| Assault with a Firearm | | | | firearm, and the firearm is owned by that |
| | | | person, the court shall order that the weapon |
| Assault with a firearm is governed by | | | | or instrument or firearm be deemed a |
| California Penal Code Section 245. Assault | | | | nuisance, and it shall be confiscated and |
| with a firearm is an aggravated assault in | | | | disposed of . |
| which the defendant, with a firearm, | | | | |
| threatens a person with death or serious | | | | In a conviction for assault with a deadly |
| bodily injury. An aggravated assault is an | | | | weapon, where the crime took place from a |
| assault accompanied by circumstances that | | | | vehicle, or towards an occupied vehicle, the |
| make it more severe, namely the use of a | | | | occupants of which were assaulted by the use |
| firearm, or the intent to commit another | | | | of a firearm, the vehicle will be ordered to |
| crime, or the intent to cause serious bodily | | | | be surrendered to the sheriff of the county |
| harm. | | | | or the chiefl of police of the city in which |
| | | | the violation occurred, in order for the |
| The punishment for the use of a firearm in an | | | | vehicle to be sold. |
| assault varies, depending on whether the | | | | |
| crime is classified as a misdemeanor, felony, | | | | Defenses |
| or wobbler. A misdemeanor is punishable by | | | | |
| imprisonment in a county jail for up to one | | | | The best defense for an assault would be the |
| year. A felony is punishable by | | | | use of force in defense of oneself or on |
| imprisonment in a state prison for over one | | | | behalf of another. In preparing the criminal |
| year. Where charged as a felony, the | | | | defense, it's important to carefully analyze |
| conviction for assault with a firearm acts as | | | | how contact with the other person came to be. |
| a Strike, under California's Three Strikes | | | | If a person was defending himself or another |
| and You're Out campaign, where 3 violent | | | | person, then self-defense may be a valid |
| felonies will bring a sentence of 25 years to | | | | defense. For example, the evidence most |
| life in state prison. Wobblers are those | | | | favorable to a defendant could be indicated |
| crimes which may be determined to be either a | | | | by being drawn into a fight when the victim |
| felony or a misdemeanor. At times, a prior | | | | kicked the defendant and struck him on the |
| conviction may turn an offense that can be | | | | jaw. If there was no evidence suggesting |
| charged or punished as a misdemeanor or a | | | | that either the victim or his companions were |
| felony into a straight felony. However, the | | | | armed, then using physical force would be |
| Three Strikes laws do not have the effect of | | | | reasonable to counteract opposing physical |
| turning wobblers into straight felonies. | | | | force. California jury instructions |
| | | | (CALJIC) No. 5.31 places a limitation on the |
| Generally, assault with a firearm will be | | | | amount of retaliatory force which may be used |
| punished by imprisonment in the state prison | | | | against an assault with fists. Such an |
| for 2, 3, or 4 years, or in a county jail six | | | | assault does not justify the use of a deadly |
| months and one year, or by both a fine of up | | | | weapon in self-defense. However, CALJIC No. |
| to $10,000 and imprisonment. However, this | | | | 5.30 instructs that a person being subjected |
| punishment formula varies, dependent on who | | | | to an assault may use all force he believes |
| the victim is, what type of firearm was used, | | | | reasonably necessary to prevent an injury |
| and where the crime occurred: | | | | which appears imminent. CALJIC No. 5.32 |
| | | | instructs that it is lawful for a person who |
| Any person who commits an assault | | | | reasonably believes that another person is |
| upon another person with a machinegun, | | | | about to be physically attacked to defend |
| assault weapon, or a .50 BMG rifle, will be | | | | that person with all the force and means |
| punished by imprisonment in the state prison | | | | reasonably necessary to prevent the injury |
| for 4, 8, or 12 years. | | | | which appears to be imminent. The standard |
| | | | used in the above cited jury instructions |
| Any person who commits an assault | | | | calls for a standard of a "reasonable |
| upon another person with a semiautomatic | | | | person." This is an artificial construct of |
| firearm will be punished by imprisonment in | | | | what a reasonable person would do under the |
| the state prison for 3, 6, or 9 years. | | | | same or similar circumstances. Therefore, |
| | | | what the person involved found reasonable is |
| Any person who commits an assault | | | | not the reasonable standard relied upon, but |
| with a deadly weapon upon an operator, | | | | rather what an imaginary "reasonable person" |
| driver, or passenger on a bus, taxi, or | | | | would do. |
| metrolink train, etc., will be punished by | | | | |
| imprisonment in the state prison for 3, 4, or | | | | Assault with a firearm is a general intent |
| 5 years. | | | | crime. This means that it is not necessary |
| | | | that the defendant intend to produce the |
| Any person who commits an assault | | | | exact consequences of the crime, rather it is |
| with a deadly weapon upon a custodial officer | | | | enough that they intended to cause their own |
| engaged in the performance of his duties, | | | | physical action, the assault itself. |
| will be punished by imprisonment in the state | | | | However, general intent crimes such as |
| prison for 3, 4, or 5 years. | | | | assault may be negated by reason of an honest |
| | | | and reasonable mistake of fact. If the jury |
| Any person who commits an assault | | | | finds this to be true, they must find the |
| with a firearm upon a school employee, and | | | | defendant not guilty. |
| who knows or reasonably should know that the | | | | |
| victim is a school employee engaged in the | | | | The prosecutions burden of proof is to prove |
| performance of his or her duties, shall be | | | | that the defendant is guilty "beyond a |
| punished by imprisonment in the state prison | | | | reasonable doubt." This is a high standard. |
| for four, six, or eight years, or in a county | | | | If the jury finds that there is reasonable |
| jail for not less than six months and not | | | | doubt as to a defendant's guilt, they must |
| exceeding one year (wobbler). | | | | find the defendant not guilty. Using |
| | | | physical force upon another person is not |
| Additional penalties | | | | unlawful if done in a lawful self-defense. |
| | | | Therefore, so long as the jury hears the |
| In addition to imprisonment, there are | | | | evidence supporting self-defense, and they |
| additional penalties that may be meted out in | | | | believe it, even only so much as to create |
| an assault with a firearm conviction. When a | | | | reasonable doubt, the jury must make a |
| person is convicted of assault with a | | | | finding of not guilty. |