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When a person receives a charge of assault with a firearm, the penalty of this conviction is dependent on what type of firearm was used, under what circumstances the firearm was used, and who it was used on. The charge may also be lowered if it is shown that there was no ammunition in the firearm, such as a magazine or a bullet in the chamber.

The Variables of the Charge

            California Penal Code 245 covers the specifics of variable circumstances for which a person may receive a conviction of assault with a firearm. While the word “assault” implies that someone hit another person, in the case of a firearm, pointing the muzzle of the firearm at a person is considered an assault. Such an action implies that harm is intended by the person holding the firearm pointed at another person, the victim, and that further action (a shooting) may follow.

            For such an action, the penalty would be from two, three, or four years in a state prison, or under lesser circumstances, county jail from six months to one year. A fine of $10,000 or less, may also be applied. While not explicitly defined, the defendant holds a revolver, pointing it at another person, for whatever reason the defendant has. Which brings us to the next part.

            When a defendant holds a semiautomatic firearm pointed at another person, the penalty is higher, with time in a state prison from three, or six years, up to nine years. The next level up is assault using a machinegun (PC 16880), an assault firearm (PC 30510 or 30515), or a .50 BMG rifle (PC 30530), can serve time in state prison from four, or eight, to 12 years.

            When the assault with a firearm is conducted on a peace office or firefighter, who is acting within the course of his or her daily duties, then the penalties move to a higher level. The local government instructs peace officers and firefighters to carry out duties of protection that are to ensure the safety of the local population. As such, to aim a firearm at any of these people, is to also aim at the local government in a threatening manner.

Penalties for Assault with a Firearm on a Peace Officer or Firefighter

            When a defendant commits assault with a firearm on a peace office or firefighter, the least penalty is time spent in state prison from four, or six years, up to eight years. When a semiautomatic firearm is used, the penalty is five, seven, or nine years in state prison. When a machine gun, assault firearm, or .50 BMG rifle is used, then the penalty is six years, nine years, up to 12 years in state prison.

The Defense of the Charge

  • You were acting in self-defense of either yourself or another person
  • Your intent was not to cause harm to another but to protect against harm being done by anyone present,
  • No present ability, which means the firearm was not loaded and there was no bullet in the chamber, such as in a semiautomatic firearm.

Unfortunately, a peace officer may misinterpret a scene, or may also have an overbearing, belligerent personality, and may take steps that are beyond his or her legal right while making an arrest. Such a situation may include screaming at a defendant or holding a firearm to the defendant’s head after already putting on the handcuffs.

If you have received a charge of assault with a firearm, call us at once for a consultation. (619) 234-2300

Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

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