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Assault with a Firearm: Definition & Laws
Given the potential to result in great bodily harm and high chances of a lethal outcome, assault with a firearm is rightfully placed at the top of the severity ladder in the California legislative system. Understanding the laws governing this crime and the help of an excellent San Diego firearms defense lawyer is critical if you’re facing charges, in order to mitigate the penalties or avoid conviction altogether.
What is 245(a)(2) PC in California?
California Penal Code (PC) §245(a)(2) defines and governs the crime of assault with a firearm. Specifically, this section criminalizes the act of assaulting another person with any type of firearm, which is defined in CA PC §16520 as any “device designed to be used as a weapon, from which a projectile is expelled through a barrel by the force of an explosion or other form of combustion”. This includes (but is not limited to):
- Handguns;
- Rifles;
- Shotguns;
- Automatic weapons (full or semi);
- Machine guns.
To be convicted under PC §245(a)(2), the prosecution must prove the following elements beyond a reasonable doubt:
- You committed an act with a firearm that by its nature would directly and probably result in the application of force to a person.
- You had the present ability to apply force with a firearm.
- The act was carried out willfully, i.e. you acted deliberately and not by accident or mistake.
- When you acted, you were aware of the facts that the act would directly and probably result in the application of force to someone.
- The act was performed with a firearm (as defined above), in a manner that could cause bodily harm to another person.
It must be noted that the firearm does NOT even have to be loaded for a crime to constitute a felony under PC §245(a)(2) – proving the above elements is enough for sentencing.
Is assault with a firearm a felony in California?
In the vast majority of cases, yes – assault with a firearm is considered a felony, especially if the act resulted in greater bodily injury (GBI) or included the intent to cause harm. However, each case is evaluated based on the specific circumstances and there are instances (however rare) where the crime could be charged as a misdemeanor.
What is the lowest charge of assault?
The “lowest” charge depends on the specific circumstances of the incident, as noted above. In general, if the elements for PC 245(a)(2) cannot be proven beyond reasonable doubt, or if the prosecution chooses to charge a lesser offense, the next lower charge might be:
- Simple Assault (CA PC §240), which does not entail the use of a deadly weapon or firearm. This crime is considered a misdemeanor and is punishable by up to 6 months in county jail.
- Brandishing a Firearm (CA PC §417) refers to exhibiting or drawing a firearm in a rude, angry, or threatening manner, but not necessarily using it in a way that would directly apply force to another.
Is pointing a gun at someone a felony in California?
It all depends on the context, but pointing a gun at another person can indeed lead to felony charges. For instance, if the gun is pointed at someone in a way that could and probably would result in the use of force, then the act may constitute felony assault with the firearm.
Another instance is the aforementioned crime of Brandishing a Firearm. While this can be a misdemeanor, it becomes a felony if the act is targeted toward a peace officer or firefighter, the defendant has prior convictions for a serious crime (not necessarily assault with a firearm), or if the act was committed as a part of gang activity.
Which San Diego firearms defense lawyer near me is the best choice?
You won’t find a better team to entrust your defense to anywhere north of the US-Mexico border, than San Diego’s own Monder Criminal Lawyer Group. We’re an award-winning collective that boasts extensive hands-on experience, in-depth knowledge of California criminal law, and strategies tailored to your unique circumstances. Reach out to us today and give your case the best chance at a positive outcome!
