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Back Assault with a Firearm by Darren Kavinoky Assault with a Firearm Assault with a firearm is governed by California Penal Code Section 245. Assault with a firearm is an aggravated assault in which the defendant, with a firearm, threatens a person with death or serious bodily injury. An aggravated assault is an assault accompanied by circumstances that make it more severe, namely the use of a firearm, or the intent to commit another crime, or the intent to cause serious bodily harm. The punishment for the use of a firearm in an assault varies, depending on whether the crime is classified as a misdemeanor, felony, or wobbler. A misdemeanor is punishable by imprisonment in a county jail for up to one year. A felony is punishable by imprisonment in a state prison for over one year. Where charged as a felony, the conviction for assault with a firearm acts as a Strike, under California¡¦s Three Strikes and You¡¦re Out campaign, where 3 violent felonies will bring a sentence of 25 years to life in state prison. Wobblers are those crimes which may be determined to be either a felony or a misdemeanor. At times, a prior conviction may turn an offense that can be charged or punished as a misdemeanor or a felony into a straight felony. However, the Three Strikes laws do not have the effect of turning wobblers into straight felonies. Generally, assault with a firearm will be punished by imprisonment in the state prison for 2, 3, or 4 years, or in a county jail six months and one year, or by both a fine of up to $10,000 and imprisonment. However, this punishment formula varies, dependent on who the victim is, what type of firearm was used, and where the crime occurred: „X Any person who commits an assault upon another person with a machinegun, assault weapon, or a .50 BMG rifle, will be punished by imprisonment in the state prison for 4, 8, or 12 years. „X Any person who commits an assault upon another person with a semiautomatic firearm will be punished by imprisonment in the state prison for 3, 6, or 9 years. „X Any person who commits an assault with a deadly weapon upon an operator, driver, or passenger on a bus, taxi, or metrolink train, etc., will be punished by imprisonment in the state prison for 3, 4, or 5 years. „X Any person who commits an assault with a deadly weapon upon a custodial officer engaged in the performance of his duties, will be punished by imprisonment in the state prison for 3, 4, or 5 years. „X Any person who commits an assault with a firearm upon a school employee, and who knows or reasonably should know that the victim is a school employee engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years, or in a county jail for not less than six months and not exceeding one year (wobbler). Additional penalties In addition to imprisonment, there are additional penalties that may be meted out in an assault with a firearm conviction. When a person is convicted of assault with a firearm, and the firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of . In a conviction for assault with a deadly weapon, where the crime took place from a vehicle, or towards an occupied vehicle, the occupants of which were assaulted by the use of a firearm, the vehicle will be ordered to be surrendered to the sheriff of the county or the chiefl of police of the city in which the violation occurred, in order for the vehicle to be sold. Defenses The best defense for an assault would be the use of force in defense of oneself or on behalf of another. In preparing the criminal defense, it¡¦s important to carefully analyze how contact with the other person came to be. If a person was defending himself or another person, then self-defense may be a valid defense. For example, the evidence most favorable to a defendant could be indicated by being drawn into a fight when the victim kicked the defendant and struck him on the jaw. If there was no evidence suggesting that either the victim or his companions were armed, then using physical force would be reasonable to counteract opposing physical force. California jury instructions (CALJIC) No. 5.31 places a limitation on the amount of retaliatory force which may be used against an assault with fists. Such an assault does not justify the use of a deadly weapon in self-defense. However, CALJIC No. 5.30 instructs that a person being subjected to an assault may use all force he believes reasonably necessary to prevent an injury which appears imminent. CALJIC No. 5.32 instructs that it is lawful for a person who reasonably believes that another person is about to be physically attacked to defend that person with all the force and means reasonably necessary to prevent the injury which appears to be imminent. The standard used in the above cited jury instructions calls for a standard of a ¡§reasonable person.¡¨ This is an artificial construct of what a reasonable person would do under the same or similar circumstances. Therefore, what the person involved found reasonable is not the reasonable standard relied upon, but rather what an imaginary ¡§reasonable person¡¨ would do. Assault with a firearm is a general intent crime. This means that it is not necessary that the defendant intend to produce the exact consequences of the crime, rather it is enough that they intended to cause their own physical action, the assault itself. However, general intent crimes such as assault may be negated by reason of an honest and reasonable mistake of fact. If the jury finds this to be true, they must find the defendant not guilty. The prosecutions burden of proof is to prove that the defendant is guilty ¡§beyond a reasonable doubt.¡¨ This is a high standard. If the jury finds that there is reasonable doubt as to a defendant¡¦s guilt, they must find the defendant not guilty. Using physical force upon another person is not unlawful if done in a lawful self-defense. Therefore, so long as the jury hears the evidence supporting self-defense, and they believe it, even only so much as to create reasonable doubt, the jury must make a finding of not guilty. Author's Biography: If you stand accused of a crime in or around Los Angeles, Ventura, Orange, Riverside, San Bernardino, San Diego, or San Francisco Counties in California, you can entrust criminal defense attorney Darren Kavinoky to provide the expert legal advice needed to solve your problem.
The Kavinoky Law Firm is delighted to announce that criminal defense lawyer Darren T. Kavinoky has been named a Super Lawyer Rising Star in the September, 2005 issue of Los Angeles Magazine. Additionally, Darren was featured in NEWSWEEK.
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