Assault using a gun is a more serious offense than other types of assault in California. It is important to know that assault does not require any physical harm. Even the threat of harm with a gun is enough to lead to a criminal conviction. Unfortunately, the wrong information or false claims of assault may lead to the arrest of an innocent person.
If you are facing criminal charges for assault or battery in the East Bay, talk to an experienced local criminal defense lawyer for help.
Penal Code 245(a)(2) PC Text
Under California Penal Code Section 245(a)(2), it is a crime for any person to commit an assault upon the person of another with a firearm.
Assault and battery are terms that are often used together but they have different meanings in the law. Under California law, “an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Battery is defined as “any willful and unlawful use of force or violence upon the person of another.”
Assault with a firearm could include any type of gun, even if it is not fired. This includes hitting someone with a gun or pointing a gun at someone to frighten them. A firearm is defined as “any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” This includes:
- Semiautomatic gun
- Machine gun
- Assault weapon
The penalties for assault with a firearm may depend on a number of factors. Assault with a firearm could be charged as a misdemeanor or as a felony. This may depend on the individual's prior criminal history, whether anyone was injured, and the victim involved.
As a misdemeanor, assault with a firearm is punishable by 6 months to 1 year in jail and a fine of up to $10,000. As a felony, assault with a firearm could be punishable by a fine and up to 4 years in state prison.
If the assault was likely to produce great bodily harm, it shall be punished by imprisonment for up to 4 years. If the assault involved a semiautomatic firearm, punishment may include up to 9 years in prison. If the assault involved an assault weapon or machine gun, the penalties could include up to 12 years in state prison. There are additional penalties if the victim of the assault was a peace officer or firefighter.
Elements of the Offense
In a criminal trial, the prosecutor has to prove each element of the offense in order to get a guilty verdict.
Under the Judicial Council of California Criminal Jury Instructions, to prove the defendant is guilty of PC 245(a)(2), the state has to prove:
- The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person;
- The defendant did that act willfully;
- When the defendant acted, they were aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone; AND
- When the defendant acted, they had the present ability to apply force with a firearm to a person.
The “application of force,” does not require bodily harm. Force can include touching someone in a harmful or offensive manner, even if it was very slight. Even if the defendant never intended to harm someone, it may still be considered assault.
Legal Defenses for Assault with a Firearm in California
Self-defense or defense of others is an affirmative defense to assault charges. Self-defense and defense of others means that the individual committed the act but was justified under the circumstances. However, a defense of assault with a firearm needs to be proportionate to the threat.
A person can act lawfully in self-defense or defense of another if:
- The defendant reasonably believed that he or she or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND
- The defendant used no more force than was reasonably necessary to defend against that danger.
Defense Attorney for 245(a)(2) PC Charges in Alameda and Contra Costa Counties
The police can be too reactive when someone claims they were threatened with a weapon. Even if there is no evidence of a firearm or no one else saw the individual use a gun, the police may still end up arresting the suspect. After an arrest, the prosecutor may try to get you to plead guilty in exchange for a lighter sentence. Before you agree to any plea bargain, make sure you understand your rights.
East Bay criminal defense attorney Lynn Gorelick has more than 37 years of courtroom experience and understands the consequences of pleading guilty to a crime without fighting back against the charges. Representing individuals in Alameda County and Contra Costa County, Lynn Gorelick is familiar with the local criminal laws, officers, prosecutors, and judges involved. Contact East Bay criminal defense lawyer Lynn Gorelick today.