Penal Code 245(a)(2) PC - Assault with a Firearm
Assault with a firearm is defined under California Penal Code 245(a)(2) PC. It's the statute used by prosecutors for an assault offense where a gun was allegedly used.
Penal Code 245(a)(1) PC assault with a deadly weapon is a closely related crime. The distinguishing factor is whether the assault was committed with a “deadly weapon” other than a firearm and, if committed with enough force, it was likely to produce great bodily injury.
PC 245(a)(2) says, “Any person who commits an assault upon the person of another with a firearm shall be punished by…. imprisonment and a fine.”
Under California law, “assault” is defined as unlawfully attempting to commit an injury to another person when you have the ability to carry it out. Of note is that the victim does NOT have to suffer an injury.
Just pointing a loaded firearm at someone is sufficient to be charged under this law. PC 245(a)(2). The assault could also include pistol-whipping and firing a gun at the victim.
A “firearm” is defined under California Penal Code 12001 PC as any device designed to be used as a weapon where a projectile can be expelled through a barrel. Some common examples include the following:
- pistol;
- shotgun;
- revolver;
- rifle;
- assault weapon.
California Penal Code 240 PC defines assault as an unlawful attempt to commit a violent injury to someone with the ability to do so. Let's review this state law further below.
What Are the Elements of the Crime?
To obtain a conviction for Penal Code 245(a)(2) assault with a firearm, a prosecutor has to prove all the elements of the crime, beyond any reasonable doubt, including the following:
- you acted with a firearm in a way that could reasonably result in the application of force on someone;
- your action was willful and intentional;
- you were aware that a reasonable person would believe your actions could result in the application of force on that person;
- you had the ability to apply force with the firearm.
The “application of force” is any harmful or offensive touching that does not require physical injury. The firearm must be loaded.
What Are the Related Crimes?
- Penal Code 240 PC - assault;
- Penal Code 245(a)(1) PC - assault with a deadly weapon;
- Penal Code 417 PC - brandishing a weapon;
- Penal Code 244 PC – assault with caustic chemicals;
- Penal Code 664/187 - attempted murder;
- Penal Code 217.1 PC - assault on a public official.
What Are the Penalties for PC 245(a)(2)?
Assault with a firearm under Penal Code 245(a)(2) is a “wobbler” that can be charged as either a misdemeanor or felony offense. The charge and penalties depend on the firearm used and your criminal history.
If convicted of a misdemeanor, you will be facing the following:
- six months to 1 year in county jail,
- a fine up to $1,000, or both jail and a fine.
If convicted of a felony case of assault with a firearm, you will face the following:
- up to 4 years in a California state prison,
- a fine up to $10,000, or both jail and a fine.
The penalties are more severe if you used an assault weapon, such as a:
- semiautomatic firearm,
- machine gun, or
- 50 BMG rifle.
If the victim were a law enforcement officer or fireman engaged in their duties, it would always be charged as a felony. California's firearms sentencing enhancement, Penal Code 12022.5 PC, applies to Penal Code 245(a)(2) PC.
What Are the Defenses for PC 245(a)(2)?
Our California criminal defense lawyers can use several strategies against charges of assault with a firearm, which are discussed below.
Perhaps we can argue that you were acting in self-defense. California law allows you to protect yourself if there is a reasonable belief that you or another person was in imminent danger of suffering a bodily injury and force was necessary.
Perhaps we can argue that your act was not willful. Recall that assault with a firearm conviction requires deliberate action against someone.
Perhaps we can argue that you are the victim of a false accusation. Recall from the elements of the crime above that injuries are not required to be charged under this law. Thus, someone falsely accuses you out of jealousy, revenge, or anger.
If you are facing charges of Penal Code 245(a)(2) PC assault with a firearm, contact our law firm to review the case details and legal options. We offer a free case consultation via phone or the contact form. The Hedding Law Firm is based in Los Angeles, California.
