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California PC 245(a)(2) - Assault with a Firearm

California Penal Code 245(a)(2) specifically punishes assault with a firearm. You commit PC 245(a)(2) if you shoot someone, shoot at someone, point a gun at someone, or use a gun as a blunt force weapon (aka “pistol whip”).

245(a)(2) is known as a “wobbler”, or a law that the prosecutor can choose to charge as a misdemeanor or a felony. The prosecutor will base that decision on factors such as the type of weapon used, whether the alleged victim sustained an injury, and the seriousness of that injury.

The criminal defense attorneys at the Law Offices of Natalio Pereira are very experienced in defending against PC 245(a)(2) Assault with a Firearm charges in Southern California. Let’s take a look at what a PC 245(a)(2) charge consists of, how our criminal defense attorneys can help you, and what sorts of penalties you face if convicted.

Elements of the Crime – PC 245(a)(2)
In order to be convicted of PC 245(a)(2), the prosecutor must prove that you:

1. Assaulted someone, and
2. The assault was committed using a firearm.

What is an “assault”?
An “assault” is defined in CA Penal Code 240 as “An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” To learn more about how California law defines an assault, please read our page on PC 240 Assault or “Simple Assault”.

What is a “firearm”?
California Penal Code 12001 defines a firearm as "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.” In plain English, a “firearm” is a gun. It can be a shotgun, rifle, semiautomatic pistol, revolver, or other type of gun.

How can the criminal defense attorneys from the Law Offices of Natalio Pereira fight my PC 245(a)(2) Assault with a Firearm charge?
Our experienced criminal defense attorneys have several ways to fight a PC 245(a)(2) Assault with a Firearm charge in our Southern California courts. Some of the ways we fight your PC 245(a)(2) charges are:

1. Inability to commit a violent injury. Assault with a Firearm requires intent and a present ability to violent injury to be convicted. If you point a gun at someone and the gun is unloaded, it would not be possible to shoot that person at the time the threat is made. The criminal defense attorneys from the Law Offices of Natalio Pereira can investigate the facts of your case, and show the prosecutor that it would have been impossible to cause “violent injury” to the alleged victim.
   
   
2. Self-Defense/Defense of Others. If you reasonably believe that you or someone else is about to be seriously harmed by another, you can use means of defending yourself or someone else. If an armed robber breaks into your home and you point a gun at the robber, threatening to shoot him if he does not drop his weapon, that would be self-defense and you would not be convicted of PC 245(a)(2) Assault with a Firearm.
   
   
3. False accusations. Simply put, you were wrongfully accused. PC 245(a)(2) is a serious crime, and the criminal defense attorneys from the Law Offices of Natalio Pereira have had great success getting PC 245(a)(2) charges dismissed when there are no witnesses available to testify in corroboration of the alleged victim’s story.
   
   
4. Lack of intent. PC 245(a)(2), and any other assault charge, requires that the defendant have acted willfully. If you fire a gun and accidentally shoot someone, or point a gun not realizing that another person is nearby and feels threatened, there is not intent to cause a “violent” injury and thus no conviction for PC 245(a)(2) Assault with a Firearm.
   

What sort of penalties am I facing if I am convicted of PC 245(a)(2) Assault with a Firearm?
Remember, PC 245(a)(2) is a “wobbler”, so it can be charged as a misdemeanor or a felony. Also, there are enhanced felony penalties for using particular types of firearms such as an automatic weapon, an “assault weapon”, or a .50 BMG rifle.

If you are convicted of misdemeanor PC 245(a)(2), you face the following penalties:

1. California misdemeanor probation, otherwise known as “summary” or “informal” probation;
2. 6 months to 1 year in county jail;
3. Up to $10,000 in fines;
4. Victim restitution costs (if applicable);
5. Confiscation of the weapon (if you own it);
6. Possibly community service and/or successful completion of an Anger Management course.

If you are convicted of felony PC 245(a)(2), you face the following penalties:

1. 2-4 years in a California state prison;
2. Up to $10,000 in fines;
3. Victim restitution costs (if applicable);
4. A “strike” on your record under California’s 3 Strikes Law;
5. Confiscation of the weapon (if you own it).

If you commit PC 245(a)(2) using a machine gun, “assault weapon”, or .50 BMG rifle, and are convicted of a felony, you will face 4, 8, or 12 years in a California state prison plus the above penalties.

If you commit PC 245(a)(2) using any other semiautomatic firearm, and are convicted of a felony, you will face 3, 6, or 9 years in a California state prison plus the above penalties.

If you are convicted of felony 245(a)(2) on a peace officer or firefighter, you face 4-12 years in a California state prison plus the above penalties.