + Incarceration: In many cases of PC 245(a)(2), the defendant may be placed on probation with a jail sentence. This means that the jail sentence is a term of probation, as opposed to a jail sentence ordered after a PC 245(a)(2) conviction without probation.
The difference is important because a jail sentence as a term of probation is much shorter than a jail sentence ordered without probation, and a jail sentence as a term of probation may usually be served alternatively on work release, as opposed to behind bars. For further information, see Misdemeanor Probation v. Felony Probation.
Serious Offense: PC 245(a)(2) is considered a “serious” offense under California law (PC 1192.7). As such, any conviction for assault with a firearm may lead to a “strike’ conviction under California’s Three Strikes Sentencing Law.
Penalty Fine: According to penal code 245a2, if convicted of assault with firearm, the defendant could face up to a $10,000 fine for each conviction (PC 245(a)(2)).
Additional Penalties: In addition to the penalties listed above, if found guilty of assault with firearm, the defendant could face negative consequences with immigration status, professional licensing status, military service status, civil lawsuits, criminal protective orders, restitution to victims, loss of scholarships, loss of firearm rights, confiscation of firearms, and more.
PC 245(a)(2) Defenses
Common defense to assault with firearm crimes include statute of limitations (3 years for both misdemeanor and felony PC 245(a)(2) charges), insufficient evidence to prove specific intent to assault, self-defense, defense of others, insanity, mistaken identity, alibi defense, illegal search and seizure, coerced or unmirandized confessions, and more.
Closely Related Crimes: Assault with Machinegun (PC 245(a)(3) [Maximum Prison Sentence up to 12 Years]; Assault with a Semiautomatic Firearm (PC 245(a)(b)) [Maximum Prison Sentence up to 9 Years]; Assault with Firearm Upon Police Officer (PC 245(d)(1)) [Maximum Prison Sentence up to 8 Years].
For more information on the crime of assault with firearm, or California penal code 245(a)(2), contact our experienced and successful criminal defense attorneys. Our team of award-winning criminal defense attorneys have successfully handled hundreds of misdemeanor and felony firearm crimes and we can help you too, call today.
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