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California Penal Code 245(a)(2) - Assault With A Firearm

CALIFORNIA PENAL CODE 245(A)(2) – ASSAULT WITH A FIREARM

Los Angeles Criminal Defense LawyerAssault with a firearm charges are covered under California Penal Code Section 245(a)(2). Using a gun to commit assault is considered a more severe offense compared to other forms of assault in California.

However, Penal Code 245(a)(1) PC refers to assault with a deadly weapon, which is a closely related offense. The key difference lies in whether the assault involved a “deadly weapon” other than a firearm and whether it was executed forcefully enough to potentially cause significant bodily harm.

According to California’s Penal Code 245(a)(2) PC, assault with a firearm involves assaulting a person using any of the following:

  • Handgun
  • Machine gun
  • Pistol
  • Rifle
  • Shotgun
  • Semiautomatic firearm
  • Machine gun
  • .50 BMG rifle
  • Assault weapon

Assault with a firearm encompasses various scenarios, regardless of whether the gun is discharged. This involves actions like physically hitting someone with a gun or aiming it at them to induce fear. The assault can involve:

  • Pointing the firearm towards the victim,
  • Physically striking or “pistol-whipping” the victim,
  • Discharging a firearm in the direction of the victim, or
  • Actually shooting the victim.

Please note that assault doesn’t necessarily involve causing physical harm; even the mere threat of harm using a gun can result in criminal consequences. Regrettably, misinformation or false accusations related to assault might result in the wrongful arrest of an innocent individual.

If you’re currently dealing with criminal charges for assault or battery in Los Angeles, California, it’s recommended to seek assistance from an experienced local criminal defense attorney like Cyrus Tabibnia. He can provide the guidance you need to navigate your situation effectively.

245 PC: (a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

(3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.

(4) Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

(b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.

(c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

(d) (1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.

(2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years.

(3) Any person who commits an assault with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined in Section 30530, upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 6, 9, or 12 years.

(e) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by Sections 18000 and 18005.

(f) As used in this section, “peace officer” refers to any person designated as a peace officer in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=245.

ELEMENTS OF ASSAULT WITH A FIREARM CALIFORNIA

According to the Judicial Council of California Criminal Jury Instructions, in order to prove the defendant’s guilt under PC 245(a)(2), the state needs to establish the following:

  • The defendant performed an action involving a firearm that, due to its nature, would likely result in the application of force to a person.
  • The defendant engaged in this action willfully.
  • At the time of the action, the defendant was aware of facts that would lead a reasonable person to recognize that the action could result in the direct application of force to someone.
  • When the defendant took action, they were capable of using force with a firearm against a person.
See also  PENAL CODE 33600 PC – ZIP GUN LAWS CALIFORNIA

Please note that the concept of “application of force” doesn’t necessarily mean causing bodily harm. Force could involve any form of touching that is offensive or harmful, even if it’s minimal. Even if the defendant had no intention to cause harm, their actions might still be considered assault. If you require further information, reach out to a Los Angeles criminal defense attorney at Tabibnia Law Firm.

EXAMPLES OF ASSAULT WITH A FIREARM CALIFORNIA:

Here are two examples of individuals who might face charges under California’s “assault with a firearm” law:

Example 1: Jake gets into a heated argument with his neighbor, Alex, over a property dispute. In a fit of anger, Jake grabs his unloaded hunting rifle and points it directly at Alex, threatening to harm him if he doesn’t back off. Even though the gun is not fired, Jake’s actions of using the firearm to intimidate Alex could lead to him being charged with assault with a firearm.

Example 2: Lisa and Mike, two acquaintances, have an ongoing conflict. One day, during an intense argument at a party, Lisa strikes Mike on the head with the butt of her handgun. The force of the blow causes Mike to sustain injuries that require medical attention. Lisa’s action of physically hitting Mike with the firearm, even if not fired, might result in her being charged under the “assault with a firearm” law due to the potential for significant bodily harm.

WHAT ARE THE RELATED CRIMES?

There are similar crimes that a prosecutor can charge a person with, depending on the circumstances and the nature of the offense. Some of these crimes include:

  • Assault with a Deadly Weapon (Penal Code 245(a)(1) PC)
  • Aggravated Assault (Penal Code 245(a)(4) PC)
  • Criminal Threats (Penal Code 422 PC)
  • Brandishing a Weapon (Penal Code 417 PC)
  • Battery (Penal Code 242 PC)
  • Attempted Murder (Penal Code 664/187 PC)
  • Robbery (Penal Code 211 PC)
  • Simple assault (Penal Code 240 PC)
  • Attempted murder (Penal Code 664/187(a) PC)
  • Assault with caustic chemicals (Penal Code 244 PC)
  • Assault on a public official (Penal Code 217.1 PC)
  • Armed with a Firearm Committing a Felony (Penal Code 12022 PC)
See also  CALIFORNIA PENAL CODE 245(A)(1) - ASSAULT WITH A DEADLY WEAPON

PENALTIES FOR PENAL CODE 245(A)(2) – ASSAULT WITH FIREARM

The penalties for committing assault with a firearm vary based on the type of firearm that the defendant is accused of using.

If the firearm used is considered a regular or common firearm, not falling into any special categories mentioned below, then under PC 245(a)(2), the offense is considered a “wobbler.” This means the prosecutor has the option to charge it as either a misdemeanor or a felony crime, depending on factors such as the circumstances of the incident (including whether the victim sustained injuries) and the defendant’s prior criminal record.

When charged as a misdemeanor, assault involving a standard firearm carries the subsequent penalties:

  • Summary probation for a misdemeanor.
  • A sentence of six (6) months to one (1) year in the county jail.
  • A fine that can reach up to one thousand dollars ($1,000)

If charged as a felony, assault using a regular firearm leads to these consequences:

  • Formal probation for a felony.
  • Imprisonment in a California state prison for two (2), three (3), or four (4) years

However, assault with a firearm is classified as a felony in all cases if any of the following conditions are met:

  • Involvement of a semi automatic firearm.
  • Use of a machine gun.
  • Use of an assault weapon.
  • Use of a .50 BMG rifle.

If the firearm involved was a machine gun, assault weapon, or .50 BMG rifle, the defendant could potentially face a prison sentence of up to 12 years. However, if the weapon in question was a semiautomatic firearm, the maximum prison term could be nine years.

Getting convicted of assault with a firearm is regarded as a “strike” within California’s Three Strikes Law, which can lead to harsher penalties for any future convictions. Individuals found guilty of this crime are likely to have their lifelong right to own or buy firearms revoked.

See also  CALIFORNIA PENAL CODE 245(A)(1) - ASSAULT WITH A DEADLY WEAPON

IMMIGRATION CONSEQUENCES

Committing an offense under California Penal Code Section 245(a)(2) PC, which involves assault with a firearm, can have significant immigration consequences. Non-U.S. citizens who are convicted of this crime may face serious immigration issues. The conviction could lead to deportation, denial of naturalization, or other negative immigration outcomes.

It’s important for non-citizen defendants to understand that even if the offense is classified as a misdemeanor crime under state law, it could still be treated as a “crime of moral turpitude” or an “aggravated felony” in immigration proceedings, resulting in severe consequences for their immigration status. It’s advisable for non-citizen defendants to consult with an immigration attorney to fully grasp the potential immigration ramifications of a conviction under this statute.

DEFENSES FOR PENAL CODE 245(A)(2)?

Legal defenses that could apply to cases involving California Penal Code Section 245(a)(2) PC, which deals with assault with a firearm, include:

  • Self-Defense or Defense of Others: If the defendant used the firearm to protect themselves or others from imminent harm, and the level of force used was reasonable given the circumstances, self-defense or defense of others could be valid defenses.
  • Lack of Intent: If the defendant didn’t intend to commit an assault or didn’t have the requisite intent to harm someone, this lack of intent can be a defense.
  • Mistaken Identity: If there’s evidence to support that the alleged victim falsely accused the defendant of the assault, this defense might apply.
  • Alibi: Providing evidence that the defendant was in a different location at the time of the alleged assault can establish an alibi defense.
  • Accidental Discharge: If the firearm was discharged unintentionally, without any intent to commit assault, this can be a defense.
  • Insufficient Evidence: If the prosecution lacks substantial evidence to prove the defendant’s guilt beyond a reasonable doubt, an insufficient evidence defense could be used.
  • Violation of Rights: If law enforcement conducted searches or obtained evidence without following proper legal procedures, this violation of rights could lead to evidence being excluded from the trial.
  • Mental State: If the defendant’s mental state at the time of the alleged offense raises questions about their ability to form criminal intent, it could be a defense.
  • Procedural Errors: If errors in the legal procedures or investigations undermine the fairness of the trial, these procedural errors might be used as defenses.
  • Duress or Coercion: If the defendant committed the assault under threat or coercion from someone else, this defense might apply.

It’s important to note that the success of these defenses depends on the specific circumstances of the case. If you or someone you know is facing charges under this statute, consult with a qualified criminal defense attorney who can assess the details of the situation and determine the most appropriate defense strategy.

CRIMINAL DEFENSE FOR ASSAULT WITH A FIREARM CASES

Experienced California criminal defense lawyer, Cyrus Tabibnia has seen plenty of these cases, and knows the best legal defenses to deploy to get charges dropped or reduced. If you have inquiries regarding Penal Code 245(a)(2) PC concerning assault with a firearm, or if you wish to have a confidential conversation about your case, feel free to get in touch with Tabibnia Law Firm. Our California based gun crime defense attorney Cyrus Tabibnia is here to help. Cyrus is well-versed in employing various strategies to contest charges related to assault with a firearm. Don’t hesitate to reach out –he is here to assist you. Serving southern California including Los Angeles. To learn more about what our firm can do for you, please call 866-713-2159 for a comprehensive consultation.

Cyrus Tabibnia

Cyrus Tabibnia

Cyrus Tabibnia, also known as Shahrooz Tabibnia, is a criminal defense lawyer in Los Angeles, California. With a law degree from Loyola Law School, Los Angeles, he has been practicing law since 2005 and holds license #237348. With over 18 years of experience, Cyrus specializes in various misdemeanor and felony criminal Law including Domestic Violence, Theft Crime, Sex crime, DUI & DWI, Personal Injury, Employment Law, and Cannabis & Marijuana Drugs Law. Being bilingual in English, Persian, and Spanish enables him to effectively communicate with a diverse range of clients. From 2014 to 2018, he served as a board member of the Iranian American Bar Association. An expungement attorney in Los Angeles who can assist you in clearing your criminal record in the state of California.

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