Assault with a Firearm

Penal Code 245 –Assault with a Firearm in California

In California, there is a law that makes it illegal to attempt to hurt someone, otherwise known as assault. In addition to that, there are enhanced penalties in an assault case if it involves the commission of a firearm that is likely to result in great bodily injury. Similar to assault with a deadly weapon [web link], this is a more specific and serious type of assault that can be prosecuted under California Penal Code 245(a)(2).

How Can I Be Convicted of Assault with a Firearm?

Section 245(a)(b) of the Penal Code sets out the elements of proof of assault with a firearm.  Under California Law, the prosecution has what is know as the “burden of proof”, which means that they must show that each element is true in order to prove someone guilty of the offense.  

The prosecutor has to prove beyond a reasonable doubt that: 

  1. You acted with a firearm that by its nature would directly and probably result in injury or death.  
  2. You acted willfully 
  3. When you acted, you were aware that the act would lead to a reasonable person to realize that his or her act, by its nature, would directly and probably result in the application of force to someone. 


  1. When the defendant acted, he or she had the present ability to apply force with a firearm.

Notice that no injury or firing of the firearm is required under the statute. Also, if the defendant points an unloaded firearm at another person, he or she cannot be convicted for assault with a firearm (PC 245(a)(2)), because he or she lacked the present ability to commit a violent felony.

If, after hearing all of the evidence, a jury has reasonable doubt as to any of the above elements, then the defendant will be found “not guilty” of assault with a firearm under PC 245(a)(b).


  • Shooting at someone though intentionally missing them. For example, pulling a prank on a friend while hunting.  
  • Waving a loaded firearm at a person 
  • Pistol whipping a person with a loaded or unloaded firearm

A Closer Look at Assault with a Firearm

What is the difference between assault and battery?

Assault describes threatening conduct that does not necessarily amount to physical touching. Under California law, it is defined as the unlawful attempt to commit a violent injury on someone else. Assault can occur even if no one is injured, and it does not matter whether the defendant specifically intended to hurt or threaten the victim in any way. Battery, on the other hand, require physical contact, whether it be directly or indirectly.

What defines willful conduct? 

The act was committed on purpose, regardless of whether you intended to break the law, hurt anyone, or gain any advantage. Assault with a firearm under PC 245(a)(2) is considered a general intent crime [web link].  In this way, the prosecution does not have to prove that the defendant actually intended to hurt or threaten the victim, but only that the defendant acted willfully in such a way that threatened force on the victim.

What counts as a firearm?

California Penal code describes a firearm as a device that is 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 the following: 

  • Semiautomatic pistol
  • Machine gun
  • .50 BMG riles 
  • Assault weapons 

Note, it does not include BB guns, air guns, or pellet guns, as they do not use an explosion or combustion.

What is the application of force?

It is to touch someone in a harmful or offensive manner, even the slightest touch can be enough if it is done a rude or angry way. The touching does not have to cause pain or injury of any kind and it can be done indirectly by causing an object to touch another person. 

-shooting into a crowded room

What is present ability? 

To have a firearm. 

However, if the firearm is unloaded, the defendant lacks the present ability to apply force. However, there is present ability if the firearm is used to strike someone.

What are the penalties for assault with a firearm? 

Penalties for assault with a firearm depends on a number of factors, such as what type of firearm was used and if there are sentencing enhancements.

Assault with a firearm as a misdemeanor or felony: 

If the firearm involved was an “ordinary” or “generic” firearm, that is, not an assault weapon or semiautomatic firearm, then the offense is a wobbler. This means you can be charged with either a misdemeanor or felony. This depends on the circumstances of the offense and the defendant’s criminal history. 

If you are found guilty of assault with a generic firearm as a MISDEMEANOR:  

  • Maximum one (1) year in county jail  
  • A fine not exceeding one thousand dollars ($1,000) 
  • Or both a fine and imprisonment 

If you are found guilty of assault with a generic firearm as a FELONY: 

  • State prison time of two (2), three (3), or four (4) years may be imposed
  • A fine not exceeding ten thousand dollars ($10,000)

Assault with a firearm as a felony: 

If the firearm was a machine gun, assault weapon, or a .50 BMG rifle, it will always be charged as a felony. If you are found guilty, the sentence increases to: 

  • State prison time of four (4), eight (8), or twelve years (12). 
  • If the firearm was a semiautomatic firearm: 
  • State prison of three (3), six (6), or nine (9) years may be imposed. 
  • Penalties for assault with a machine gun, assault weapon, or a .50 BMG rifle 
  • If a machine gun, assault weapon, or a .50 BMG rifle are used it s always a felony.
  • If you are convicted of any felony, you will be prohibited from possessing or owning a firearm under California’s felon with a firearm law.

Sentencing enhancements for assault against a peace officer or firefighter: 

Prison time may be enhanced if you commit assault with a firearm upon a peace officer or a firefighter. The defendant must have reasonably known during the time of assault that the victim was a peace officer or firefighter engaged in the performance of his or her duties.

The sentence will depend on the firearm used:                          

  • Generic firearm: four, six, or eight years in state prison 
  • Semiautomatic firearm: five (5), seven (7), or nine (9) years in state prison 
  • Machine gun, assault weapon, or .50 BMG rifle: six (6), nine (9) , or twelve 12 years in state prison  

California’s Three Strikes Law: 

A conviction for assault with a firearm is considered a “strike” under California’s Three Strikes Law. A strike will be imposed on your criminal record and it can be used to double the penalties on future convictions. A third strike can result in a state prison term of at least 25 years to life. 

Legal Defenses for assault with a firearm cases: 

Our criminal defense attorneys are well versed in taking on crimes varying in nature and severity. A conviction for assault with a firearm can cause life-long consequences. The penalties for this offense can be very harsh when considering that the victim was not actually injured. Below are some of the best legal defenses that can get the charges reduced or dismissed.

Self-defense and the defense of others

This works if the defendant both honestly and reasonably believed in the need to resort to force in order to avert imminent and grave injury. This too applies to the defense of others. These are as follows: 

There was imminent threat: 

The harm was right about to happen and this can be accomplished through words that imply a threat of force or an actual show of force. The threat must invoke fear; mere offensive language does not support a claim for self-defense. 

What is reasonable fear? 

Fear is assessed according to what an ordinary and reasonable person would do under the circumstances. For instance, if a reasonable person would also have believed that a toy gun way a real threat, and would have responded with fear, then the defendant’s actions would be considered self-defense.  However, if the defendant acted out of fear but it does not meet the reasonable person standard, this is called imperfect self-defense and it will not act as a complete defense, but it can lessen the charges. 

What is proportional force?

The force used must be proportional to the the threat faced. Deadly force cannot be used to a threat that was not deadly. If the defendant if faced with the threat of being punched in the face, he or she cannot respond with stabbing the other person. 

Once there is no longer a threat of harm, the right to defend oneself through force also dissipates. 

Lack of intent 

Acting willfully is an element of of PC 245(a)(2). This mean you could have been acting carelessly when you made a gesture that appeared to be aggressive or angry. However, this defense cannot be used if you aimed a loaded firearm at someone with no intent to fire the weapon. 

You have been falsely accused 

Assault with a firearm does not require the victim to suffer an actual injury, therefore it makes it easier for someone to fabricate allegations. This scenario is most frequently seen during allegations of domestic violence.

You did not have the present ability 


If you have been charged with assault with a firearm in the San Francisco Bay Area, it is important to consult with an attorney right away, as a conviction can cause lifelong consequences. Our job is to reduce that stress and work with you in earning the best possible outcome, whether that be a dismissal or a plea deal. 

If you are ready to discuss your case, contact our experienced attorneys at (510) 988-5566 for a free and confidential consultation.