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Assault with a Firearm
What does the prosecutor have to prove to show my guilt for “assault with a firearm?”
To prove that you are guilty of assault with a firearm (under California Penal Code 245(a)(2) PC), the prosecutor must prove that you either shot someone with a gun, fired a gun at somebody or pistol-whipped or bludgeoned a person with a gun. You can also be charged with Cal. Pen. Code Section 245(a)(2) even if you so much as pointed a loaded firearm at somebody in a menacing fashion.
If you are convicted under Cal. Pen. Code Section 245(a)(2), “realignment” (that is, where non-strikers, non-violent offenders, and non-sex offenders are no longer sentenced to state prison) will not protect you from state prison because assault with a weapon is a violent offense. Therefore, you could be suffer a state prison commitment. In fact, if the government files the case in connection to a charge of attempted murder, you could be facing life in prison.
That’s why it’s critical that you hire only the best possible criminal defense team to protect you against such a horrendous fate. With over 53 combined years of experienced and a lengthy track record of getting acquittals and dismissals, our Torrance assault defense lawyers can marshal a powerful defense against assault-with-a-weapon charges. Using our vast knowledge of any and all available legal and factual defenses, McGregor & Ernenwein Criminal Defense Lawyers will advance an aggressive and tireless effort in pursuit of a dismissal of your case.
What exactly qualifies as “assault with a firearm?”
It’s important to distinguish “simple assault” from “assault with a firearm,” which would be considered “aggravated assault.”
According to California Penal Code Section 240 PC, a “simple assault” is
1) an unlawful attempt,
2) to inflict physical injury on another person,
3) coupled with the present ability to carry it out.
As serious as “simple” assault may be, once the perpetrator carries out the assault with a firearm, the charge elevates in degree of severity.
However, to convict you of assault-with-a-firearm, the prosecutor need only show the following elements:
1) that you assaulted the alleged victim, and;
2) that you used a firearm in the commission of the assault.
What exactly qualifies as a “firearm?”
There are various types of firearms addressed in the Penal Code.
According to Section 12001 of the California Penal Code, a firearm is “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.”
There are, of course, types of firearms. One such type is the “assault weapon.”
According to the California Criminal Jury Instruction (or CALJIC), an assault weapon is a firearm “of such...nature and with such...high rate of fire and capacity for firepower that [it’s] function as [a] legitimate sports or recreational [firearm] is substantially outweighed by the danger that [it] can be used to kill and injure human beings.” Id. at 9.02.1. (Types of assault weapons prohibited by California law are listed in Penal Code Sections 12276 and 12276.1).
Also, there is the semiautomatic firearm, which is cartridge-operated and allows the user to fire until the cartridge is exhausted. Another type of firearm is a “machine gun,” which is a weapon that shoots, is designed to shoot or can readily be reequipped to fire in excess of one shot by the pulling of a trigger, not necessitating reloading. Unlike semi-automatic firearms, which require one pull-of-the-trigger per bullet fired, a machine gun is designed to fire as long as the trigger is held down.
Then, there is something called a .50 BMG (Browning Machine Gun) rifle. The .50 BMG rifle is neither an assault weapon nor (though so-titled) a machine gun. In actuality, it is a center-fire rifle can fire a .50 BMG cartridge.
What difference does it make what type of gun is used in an assault?
It makes a big difference. Very big.
If you are found guilty of using a firearm, you can be imprisoned for anywhere from two, to three to four years in the state prison, or in county jail for no less than six months. But if you committed the assault with a semiautomatic firearm, you can receive a state prison commitment for three to six to nine years. And if you used a machine gun or an assault weapon, you can be imprisoned for anywhere from 4 to 8 to 12 years in the state prison!
You probably have many questions about the charge you may be facing. That’s why we invite you to contact us immediately at 310-782-0552. We will give you a free consultation to accurately review and assess your case, as well as any possible defenses and strategies.
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Law Offices of McGregor & Ernenwein
Crenshaw Professional Building
1405 Crenshaw Boulevard
Torrance, CA 90501
Phone: 310-782-0552
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