Assault with a Firearm

California Law Penal Code 245(a)(2) PC

California Law Penal Code 245(a)(2) punishes assault with a firearm. You commit this offense if you:

  • Shoot someone with a gun
  • Fire a gun at someone
  • Point a loaded gun at someone in a threatening manner, OR
  • Bludgeon or pistol-whip someone with a gun

A conviction subjects you to years in the state prison. If the prosecutor files the case in connection with an attempted murder charge, you could ultimately face a life sentence.

The good news is that we’re here to help you avoid these penalties. Many innocent people get falsely accused of California firearms offenses, or are improperly charged when they really acted in lawful self-defense.

As former cops and prosecutors, we know how to fight bogus gun charges, in order to keep you out of jail and keep your record clean.

The Legal Definition of Assault with a Firearm

A California Penal Code 240 PC “simple assault” is an unlawful attempt, coupled with a present ability, to commit a violent injury upon another person. When that assault involves the use of a firearm, the offense becomes much more serious.

California’s “assault with a firearm” law is actually quite broad. Loosely referred to under the umbrella of Penal Code 245(a)(2), it punishes assaults that involve “generic” firearms, assault weapons, machine guns, .50 BMG rifles, or semiautomatic firearms.

In order to convict you of this offense, the prosecutor must prove that you

  1. assaulted another person, and
  2. committed the assault with one of the above described firearms.

Let’s take a look at some of these terms to gain a better understanding of their meanings.

Firearm

Under California law, a firearm is “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”

Assault weapon

Assault weapons are “firearms of such a nature and with such a high rate of fire and capacity for firepower that their function as legitimate sports or recreational firearms is substantially outweighed by the danger that they can be used to kill and injure human beings”.A list of actual assault weapons banned under California law is found in Penal Codes 12276 and 12276.1 PC.

Machine guns

A machine gun is “any weapon that shoots / is designed to shoot / or can readily be restored to shoot automatically more than one shot by a single function of the trigger and without manual reloading.”

.50 BMG rifle (Browning Machine Gun)

A .50 BMG rifle is not an assault weapon or, despite its name, a machinegun. “It is a center fire rifle that can fire a .50 BMG cartridge, which is a cartridge that is designed and intended to be fired from a center fire rifle and that has all three of the following characteristics:

  1. overall length is 5.54 inches from the base of the cartridge to the tip of the bullet,
  2. the bullet diameter for the cartridge is from .510 to, and including, .511 inch, and
  3. case base diameter for the cartridge is from .800 inches to .804 inches.”

Semiautomatic firearm

A semiautomatic firearm is one that “extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger”.

Operability / use

If you waive or direct a firearm at the alleged victim, the gun must be loaded in order to commit assault with a firearm under Penal Code 245(a)(2). If it isn’t, you don’t commit an assault, since you don’t have the “present ability to commit a violent injury”.

However if, instead of waiving or directing an unloaded or inoperable gun at the alleged victim, you use the firearm as a club or bludgeon, essentially “pistol-whipping” the person…you could still be convicted of this charge.

On that note, if the facts of your case involve using the firearm as a bludgeon, your California criminal defense lawyer will want to try to negotiate a plea at the very least to a Penal Code 245(a)(1) assault with a deadly weapon ADW charge.

This would be the case if, for example, the firearm in question is an assault weapon. Assault with an assault weapon carries a minimum four-year state prison sentence. An ADW charge, however, does not carry a mandatory jail or prison sentence.

Call Stephen Brodsky Right NOW for a Free Consultation

Authorities will pressure you into revealing damning information, making convicting statements, offering a guilty plea even if you’re innocent. The sheer volume of cases motivates the entire court system to demand criminal defendants to plead guilty at the very earliest stage of a case in order to move cases along.

Protect your freedom and your record!  Call NOW for a free consultation with Los Angeles Criminal Attorney Steve Brodsky before your arraignment. Your free consultation will give you strong advice into toward your case. Do not automatically plead guilty.

There will be an invitation to discuss your major fears and concerns privately with me. You will be able to ask any and all questions you feel are important to your defense. In the end, you will be confident that we will be able to get you through this crisis.

Call Now.