Conversations touching on firearms are emotive. Over the years, gun control has been an issue pushed by many through laws to mitigate against the threat to public safety. One such issue is assault with a firearm. Any intentional action involving inflicting or threatening to inflict harm to another is assault. Using a gun to threaten or inflict harm that leads to more significant injury to the victim violates PC 245(a)(2). The statute outlines hefty penalties, including prison time and fines if found guilty of assault with firearm charges.

A defense attorney’s input is pivotal. You, therefore, need to get in touch with one as soon as possible. If you or a loved one is arrested or facing assault with firearm charges in Los Angeles, reach out to the Los Angeles Criminal Lawyer team.    

Assault With a Firearm Under PC 245(a)(2)

Assault with a firearm under PC 245(a)(2) is an assault on the victim with a rifle, pistol, semi automatic firearm, shotgun, machine gun, assault weapon, or a 50 BMG rifle. Assault, in this case, could be in the form of aiming at the victim, firing the firearm at the victim, or striking or ‘pistol-whipping’ the victim. 

Specific issues need to be addressed by the prosecution. These issues, elements of the crime, should be proven beyond reasonable doubt for you to be found guilty under PC 245(a)(2). Further, these elements address the crime as defined under PC 245(a)(2).

Prosecutors must prove:

  • You engaged in an act with a firearm — This act resulted in force to the victim
  • Your actions were intentional
  • You were aware of facts that would lead a reasonable individual to conclude that the act would probably result in the application of force to another
  • You had a present ability to apply force with the firearm

The elements address the use of a firearm, application of force, willful action, and the present ability to apply force. Let’s address each of these to understand the crime better.

With a Firearm

Using a firearm in an assault case escalates the crime from a simple assault to a violation of PC 245(a)(2). Firearms are weapons designed to discharge a projectile expelled through a barrel by force through an explosion or any other form of combustion. The following therefore are legally firearms under this definition of firearms.

  • Ordinary firearms — Classic examples include shotguns, pistols, and rifles
  • Machine guns — Weapons that discharge multiple projectiles with one single pull of the trigger
  • Semi Automatic firearms — Weapons that extract the fired cartridge while chambering a fresh one with each pull of the trigger
  • 50 BMG rifles — Rifles firing 50 BMG cartridges
  • Assault rifles — Lightweight rifles with the capability of firing automatically or semi-automatically

As pointed out earlier, a firearm only discharges a projectile through an explosion or combustion. Therefore, BB guns, pellet guns, and air guns are not firearms.

Application of Force

The application of force refers to any offensive or harmful touching. Any slight touching done in an offensive or rude manner also counts as applying force. On the other hand, touching is any act of making contact with another, including through his/her clothing. Additionally, you can touch another indirectly through an object, like a firearm. Touching does not have to result in injury or pain.

This element holds as long as there is a probability that your actions could have resulted in applying force on a victim. Therefore, the application of force is not limited to successfully applying force to another. It also includes taking action towards applying force on another.  A good example would be an individual using a gun to threaten another to do their bidding.

For example, a husband points a gun at his wife to sign an agreement for joint custody of their children. Once the wife signs the papers, the husband walks away, and no one is hurt. That the wife was not hurt does not mean the husband cannot face assault with a firearm charge. He aimed the gun at his wife, and therefore, he would have reasonably applied force should he have fired the gun.  

Willful Action

Willful action means intentional action. However, you don’t need to have intended to break the law, hurt another or gain an unfair advantage. You just have to intend to act.

Present Ability to Apply Force

Present ability in criminal law is related to the attempt. Both address the possibility of you offensively touching or hurting another. You, therefore, attain the present ability to harm another when you have the means or are in a location to do so.

Pointing or waving an unloaded firearm does not meet the threshold from the above definition. However, you will be found guilty if you used the gun to hit or attempt to hit your victim instead of firing it.

Penalties for a PC 245(a)(2) Violation

A conviction under PC 245(a)(2) results in varying penalties. The courts consider the circumstances of the offense and a defendant’s criminal history. Under the circumstances of your case, the courts pay particular consideration to your victim, as will be addressed below. Additionally, the type of firearm factors in a sentence. Ordinary or generic firearms attract misdemeanor penalties, while those discussed below attract felony penalties.

Assault with a firearm attracts either misdemeanor or felony charges.

Misdemeanor offenses are punishable by six months to one year in jail or summary probation. Further, you will part with $1,000 in fines. If you are charged with a felony and use a generic gun, you can serve a formal probation sentence or a prison term of either 2, 3, or 4 years. Additionally, a fine of $10,000 will be imposed. 

If the firearm in the assault case were either a machine gun, 50 BMG rifle, semi automatic rifle, or an assault weapon, your prison sentence would be increased to:

  • 3, 6, or 9 years for using semi automatic firearms, and
  • 4, 8, or 12 years for using a 50 BMG rifle, assault weapon, or machine gun.

Assault With a Firearm on a Firefighter or a LawEnforceent Officer

If the alleged victim in the case was a firefighter or a law enforcement officer who was discharging his/her duties at the time of the assault, and you reasonably knew or should have known that the victim was a firefighter or a law enforcement officer discharging their duties, you are a candidate for harsher penalties.

If the above is proven, you will face felony penalties including:

  • 4, 6, or 8 years in prison if you used an ordinary firearm,
  • 5, 7, or 9 years for using a semiautomatic firearm, and
  • 6, 9, or 12 years for using a machine gun, 50 BMG, or an assault weapon.

Sentence Enhancements for Personal Use of a Firearm

Gun laws have far-reaching effects. Using a firearm triggers the use of PC 12022.5. Under the statute, your sentences will be enhanced if the following are proven:

  • You are convicted of a felony assault with a firearm charge, and
  • You are found to have personally used the gun in committing the offense. In most cases, defendants will be found to have personally used the firearm unless they are accused and subsequently convicted of aiding and abetting a PC 245(a)(2) violation committed by another.

Additional Penalties for an Assault With a Firearm Conviction

A conviction has a ripple effect. The adverse consequences of a PC 245(a)(2) conviction do not end with a prison sentence and a fine. You are looking at a strike on your record and the loss of your firearm rights.

PC 245(a)(2)violations are strikeable offenses. According to California’s Three Strikes Law, a conviction results in a strike on your record. Second strikers, as per the law, receive double the sentences outlined in law a defendant violates of. Third strikers have two prior felony convictions in their record. If convicted under PC 245(a)(2), you will be sentenced to 25 years to life in prison.

Upon conviction, you will lose your firearm, and the government will seize and destroy it. Additionally, you will lose your gun rights. You will not be allowed to own, use, or have a gun in your person. Doing so is illegal and will result in additional penalties. 

Fighting an Assault With a Firearm Charge

As detailed above, PC 245(a)(2) violations attract hefty penalties. Further, the penalties are also disproportionate to the allegations, especially if the alleged victim did not sue for any injuries. Fortunately, experienced criminal attorneys are uniquely positioned to fight these charges. Here’s a look at some of the defenses they can use in fighting the charges.  

Self-defense or in Defense of Others

Defense for self or others applies when you use force proportionate to deter an imminent threat to you or another. Both the threat and force used are held to a reasonable standard, that is, if a reasonable person would consider the danger as actual and further, take the actions you took to counter the threat. 

Since a firearm is used, the threat should be a life or death situation, and only then would the use of a firearm be justifiable. The threat of a minor injury is not enough.

Reasonable use of force also requires that you stop applying said force when the danger is over. In such situations, the threat is over when the attacker is incapacitated or leaves the incident scene.

Lack of Intent

A jury only finds a defendant guilty if it is proven that the defendant willfully used the firearm to attempt or inflict the victim bodily harm. You will not be found guilty of assault with a firearm charge in the absence of intent.

As a defense strategy, your attorneys will demonstrate that your actions, though willful, lacked intent. Actions misinterpreted by the victim as a deliberate intent to inflict injury or accidental actions are options your attorney will present, and both actions lack intent.

False Allegations

False allegations are not uncommon. Prosecutions for PC 245(a)(2) originate from the alleged victim’s report to the police officers. Driven by anger, need for revenge, or jealousy, the alleged victim, can claim an assault with a firearm. Therefore, their allegations are tainted and give an opportunity to challenge them under the false allegations’ argument.

Mistaken Identity

If the victim could not see their attacker, your identification as the perpetrator comes to question. Additionally, presenting evidence in support of your alibi away from the scene of the incident helps your case.

You Used a Non-Lethal Weapon

An inherently deadly weapon must be used for you to be found guilty under PC 245(a)(2). If you used a weapon other than an ordinary firearm, machine gun, semiautomatic firearm, 50 BMG rifle, or an assault rifle, you would not be found guilty. However, it is rare for charges to be introduced for use of non-lethal weapons, but it can happen. If it occurs, this argument will be viable for your defense.   

Crimes Related to Assault With a Firearm Charges

Prosecutors may decide to introduce the following offenses and charge you alongside or instead of the PC 245(a)(2) violation.  The offenses include

  • Simple assault — A PC 240 violation
  • Assault with a deadly weapon — A PC 245(a)(1)violation
  • Brandishing a firearm — A PC 417 violation
  • Attempted murder — A PC 664/87(a) violation


  1. Simple Assault

Elements required for a guilty verdict in a simple assault case are similar to assault with a firearm charge.  The only difference with simple assault cases is the lack of a firearm. Therefore, if prosecutors fail to prove you used a gun, they will introduce simple assault charges.

Simple assault is a misdemeanor offense. A conviction is punishable by up to six months in jail and a fine not exceeding $1,000.

  1. Assault With a Deadly Weapon

Assault with a deadly weapon is similar to assault with a firearm, and this means the elements are similar to those detailed under PC 245(a)(2. The only point of departure is that a  PC 245(a)(1) violation involves a deadly weapon other than a firearm. The force is likely to result in significant bodily injury.

Violating PC 245(a)(1) is a wobbler offense. You can either be charged with a misdemeanor or felony offense. Misdemeanor convictions result in either summary probation or one year in jail. Additionally, you will part with up to $1,000 in fines. Felony convictions, on the other hand, result in formal probation or up to four years in prison. You will also be required to pay up to $10,000 in fines.

The penalties increase if a firearm is used and if the victim is a firefighter or a law enforcement officer.     

  1. Brandishing a Firearm

It is an offense under PC 417 to exhibit, draw or use a deadly weapon, including a firearm. All these actions are examples of brandishing a weapon. Most PC 417 offenders use their guns or other deadly weapons threateningly or in a fight or quarrel. However, the actions are not in self-defense.

Prosecutor must prove the following:

  • The defendant used their gun or deadly weapon in the presence of another
  • The defendant did so in a threatening, rude, or angry manner
  • The weapon was used in a quarrel or fight
  • The defendant’s actions were not in self-defense

PC 417 offenses are wobblers. Misdemeanor offenders risk one year in jail if convicted, while felony offenders receive a three-year prison sentence upon conviction.

  1. Attempted Murder

For attempted murder, prosecutors need to prove your intention to kill another. Your actions to direct but ineffectively kill a person will also be enough to find you guilty for the offense.  

Attempted murder can either be in the first or second degree. First-degree offenses result in life imprisonment with a possibility of parole. If the victim was a police officer, a firefighter, or a protected individual, the defendant must serve at least 15 years before they are eligible for parole.

Second-degree attempted murder offenders risk 5, 7, or 9 years in prison. Additionally, they will have to part with a $10,000 fine and pay restitution fees.

Engage a Los Angeles Criminal Defense Attorney Near Me

Charges for assault with a firearm have grave consequences. Fines, time behind bars, and loss of gun rights are not the only adverse impacts of a conviction under PC 245(a)(2). Your social and financial opportunities will be negatively impacted. Owning property, securing employment, and engaging with friends and the community will be challenging due to your conviction. Don’t let this be your story.

At Los Angeles Criminal Lawyer, we represent and offer legal counsel to individuals arrested for or are facing prosecution for assault with a firearm charge. An attorney is your best option at securing the best outcome in your case. Call us today at 310-502-1314 if you or a loved one has been arrested or is facing assault with a firearm charge in Los Angeles.