California holds a specific law and set of consequences for assaults committed with a firearm. A conviction for assault with a firearm brings significant punishments that include prison time and can limit your future job prospects and other opportunities.
You need a strong criminal defense attorney to protect your rights, challenge the prosecution, and have your charges dismissed or reduced to help you avoid serious consequences and move forward with your life.
Assault Defined
Penal Code 240 defines an “assault” as an illegal attempt to perpetrate a violent injury on another person in situations when the perpetrator has the ability to carry out that attempt. This means you can be charged with assault even if you do not ultimately injure the other person but simply make an attempt.
Under PC 245(a)(2), pointing or firing your firearm at another person, using the firearm to “pistol-whip” another person, or actually shooting someone with a firearm all amount to assault. As long as you took action that could have likely resulted in someone being forcibly touched by your firearm, you can face charges. For example, you can be charged with assault with a firearm if you:
- See your significant other with someone else and confront the pair, waving a gun in their direction
- Get in a bar fight and “take it outside” where you retrieve your pistol from your car and point it at your adversary
- Have an argument with another person and attempt to bash them over the head with your gun
Firearm Defined
California law defines a firearm as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” Examples include
- Pistols, rifles, and shotguns
- Semiautomatic firearms: weapons that fire and chamber fresh cartridges with each trigger-pull
- Machine guns: weapons that fire multiple shots with one trigger pull
- Assault weapons
- .50BMG rifles: powerful, long-range weapons
BB guns, air guns, pellet guns and other devices not using explosion or combustion are not classified as firearms.
The “Elements” of the Crime
For you to be convicted of assault with a firearm, the prosecution must prove the act fulfills four specific “elements” of the crime.
You Used a Firearm and Could Have Caused Harm
When you committed the act, you used a firearm, and that act could have reasonably resulted in the application of force upon someone else. Even if you were not successful, the attempt is enough. “Force” includes any offensive or harmful touch, whether it leads to injury or not.
You Acted Willfully
You acted on purpose, even if you did not ultimately intend to hurt anyone or break the law. For example, if you are messing around with friends and decide to scare them by firing a shot in their direction with no intent to hurt them, you could face charges because you pointed and shot the firearm on purpose, and that act could have caused harm.
You Acted with Awareness
When you committed the act, you knew that a reasonable person would believe your actions would probably result in an act of force against them.
You Had “Present Ability”
At the time you committed the act, you had the ability to apply force. If you waved an unloaded gun at a person, your act would not fulfill the “present ability” criterion. However, if you threatened or attempted to club someone over the head with the unloaded weapon, you could face charges.
Penalties for Convictions of Assault with a Firearm
Punishments for this crime depend on several factors. First, if the firearm used in the act was “ordinary,” such as a pistol or revolver, the violation falls into the wobbler category, giving the prosecutor discretion to pursue either misdemeanor or felony charges.
The prosecutor will consider your criminal history and the specific circumstances of the incident, such as whether the victims suffered injuries, in making their decision. A skilled criminal defense attorney will fight to keep the charges low.
Misdemeanor convictions can bring a jail sentence of six months to up to one year, a maximum fine of $1,000, or both penalties. Felony convictions bring up to four years in state prison, fines of up to $10,000, or both.
Some Violations Are Always Felonies
If you commit the act with a semiautomatic firearm, machine gun, assault weapon, or .50BMG rifle, you will face felony charges with harsher sentences. For semiautomatic firearm assaults, you can see a three, six, or nine-year sentence. For assault with the other weapons listed, you can see a four, eight, or twelve-year sentence.
When you commit assault with a firearm against a firefighter or law enforcement officer, you will be charged with a felony and given an increased prison sentence that will be further enhanced if you used a firearm outside of the “ordinary” classification. The felony will also count as a strike under California’s three-strikes law.
Partnering with a Strong Criminal Defense Attorney Is Critical
There is so much on the line when you are facing charges of assault with a firearm. An experienced criminal defense attorney will examine all aspects of your case and build a customized defense to help you beat the charges or avoid the most serious consequences.
Your lawyer may argue you acted in self-defense, did not act “willfully,” or have been falsely accused. If there are no injuries to prove an act occurred, it can be easy for someone, out of revenge, anger, or jealousy, to fabricate the assault. Whatever the situation, your attorney will collect comprehensive evidence to support your defense and fight against the prosecution’s accusations.
Put Your Defense and Your Future in the Hands of a Skilled Criminal Defense Attorney
Do not settle for less than the highest-quality legal representation. With your freedom and future at stake, you need a powerful defender in your corner. Reach out to us today for a free case review and a consultation with the high-quality criminal defense lawyer you need.
Your lawyer will keep your best interests at the forefront throughout your case.
