Shooting Crimes

Most of the foregoing charges will be charged as Strike Offenses (California Penal Code section 667(a)&(b)): https://codes.findlaw.com/ca/penal-code/pen-sect-667.html

As a result, you could face significant sentencing enhancements if you were previously convicted of a either a “Violent Felony” as defined in California Penal Code section 667.5: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=667.5.&lawCode=PEN

, or a “Serious Felony” as defined in California Penal Code section 1192.7: https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html

More specifically, under Penal Code section 1192.7(c), a “Serious Felony” includes:

(8) any felony in which you cause severe physical harm to someone (including by shooting him/her), or where you used a gun (such as pistol-whipping or shooting the victim);

(31) any felony where you used any type of gun to assault a police officer or firefighter pursuant to California Penal Code section 245(d)(1) (https://codes.findlaw.com/ca/penal-code/pen-sect-245.html);

(33) any felony where you discharged a gun at an occupied residence, automobile, or airplane in pursuant to California Penal Code section 246 (https://codes.findlaw.com/ca/penal-code/pen-sect-246.html); and

(36) any felony where you fired a gun from an automobile pursuant to subdivision (c) or (d) of California Penal Code section 26100 (c) or (d) (https://codes.findlaw.com/ca/penal-code/pen-sect-26100.html).

California Statutes – Violent Crimes — Shooting Crimes

California Penal Code section 245(a)(2) (Assault with a Firearm): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html

This Penal Code section covers a number of different assault crimes, though most involve guns. Assaulting someone with a gun can take the following forms:

1. You (allegedly) pointed the firearm at a person;
2. You struck or beat him/her with it;
3. You unsuccessfully shot at him/her; or
4. You successfully shot him/her.

Depending on the specific facts, you can be charged with either a misdemeanor or a felony. As a result, this is known as a “Wobbler” (California Penal Code section 17(b)): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html

California Penal Code section 245(a)(3)

This particular provision covers assault with a machine gun or an assault rifle, as defined in California Penal Code section 30510: https://codes.findlaw.com/ca/penal-code/pen-sect-30510.html

, California Penal Code section 30515: https://codes.findlaw.com/ca/penal-code/pen-sect-30515.html

, or California Penal Code section 30530: https://codes.findlaw.com/ca/penal-code/pen-sect-30530.html

This offense is always charged as a felony.

California Penal Code section 245(b)

This crime involves assaulting someone with a semi-automatic firearm (i.e., either a pistol or “long gun”, such as an assault-type weapon), and is always charged as a felony.

California Penal Code section 245(d)(1)

If you (allegedly) assaulted a police officer or firefighter with a firearm when you knew or reasonably should have known that he/she was performing his/her duty at the time, you will be charged with a felony.

California Penal Code section 245(d)(2)

If you (allegedly) assaulted a police officer or firefighter with a semi-automatic weapon when you knew or reasonably should have that known he/she was performing his/her duty at the time, you will also be charged with a felony.

California Penal Code section 245(d)(3)

If you (allegedly) assaulted a police officer or firefighter with a machine gun or assault rifle when you knew or reasonably should have known that he/she was performing his/her duty at the time, you will also be charged with a felony.

California Penal Code section 26100(c) (Shooting from Motor Vehicle/“Drive-By Shooting”): https://codes.findlaw.com/ca/penal-code/pen-sect-26100.html

If you intentionally fired a gun from a vehicle at someone outside of that vehicle, you will be charged with a felony.

California Penal Code section 26100(b) (Permitting Someone to Shoot from Vehicle): https://codes.findlaw.com/ca/penal-code/pen-sect-26100.html

Regardless of whether or not you were (allegedly) inside it at the time, if you were the owner of an automobile who intentionally permitted someone to fire a gun from that vehicle, you can be charged with either a misdemeanor or a felony. Again, this is therefore considered to be a “Wobbler offense” (California Penal Code section 17(b)): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html

California Penal Code section 246 (Shooting at Inhabited House or Occupied Motor Vehicle): https://codes.findlaw.com/ca/penal-code/pen-sect-246.html

If with malice, you intentionally fired a gun at an occupied residence, building, automobile, or airplane, then you will be charged with a felony.

California Penal Code section 247(b) (Shooting at Uninhabited House or Unoccupied Motor Vehicle): https://codes.findlaw.com/ca/penal-code/pen-sect-247.html

If you fire a gun at an automobile, building, or residence when there were no occupants therein, you will only be charged with a misdemeanor.

California Penal Code section 246.3 (Negligent Discharge of a Firearm or BB Device in Grossly Negligent Manner): https://codes.findlaw.com/ca/penal-code/pen-sect-246-3.html

If you illegally and intentionally fired a gun in an extremely reckless manner where death or injury to another was foreseeable, you can be charged with a misdemeanor or a felony (again, this is a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html). See Penal Code section 246(a).

If you illegally and intentionally fired a BB gun, air rifle, or pellet gun in an extremely reckless manner where death or injury to another was foreseeable, you will be charged with a misdemeanor. See Penal Code section 246(b).

See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 970 (“Shooting Firearm or BB Device in Grossly Negligent Manner — Pen. Code § 246.3”): https://www.justia.com/criminal/docs/calcrim/800/970/.

Violent Crimes Convictions – Sentencing Terms — Shooting Crimes

California Penal Code section 245(a)(2): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html

If you’re convicted of a misdemeanor hereunder, you’ll get a minimum of 180 days in jail and a maximum of 12 months (assuming the judge orders a jail term).

But a felony conviction could result in a prison term of 24, 36, or 48 months (assuming that prison is mandated).

California Penal Code section 245(a)(3)

A felony conviction for assault with a machine gun or assault rifle will result in a guaranteed prison term range of four, eight, or twelve years.

California Penal Code section 245(b)

A felony conviction for assault with a semi-automatic weapon will result in a guaranteed prison term range of 3, 6, or 9 years.

California Penal Code section 245(d)(1)

A felony conviction for assault on a police officer or firefighter with a firearm will automatically get you a prison term of 4, 6, or 8 years.

California Penal Code section 245(d)(2)

A felony conviction for assaulting a police officer or firefighter with a semi-automatic weapon will automatically get you a prison term of 5, 7, or 9 years.

California Penal Code section 245(d)(3)

A felony conviction for assaulting a police officer or firefighter with a machine gun or assault rifle will automatically get you a prison term of 6, 9, or 12 years.

California Penal Code section 26100(c): https://codes.findlaw.com/ca/penal-code/pen-sect-26100.html

A felony conviction for a drive-by shooting will automatically result in a prison-term range of 3, 5, or 7 years.

California Penal Code section 26100(b): https://codes.findlaw.com/ca/penal-code/pen-sect-26100.html

A misdemeanor conviction hereunder will get you a maximum county-jail sentence of 12 months. A felony conviction, however, will get you a prison-term range of 16, 24, or 36 months.

California Penal Code section 246 (Shooting at Inhabited House or Occupied Motor Vehicle): https://codes.findlaw.com/ca/penal-code/pen-sect-246.html

A felony conviction hereunder will result in a county jail sentence of six to twelve months, or a prison term of 3, 5, or 7 years.

California Penal Code section 247(b) (Shooting at Uninhabited House or Unoccupied Motor Vehicle): https://codes.findlaw.com/ca/penal-code/pen-sect-247.html

If this conviction is for a misdemeanor, then at most you’ll get is twelve months in the county jail. If it’s a felony, then you’ll be sentenced to sixteen, twenty-four, or thirty-six months in a penitentiary, pursuant to California Penal Code section 1170(h)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html.

California Penal Code section 246.3 (Negligent Discharge of a Firearm or BB Device in Grossly Negligent Manner): https://codes.findlaw.com/ca/penal-code/pen-sect-246-3.html

If you recklessly fired a gun and are convicted of a misdemeanor, at most you’ll get twelve months in jail. But if it’s a felony, then you’ll be sentenced to sixteen, twenty-four, or thirty-six months in a penitentiary, pursuant to California Penal Code section 1170(h)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html. Pen. Code section 246.3(a).

Since recklessly firing a BB gun is always charged as a misdemeanor, at most you’ll get twelve months in jail. Pen. Code section 246.3(b).

Violent Crimes Convictions – Shooting Crimes – Sentencing Enhancements

In addition to enhancements for Strike Offenses (California Penal Code section 667(a)&(b));

California Penal Code section 667.5 (“Violent Felonies”): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=667.5.&lawCode=PEN;

California Penal Code section 1192.7 (“Serious Felonies”): https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html

, which can range from an additional five years all the way up to a minimum of 25-years-to-life in prison, shooting crimes convictions can include the following enhancements:

California Penal Code § 12022.53(c): https://codes.findlaw.com/ca/penal-code/pen-sect-12022-53.html

If you willfully fired a gun while committing any of the following felonies, you’ll get two decades added to your imprisonment:

(1)  Murder (California Penal Code section 187(a);

(2)  Mayhem (California Penal Code section 203): https://codes.findlaw.com/ca/penal-code/pen-sect-203.html

& (California Penal Code section 205): https://codes.findlaw.com/ca/penal-code/pen-sect-205.html

(3)  Kidnapping (California Penal Code section 207): https://codes.findlaw.com/ca/penal-code/pen-sect-207.html

; (California Penal Code section 209): https://codes.findlaw.com/ca/penal-code/pen-sect-209.html

; & (California Penal Code section 209.5): https://codes.findlaw.com/ca/penal-code/pen-sect-209-5.html

(4)  Robbery (California Penal Code section 211): https://codes.findlaw.com/ca/penal-code/pen-sect-211.html;

(5)  Carjacking (California Penal Code section 215): https://codes.findlaw.com/ca/penal-code/pen-sect-215.html;

(6)  Section 220 (Assault with Intent to Commit a Specified Felony (California Penal Code section 220): https://codes.findlaw.com/ca/penal-code/pen-sect-220.html;

(7)  Assault with a Firearm on a Police Officer (California Penal Code section 245(d)): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html;

8)  Rape/Forcible Rape (California Penal Code section 261): https://codes.findlaw.com/ca/penal-code/pen-sect-261.html;

or Spousal/Marital Rape (California Penal Code section 262): https://codes.findlaw.com/ca/penal-code/pen-sect-262.html;

(9) “Gang Rape”/Forcible Rape Act in Concert or Sexual Penetration in Concert (California Penal Code section 264.1): https://codes.findlaw.com/ca/penal-code/pen-sect-264-1.html

(10)  Sodomy (California Penal Code section 286): https://codes.findlaw.com/ca/penal-code/pen-sect-286.html

(11)  Oral Copulation by Force, Fear, or Threats (California Penal Code section 287): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=287

(12)  Lewd Acts with a Minor Child Under 14 (California Penal Code section 288): https://codes.findlaw.com/ca/penal-code/pen-sect-288.html

or Continuous Sexual Abuse of a Child (California Penal Code section 288.5): https://codes.findlaw.com/ca/penal-code/pen-sect-288-5.html

(13)  Forcible Sexual Penetration (California Penal Code section 289): http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=289.&lawCode=PEN

More specifically, if this is your first Violent Felony or Serious Felony, you will not receive a Strike enhancement, but you can receive this twenty-year enhancement under this provision.

California Penal Code § 12022.53(d)

If you fired a gun while committing any of these foregoing felonies, and you severely injured the person (directly or indirectly), then you’ll get an additional imprisonment term of twenty-five-to-life. (This is sometimes known as a “Super Strike”.)

California Penal Code § 12022.55: https://codes.findlaw.com/ca/penal-code/pen-sect-12022-55.html

If you severely injure or kill someone not in your vehicle while doing a drive-by shooting or otherwise while firing a gun therefrom while committing or trying to commit a felony, you’ll get a prison-term enhancement of five, six, or ten years.

Defenses to Violent Crimes Charges — Shooting Crimes

Pursuant to CALCRIM, all of the following are viable defenses to shooting-crimes charges:

1. You didn’t intentionally or maliciously discharge the gun (e.g., the firearm was fired by accident);
2. You did intentionally fire the gun but you weren’t aiming at the purported victim (or any other person), the subject vehicle (or any other vehicle), or the subject residence (or any other residence);
3. You did intentionally fire the gun at the purported victim, but you were acting in reasonable fear (i.e., of imminent harm or death) of either yourself or a third party;
4. You did intentionally shoot at a vehicle or residence, but you did so with the owner’s authorization;
5. You didn’t intentionally or maliciously discharge a gun from a vehicle while it was being driven;
6. You didn’t permit the actual shooter from firing his/her gun from your vehicle;
7. You didn’t possess or own the vehicle that the shooter fired from (e.g., you were just borrowing the car at the time);
8. You didn’t fire the gun with “gross negligence” (i.e., you either did so with a lesser degree of negligence – i.e., “ordinary negligence” — or without any negligence whatsoever – again, for example, purely by accident);
9. The shooting couldn’t reasonably have resulted in injury or death or another (e.g., you were firing at “clay pigeons” or skeet shooting at the time);
10. Yo otherwise didn’t act in disregard for another person’s life;
11. You did not actually believe the gun was loaded at the time.

See CALCRIM number 965 (“Shooting at Inhabited House or Occupied Motor Vehicle — Pen. Code § 246”): https://www.justia.com/criminal/docs/calcrim/800/965/

CALCRIM number 966 (“Shooting at Uninhabited House or Unoccupied Motor Vehicle — Pen. Code § 247(b)”): https://www.justia.com/criminal/docs/calcrim/800/966/

CALCRIM number 968 (“Shooting from Motor Vehicle — Pen. Code § 26100(c) & (d)”): https://www.justia.com/criminal/docs/calcrim/800/968/

CALCRIM number 969 (“Permitting Someone to Shoot from Vehicle — Pen. Code § 26100(b)”): https://www.justia.com/criminal/docs/calcrim/800/969/

CALCRIM number 970 (“Shooting Firearm or BB Device in Grossly Negligent Manner — Pen. Code § 246.3”): https://www.justia.com/criminal/docs/calcrim/800/970/

A Sampling of Violent Crimes Cases — Shooting Crimes Handled by the LADALF

The following are only two of the numerous shooting-crimes cases the Los Angeles Defense Attorney Law Firm (“LADALF”) has fought.

Charge: Deliberate & Premeditated Attempted Murder; Max.: Life; Result: Pled to Assault, 0 Jail

People v. C.J. (DTLA Criminal Courts Bldg., January 2021):

“Charles” was charged with First-Degree Attempted Murder (California Penal Code section 664): https://codes.findlaw.com/ca/penal-code/pen-sect-664.html) & California Penal Code section 187(a): https://codes.findlaw.com/ca/penal-code/pen-sect-187.html, and therefore faced a possible life sentence if convicted. He was also charged with a special allegation of Personal Discharge of a Gun while Committing a Felony (California Penal Code section 12022.53(c)): https://codes.findlaw.com/ca/penal-code/pen-sect-12022-53.html

LADALF’s lead attorney Ninaz Saffari tirelessly counter-attacked the prosecution’s case, which at first seemed like an impossibility since a surveillance video purportedly showed Charles firing a handgun almost point-blank as the purported victim drove by in his vehicle. For example, Ninaz filed multiple motions, including a Motion to Dismiss (California Penal Code section 995): https://codes.findlaw.com/ca/penal-code/pen-sect-995.html

and a Motion to Suppress Evidence (California Penal Code section 1538.5): https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html

Ninaz was even able to convince the judge that the surveillance video was of such poor quality that it was impossible to determine whether Charles even had a gun in his hand, and, conversely, that at the same time, the video did show that there were no muzzle flashes depicted (the incident happened at night).

As a result, Ninaz was eager to try the case before the jury, confident that she would prevail. However, Charles was tired of jail, having been stuck behind bars for ten months, and didn’t feel like taking his chances at trial. Ninaz therefore convinced the Deputy DA to offer an outstanding deal, which Charles agreed to take.

Result: Charles pled no contest to Assault with a Firearm (California Penal Code section 245(a)(2)): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html

with an immediate release from custody and 24 months of probation only.

Charge: Assault with A Deadly Weapon; Max: Almost 30 Years); Result: Acquitted by Jury

People v. G.S. (DTLA Criminal Courts Bldg., April 2014):

“George” was prosecuted with several counts of Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html

for allegedly shooting at the purported victim with a semi-automatic firearm. In addition, because of George’s criminal record, he was now being charged with a Strike Offense (California Penal Code section 667(a)&(b)): https://codes.findlaw.com/ca/penal-code/pen-sect-667.html

As a result, he was looking at almost three decades in prison if convicted.

However, George was adamant that he was innocent so Ninaz eagerly forced the prosecution to try him before a jury. During cross-examination, she destroyed the prosecution’s witnesses by proving that they had repeatedly changed their stories to authorities throughout the investigation and prosecution. She also put on eyewitnesses who testified about George’s innocence. Finally, her forensic expert proved to the jury that his fingerprints were never found on the firearm.

Result: Acquittal of all counts.