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Assault with a Firearm: California Penal Code Section 245(a)(2)

In Santa Rosa, San Rafael, Napa, Lakeport, Ukiah and Eureka

The Basics of a PC 245(a)(2)

  • As the name implies, assault with a firearm is the crime of simple assault committed with a deadly weapon. This means that the details of the law behind assault with a firearm more or less mirror the details of the law behind of simple assault.
  • However, because assault with a firearm is a far more severe crime than simple assault, the punishment is far more severe too.
  • The law does not treat all firearms equally: punishments are greater if the firearm used in the assault is a semiautomatic or a machine gun. See Related Offenses at the bottom of this page. [1]
  • Finally, just like simple assault, a battery or a wounding is not necessary.

A Closer Look at a Assault with a Firearm Charge

Background Notes

The definition of "firearm" under the law:

"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." [2]

  • As you can see, firearm is broadly defined, and encompasses much more than just guns.

Elements of the Crime (What it takes to be convicted)

In order to be convicted of assault with a firearm, the prosecution must show beyond a reasonable doubt that:

  1. 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;
  2. The defendant did that act willfully;
  3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; AND
  4. When the defendant acted, (he/she) had the present ability to apply force with a firearm to a person.

Let's look at each of these, one by one:

A. The defendant did an act that by its nature would directly and probably result in the application of force to a person.

  1. The meaning of "application of force"
    • For the purposes of this law, the terms application of force and apply force mean to touch in a harmful or offensive manner.
    • The slightest touching can be enough if it is done in a rude or angry way.
      • Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [3]
    • The touching can also be done indirectly by causing an object (or someone else) to touch the other person.
  2. So really, this element means…
    • The defendant used a firearm (probably a gun) to do the type of act that would typically end up harming someone else or touching him or her in an offensive way.
    • EXAMPLES
      • Shooting into a crowded room
      • Shooting at a freeway

B. The defendant acted "willfully"

  1. Definition of "willfully"
    • Someone commits an act willfully when he or she does it willingly or on purpose.
    • You don't need to intend to break the law, hurt someone else, or gain any advantage, [4] you just have to intend to do the act.

C. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone

  1. What it means…
    When you did it, you knew you were in a situation where doing the act would probably harm someone else.
  2. Why it matters…
    It matters because the meaning of this part of the law is sometimes misunderstood. Again, it focuses on your knowledge of the situation or circumstances, not your intent to hurt someone or your knowledge that the act would actually hurt someone. [5]

D. When the defendant acted, (he/she) had the present ability to apply force with a firearm to a person.

  1. What "present ability" means…
    • The term "present ability" has been found to mean different things in different jurisdictions. [6]
    • In California, "present ability" is actually related to the criminal law definition of "attempt," not whether or not it is possible for you to actually hurt (or offensively touch) someone. [7]
    • According to one California court, a defendant has the "present ability to injure" when he or she has "attained the means and location to strike immediately." [8]
  2. So it means…
    • Readying yourself to the point where you could act at any second

E. Putting it all back together

  • If we put the pieces above back together into a definition of assault, we end up with the following:
    Assault with a firearm is : Purposefully doing something with a firearm that that would typically end up harming someone or touching him or her in an offensive way.
  • Examples
    1. Shooting toward another person, even without intent to hit them [9]
    2. Pointing a gun at a person and telling them to get on the ground [10]

Defenses to an Assault with a Firearm Charge

A. Self-Defense

  1. Must Be Reasonable
    • Self-defense is a one possible legal defense to assault.
    • For the defense to apply, you must have been acting reasonably, both in terms of your assessment of the threat to you and the amount of force you use to respond to that threat.
    • To be eligible for the defense of self-defense,
      1. You must have reasonably believed that you were in imminent danger of suffering bodily injury or being touched unlawfully
        • "Imminent danger" means the danger must be right about to happen.
        • The threat of being harmed sometime in the future is not enough.
      2. You must have reasonably believed that the immediate use of force was necessary to defend against that danger
        AND
      3. You must have used no more force than was reasonably necessary to defend against that danger. [11]
        • In other words, you would have needed to be in a life or death situation to justify the use of a deadly weapon
        • Threat of minor injury is not enough
  2. When the danger to you is over, so is your right to use force [12]
    • Being reasonable means that you stop applying force once the danger is over.
    • Once your attacker is incapacitated, the danger is over
  3. No right to this defense if you planned to pick a fight on purpose [13]
    • A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.
  4. If you started the fight or the fight was mutual, then there are additional requirements for this legal defense to apply.
    • First, you have to stop fighting and communicate this in a reasonably understandable to the person you are fighting with.
    • Second, you have to give them a chance to stop. [14]
    • Specifically:
      • If you started the fight or the fight was mutual
        1. You must actually and in good faith try to stop fighting
          AND
        2. You must use words or conduct that indicate to the person you are fighting that you are done fighting them. The words or conduct you use must be of the type that a reasonable person would understand.
          AND
        3. You must give your opponent a chance to stop fighting

B. Defense of Others

  • You may also successfully defend an assault charge with the defense that you were defending someone else. The rules for defense of others are identical to the self-defense rules. [15]

C. Right to Kick a Trespasser off of Your Land

  1. If you tell a trespasser to leave your property, they have a reasonable time to leave. However, if they don't leave and they pose a threat, you are allowed to use reasonable force to make them leave. [16]
  2. "Reasonable force" is determined by what a person in a similar situation with similar knowledge would have done.
  3. The prosecutor has the burden of showing that the amount of force you used was unreasonable

D. Right to Defend Land and Possessions

  1. You may use reasonable force to defend your property from imminent harm [17]
  2. You may use reasonable force to defend the property of others you have a duty to protect [18]

***NOT A DEFENSE: The Victim provoked me (in a non-threatening way)

Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery and are NOT a defense. [19]

***NOT A DEFENSE: Voluntary Intoxication

  • Voluntary intoxication is not a defense to assault with a firearm. [20]

It is important to understand that qualified, experienced criminal defense attorneys will give each client the very best chance of taking advantage of all available defenses. We invite you to contact us for a free consultation if you are serious about hiring an attorney with strong criminal expertise in one of our 6 offices in Santa Rosa, Napa, San Raphael, Lakeport, Ukiah and Eureka.

Punishment for an Assault with a Firearm Conviction

If convicted of assault with a firearm you may face:

  1. Imprisonment in state prison for two, three or four years, or imprisonment in a county jail for between 6 months and a year; OR
  2. Both imprisonment and a fine of up to $10,000

It is important to note that, unlike other crimes that allow for the possibility of a fine with no jail time, a conviction of assault with a firearm does not

Related Offenses

  1. Greater Offenses
    • Assault with a semiautomatic firearm [PC 245(b)]
      1. Definition of semiautomatic firearm: A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger. [21]
      2. Punishment for an assault with a semiautomatic firearm conviction: 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. [22]
    • Assault with a machine gun, assault rifle, or .50 BMG rifle [PC 245(a)(3)]
      1. Definition of machine gun: 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. [23]
      2. Punishment for an assault with a machine gun conviction: 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. [24]
  2. Lesser Included Offenses
  3. Related Offenses

The Law Itself: California Penal Code Section

§ 245. Assault with deadly weapon or by force likely to produce great bodily injury

(a)

  • (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. [25]

[1] Cal Pen Code §§245(a)(3), 245(b)

[2] Cal. Pen Code §16520

[3] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 915

[4] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 915

[5] People v. Williams (2001) 26 Cal.4th 779, 784

[6] People v. Valdez (1985) 175 Cal.App.3d 103, 108

[7] People v. Valdez (1985) 175 Cal.App.3d 103, 108

[8] People v. Valdez (1985) 175 Cal.App.3d 103, 113

[9] Wright v. California (1968) 393 US 896

[10] People v. Daniels (1993) 18 Cal.App.4th 1046

[11] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3470

[12] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3474

[13] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3472

[14] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3471

[15] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3470

[16] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3475

[17] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3476

[18] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3476

[19] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 917

[20] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 875

[21] Cal Pen Code §17140

[22] Cal Pen Code §245(b)

[23] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 875

[24] Cal Pen Code §§245(a)(3)

[25] Cal Pen Code §245(a)(2)

Categories: PC 245: Assault with a Deadly Weapon

Related Articles

Assault: California Penal Code Section 240
Battery: California Penal Code Section 242
Ronald Dinan & Associates, Attorneys & Lawyers, Santa Rosa, CA