Assault With A Firearm

As stated above, certain Assault with a Firearm offenses can be charged as Strikes under the state’s draconian and antiquated “Three Strikes Law” (Penal Code section 667(a)&(b)).

Specifically, you can be charged with a Violent-Felony Strike under California Penal Code section 667.5(c).

if the assault actually resulted in severe physical harm to the victim, if you committed a felonious sex offense during the assault (Penal Code section 667.5(c)(8)), or if you attempted to commit another specified felony. Pen. Code section 667.5(c)(15).

Alternatively, you can be charged with a Serious-Felony Strike under California Penal Code section 1192.7(c));if you:

• “personally used” the firearm (Pen. Code § 1192.7(c)(2));
• if you seriously hurt the person (Pen. Code § 1192.7(c)(8));
• if you committed the assault while intending to rape or rob the victim (Pen. Code § 1192.7(c)(10));
• if you assaulted a cop (Pen. Code § 1192.7(c)(11) & (31));
• if you assaulted the victim while intending “mayhem, sodomy, or oral copulation” in violation of Penal Code § 220;(Pen. Code § 1192.7(c)(29)); or
• if you used a firearm to assault “a public transit employee, custodial officer, or school employee” (Pen.;Code § 1192.7(c)(32)).

In addition to Strike enhancements, you can also get five and ten-year prison-term enhancements (depending on the particular circumstances) for Special Allegations, including the following:

• Personal Discharging of a Firearm During the Commission of a Serious Felony (California Penal Code section 12022.53(c));
• Personal Use of a Firearm During a Felony (California Penal Code section 12022.5);   Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022);
• Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7).;Serious injury is defined as “great bodily injury” (Penal Code section 12022.7);
• Inflicting Great Bodily Injury (GBI) On A Child Under the Age of Five Years (Pen. Code section 12022.7(d));
• Gang Enhancement (California Penal Code section 186.22);
• Hate Crime (California Penal Code section 422.55); and
• Injuring an Elderly Person (California Penal Code section 368(b)(2)).

Assault and Battery Crimes – Assault with a Firearm — Pre-Files/Early Dismissals

As much as one-third of LADALF’s current case load involves what are known as “Pre-Files”, which are criminal matters which haven’t yet been filed by the District Attorney or City Attorney’s Offices as a formal charge They may not have even been referred to the DA or CA’s Offices by the investigating detective.

Pre-Files often involve assault crimes, including Assault with a Firearm (Penal Code section 245(a)(2)). If you somehow find out that you’re being investigated for such a crime, you should immediately contact the LADALF to find out how we can to stop the detective from referring the matter for prosecution, or how we can convince the prosecutor to either not file charges or even to dismiss it shortly after doing so.

The LADALF has – without exaggeration – the most exemplary track record in LA County when it comes to Pre-File successes. Please review our results in our “Cases” dropdown menu on our home page.

California Statutes – Assault and Battery Crimes — Assault with a Firearm

California Penal Code section 245(a)(2);(Assault with a Firearm):

As stated above, this statute criminalizes any assault on someone that involves a gun.

California Penal Code section 245(d) (Assault with a Machine Gun on a Police Officer or Firefighter):

Assaulting a cop or fireman/firewoman will trigger prosecution hereunder – always as a felony — so long as the DA’s Office can prove that you knew, or reasonably should have known, that he/she was performing his/her duties at the time, even if he/she was not in uniform. Pen. Code § 245(d)(1).

California Penal Code section 417(a)(1) & (2);(Brandishing Firearm):

A similar offense involves you waiving around, drawing, or exhibiting a gun (even if it’s not loaded) in front of someone in a “rude, angry or threatening” way, or for any other purpose while you’re in an argument or altercation with that person.

In other words, you don’t even have to point the weapon at him/her, or to otherwise assault him/her, to be charged hereunder.

This is also a “Wobbler” (California Penal Code section 17(b)).

You will be charged with a felony, however, if you brandish the weapon in the presence of a cop – and you knew or reasonably should have known that he/she was a cop. Otherwise, you’ll most likely be charged with a misdemeanor. California Penal Code section 417(c).

Assault and Battery Crimes — Assault with a Firearm — Convictions

California Penal Code section 245(a)(2);(Assault with a Firearm):

If charged as a misdemeanor, your max sentence will be a dozen months in the local county jail facility. A felony conviction, however, will result in low, mid, or high terms of twenty-four, thirty-six, or forty-eight months, respectively, in a state penitentiary.

California Penal Code section 245(d) (Assault with a Machine Gun on a Police Officer or Firefighter):

If you knowingly assaulted a law enforcement officer/agent or a fireman/woman with a gun, and you are convicted of that particular charge, then assuming a prison term is required by the sentencing judge, then you’ll get 4, 6, or 8 yrs. Pen. Code § 245(d)(1).

This range increases by one year if you used a semi-auto weapon: i.e., 5, 7, or 9 yrs. Pen. Code § 245(d)(2).

Finally, the range jumps again if you used an automatic submachine gun or assault rifle. Pen. Code § 245(d)(3).

California Penal Code section 417(a)(1) & (2);(Brandishing Firearm):

If convicted of this crime as a misdemeanor, at most you’ll only get a month in jail. Penal Code section 417(a)(1).

If the crime occurred in public, and you used a handgun or any other concealable gun, and you’re convicted of a misdemeanor, you’ll get a maximum of 12 mos. in jail. Penal Code section 417(a)(2)(A).

But if you’re convicted of a felony for brandishing a gun in front of a cop, then your prison-term range will be sixteen, twenty-four, or thirty-six months. Penal Code section 417(c).

Finally, even if you’re only convicted of misdemeanor Assault with a Firearm, you’ll still lose your right to possess, buy, or sell guns for a decade.

Defenses to Assault and Battery Criminal Charges — Assault with a Firearm

The Judicial Council of California, which operates under the auspices of the state supreme court, sets forth the following defenses in its Criminal Jury Instructions (“CALCRIM”):

• You acted in reasonable self-defense or in defense of a third party/parties
• You were only joking when you exhibited or brandished the firearm
• You inadvertently or accidently exhibited or brandished the firearm
• You didn’t know – nor should you reasonably have known – that the individual was a cop or firefighter.

Some Assault Cases Involving Firearms Defended by the Los Angeles Defense Attorney Law Firm (LADALF)

Mr. W was Almost Assuredly Going to Be Convicted of Sticking Up a Marijuana Shop at Gunpoint, Max: Approx. 25 Years in Prison; Result: No Jail/Prison, Suspended Sentence

People v. L.W. (C.S.F. Crim. Justice Ctr. – October ‘21):

Mr. W and two companions got high on crystal meth, rented a car, grabbed a gun (possibly a fake one), and robbed an MMJ dispensary at gun point on the West Side. This was not a well- thought-out crime as Mr. W was not wearing gloves or a mask, and had his getaway driver park near enough to the shop that its outdoor video cameras filmed the license plate.

In short, Mr. W left evidence all over the place – and because he had rented the car with his own driver’s license, LAPD were able to track and arrest him later that same day.

The charges were as follows:

• 2nd-Degree Robbery (California Penal Code section 212.5(c));
• Robbery in Concert (California Penal Code section 213(a)(1)(A));
• Assault with a Firearm (California Penal Code section 245(a)(2));
• Assault with Intent to Commit a Felony (California Penal Code section 220);
• Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1));
• Making a Criminal Threat (California Penal Code section 422) (because he allegedly threatened to shoot the employee during the incident);
• Strike Offense (California Penal Code section 667(a)&(b)); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”)); and
• Personal Use of a Firearm During a Felony (California Penal Code section 12022.5).

Maximum possible sentence if convicted of all charges (which, based on the evidence, was all but a foregone conclusion): more than twenty-four years in prison.

See Punishments for Robbery (California Penal Code section 213).

And because of the Strike, he’d have to serve at least four-fifths of that term even if he behaved himself.

Fortunately, Mr. W’s family hired Ninaz Saffari, who filed numerous motions and went to extraordinary lengths to convince the judge to give Mr. W a second chance. This process took more than a dozen months, but all her efforts paid off in a virtually unprecedented way. In fact, even the sentencing judge told Mr. W that in his many years on the bench, he had never given a defendant, who was clearly guilty of such serious crimes, such an unbelievable deal.

Result: Mr. W pled out to one count of Robbery (California Penal Code section 211:

https://codes.findlaw.com/ca/penal-code/pen-sect-211.html) and received a suspended sentence of 9 years with 12 months of in-patient drug and mental-health rehabilitation, and 48 mos. of probation. So long as he finishes his treatment and stays out of trouble for those four years, he won’t have to serve even a single day of those 9 years in prison.

Mr. C Facing Life for Attempted Murder; Accepted Drastically Reduced Plea & Zero Jail   People v. J.C.;(C.S.F. Crim. Justice Ctr. – February ‘21):

Mr. C was arrested and charged for the following:

• 1st-Degree Attempted Murder (California Penal Code section 664& California Penal Code section 187(a)); and
• Personally Discharging a Firearm During the Commission of a Felony (California Penal Code section 12022.53(c)).

As a result, he was facing life in prison with potential parole.

The evidence in this case was far weaker than in Mr. W’s above, so Ninaz pressed constantly to try it before a jury. And because the police did such a sloppy job investigating, she also filed numerous motions, including a Motion to Suppress (California Penal Code section 1538.5).

Every hearing was an opportunity for Ninaz to show the Deputy DA how weak his case was. And when the judge finally reviewed her Motion to Suppress and indicated he was leaning towards granting it, the Deputy DA offered Mr. C a plea too tempting to pass up.

Result: Assault with a Firearm (California Penal Code section 245(a)(1)) with no more jail and only 24 mos. of probation.

Innocent Man Looking at Almost 28 Yrs. for ADW/Strike; Acquitted by Downtown Jury

People v. G.S. (C.S.F. Crim. Justice Ctr. — April ‘14):

Mr. S was arrested and prosecuted for allegedly using a semi automatic gun while committing another serious crime so was facing several charges of Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)), as well as a Strike (California Penal Code section 667(a)&(b)).

Maximum sentence: Twenty-seven yrs.

As is her custom, Ninaz kept pressing the DDA to face her in front a jury at trial. Mr. S never once entertained taking any deal, regardless of how tempting, because he was adamant that he was innocent (which, in fact, he was).

Jury Verdict: Mr. S was acquitted on every count and went home that same day.

Ex-Con Prosecuted for Threatening Neighbor with Assault Rifle, Second-Strike Max: 27 Yrs.; Result: Out in 3.5 with Good-Time Credits

People v. S.B. (Gov. Deukmejian Ct. house — Long Beach;– January ‘10)

Mr. B was an Anglo ex-con and alleged prison-gang member who allegedly got too intoxicated one night and got into an altercation with his African-American neighbor at their apartment complex. According to Long Beach PD, Mr. B waved an assault rifle at & threatened the neighbor while calling him the “N” word.

The evidence — which included numerous eyewitnesses, the SWAT team finding the assault rifle in his home, and the fact that he was a convicted felon – was very strong.

Therefore, he was charged with the following:

• Assault w/ Deadly Weapon (Pen. Code § 245(a)(1))   
• Brandishing Firearm (Pen. Code § 417(b));
• Criminal Threat (Pen. Code § 422);
• Felon Possessing a Gun (Pen. Code § 29800);
• Felon Possessing Ammo (Pen. Code § 29800);
• Second Strike (Pen. Code § 667(a)&(b); Pen. Code § 667.5(c) (“Violent Felony”); Pen. Code § 1192.7(c) (“Serious Felony   Gang Enhancement (Pen. Code § 186.22);
• Hate Crime (Pen. Code § 422.55)

Max. sentence: almost 30 yrs.

Result: Reduced to one no-Strike Assault w/ Firearm (Pen. Code § 245(a)(2)); 7 yrs. in prison but out in 3.5 with time served & good behavior.