Assault with a firearm is a serious California criminal charge that does not require the alleged victim to actually be shot or injured. Prosecutors must prove the elements of assault and that the defendant had the present ability to apply force with a firearm. The circumstances of the alleged assault and the type of firearm involved can significantly affect the potential consequences.
California Penal Code section 245 addresses several forms of aggravated assault, including assault with a firearm.
A person can potentially be charged even when no shot was fired and no one was physically injured.
However, the prosecution must prove each element of the offense beyond a reasonable doubt.
What Is Assault With a Firearm?
Under California law, assault with a firearm generally involves committing an assault upon another person with a firearm.
For a charge under Penal Code section 245, the prosecution generally must establish that:
- The defendant committed an act with a firearm that by its nature would directly and probably result in the application of force to another person;
- The defendant acted willfully;
- When the defendant acted, the defendant was aware of facts that would lead a reasonable person to realize the act would directly and probably result in force being applied to someone;
- The defendant had the present ability to apply force with the firearm; and
- When applicable, the defendant did not act in lawful self-defense or defense of another person.
California assault law does not require prosecutors to prove that the defendant specifically intended to injure someone.
Does Someone Have to Be Shot or Injured?
No.
Assault and battery are different offenses.
An assault can be completed without the firearm actually touching or injuring the alleged victim.
The focus is on the defendant’s alleged act, knowledge of the circumstances, and present ability to apply force.
This means an assault-with-a-firearm prosecution can potentially arise from conduct involving pointing, displaying, firing, or otherwise using a firearm even when nobody is struck by a bullet.
Does the Gun Have to Be Loaded?
The issue is more nuanced than simply asking whether the firearm was loaded at a particular instant.
California law requires that the defendant have the present ability to apply force with the firearm.
A loaded firearm can satisfy that requirement.
An unloaded firearm generally cannot immediately fire a projectile. However, California law recognizes circumstances in which present ability may still exist when ammunition is readily available and the firearm can be loaded immediately.
A firearm can also potentially be used as an impact weapon. For example, striking someone with a firearm may constitute an assault involving the firearm regardless of whether it could be fired at that moment.
The particular facts therefore matter.
What Does “Present Ability” Mean?
Present ability is an important element of California assault law.
The prosecution must establish that when the defendant acted, the defendant had the present ability to apply force with the firearm.
This requirement can become a significant issue when:
- The firearm was unloaded
- Ammunition was stored separately
- The firearm allegedly malfunctioned
- The firearm was incapable of firing
- The defendant allegedly intended to use the firearm as an impact weapon
- The defendant did not have immediate access to ammunition
Whether present ability existed depends on the circumstances rather than simply the appearance of the firearm.
Does Assault With a Firearm Require Intent to Hurt Someone?
Not necessarily.
California assault is not a specific-intent crime requiring prosecutors to prove that the defendant intended to injure the alleged victim.
Instead, the prosecution must establish a willful act along with the knowledge required by California assault law.
Someone can therefore potentially commit an assault even if the person later claims there was no intention to actually shoot or injure anyone.
That does not eliminate the prosecution’s obligation to prove the required act, awareness of the relevant facts, and present ability to apply force.
What Types of Firearms Are Covered by Penal Code 245?
Penal Code section 245 distinguishes among different types of firearms.
The potential charge and punishment can depend on whether the allegation involves:
- A firearm generally
- A semiautomatic firearm
- A machine gun
- An assault weapon
- A .50 BMG rifle
Because California law treats certain weapons differently, identifying exactly what type of firearm the prosecution alleges was used is important.
Is Assault With a Firearm the Same as Brandishing a Firearm?
No.
Brandishing and assault with a firearm are separate California offenses.
Penal Code section 417 generally addresses drawing or exhibiting a firearm or other deadly weapon in a rude, angry, or threatening manner, except in lawful self-defense.
Assault with a firearm under Penal Code section 245 has different elements.
The circumstances surrounding how a firearm was displayed, pointed, handled, or allegedly used can determine which charges prosecutors pursue.
Is Firing a Gun Required?
No.
A firearm does not have to be discharged for an assault-with-a-firearm charge.
At the same time, merely being in possession of a firearm does not automatically establish assault with a firearm.
The prosecution must prove the conduct and other elements required for assault.
If a firearm was actually discharged, additional charges or sentencing allegations may also become relevant depending on the circumstances.
Can Self-Defense Be a Defense to Assault With a Firearm?
Yes.
California recognizes lawful self-defense and defense of another person.
Generally, self-defense can apply when a person reasonably believes that they or someone else is in imminent danger of suffering bodily injury or being unlawfully touched, reasonably believes immediate use of force is necessary, and uses no more force than reasonably necessary under the circumstances.
The level of force that is legally justified depends on the threat being confronted.
When sufficient evidence of self-defense or defense of another is presented, the prosecution must prove beyond a reasonable doubt that the defendant did not act lawfully in self-defense or defense of another.
What Other Defenses May Apply?
The appropriate defense depends on the facts.
Potential issues can include:
- The defendant did not commit the alleged act
- False accusation or mistaken identification
- The defendant lacked the required present ability to apply force
- The prosecution cannot prove the defendant had the required awareness of the circumstances
- The defendant acted in lawful self-defense or defense of another
- The object involved did not satisfy the applicable firearm definition
- Witness accounts are inconsistent or unreliable
- Physical, video, forensic, or other evidence contradicts the accusation
A defense should be based on the evidence rather than assuming that every assault-with-a-firearm case presents the same issues.
What Are the Penalties for Assault With a Firearm?
The potential punishment depends on the particular subsection charged and circumstances of the offense.
Relevant factors can include:
- The type of firearm allegedly used
- Whether the alleged victim was a peace officer or firefighter engaged in the performance of duties and the defendant knew or reasonably should have known that fact
- The defendant’s criminal history
- Whether additional offenses are charged
- Whether sentencing enhancements are alleged
Some violations can be prosecuted as either misdemeanors or felonies, while other firearm-related assault offenses carry more severe felony punishment.
For that reason, the exact Penal Code subsection charged matters when evaluating potential sentencing exposure.
Is Assault With a Firearm a Strike in California?
Certain assault-with-a-firearm convictions can qualify as serious or violent felonies for purposes of California sentencing law, including the Three Strikes framework.
But the consequences depend on the particular conviction and statutory circumstances.
It is better to determine whether the specific offense actually qualifies rather than assume that every case involving Penal Code section 245 produces identical strike consequences.
Can an Assault With a Firearm Conviction Affect Gun Rights?
Yes.
A felony conviction generally creates a California firearm prohibition under Penal Code section 29800.
California and federal firearm restrictions can also arise from other convictions or circumstances.
The duration and scope of a firearm prohibition depend on the actual conviction and the law that creates the prohibition.
For more information, see our guide to California gun rights after a criminal conviction.
Can Other Gun Charges Be Filed in the Same Case?
Yes.
Depending on the circumstances, an assault-with-a-firearm case can involve additional allegations involving:
- Unlawful firearm possession
- Carrying a concealed firearm
- Carrying a loaded firearm
- Possession by a prohibited person
- Brandishing
- Criminal threats
- Firearm sentencing enhancements
The existence of one firearm charge does not automatically establish another. Each offense or enhancement has its own requirements.
For an overview, see our guide to California gun charges and firearm enhancements.
What If the Firearm Was Found During a Police Search?
A firearm case can also raise Fourth Amendment issues.
If police obtained the firearm through a traffic stop, vehicle search, home search, or detention, the defense may examine whether officers had lawful grounds for the stop and search.
Evidence obtained through an unconstitutional search or seizure may potentially be subject to suppression.
The legality of a search depends on the circumstances.
Talk to a Fresno Assault With a Firearm Attorney
An assault-with-a-firearm accusation can expose a defendant to significant criminal penalties and long-term consequences.
These cases can turn on issues involving present ability, witness credibility, self-defense, firearm classification, physical evidence, and the circumstances surrounding the alleged confrontation.
Gregory W. Fox has more than 20 years of experience defending people accused of California criminal offenses.
If you have been arrested or charged with assault involving a firearm in Fresno or Central California, visit our Fresno Assault & Battery Attorney or Fresno Gun & Weapons Charges Attorney pages, or call the Law Office of Gregory W. Fox at (559) 222-5800 to request a confidential consultation.