Newport Beach Assaults Related to Firearms
If you are convicted of a misdemeanor assault in the state of California, the consequence will be a 10 year long firearm ban. That means that you cannot possess a firearm for 10 years. If you possess a firearm, you can be prosecuted under Penal Code section 29805. This would include owning, purchasing, receiving, possessing, or having under your custody or control of a firearm within 10 years of a conviction for misdemeanor assault. In addition to being charged with assault as well as violating Penal Code section 29805, you would be facing penalties that include jail time and fines. If you were charged with a misdemeanor you are facing up to a year in jail on a $2000 fine or you could face 16 months, two years, or three years in a state prison and fines if charged with a felony.
At the time that a person enters their guilty plea as to an assault, be it a misdemeanor or felony, the court will advise them that they cannot have a firearm for 10 years. That term is not negotiable. Sometimes individuals think that once their probation term is up they can resume having a firearm but that is not the case. We advise our clients of this term because they need to know that having a firearm for the next 10 years could result in a new crime. The court will ask individuals who are convicted of this crime to present information to the court about any firearms they own. If they own any firearms they will be required to turn those over to someone else, dispose of them properly, or relinquish them to law enforcement. If that individual has no firearms they will be able to indicate that and the court will set a hearing to make sure that they are in compliance with the law.
It can be a very difficult scenario when an individual has previously been convicted of assault but later is arrested for a new assault including the use of a firearm. In that circumstance they would be in violation both of the ban against them possessing firearms for 10 years but also face new charges as to the new assault. The reason that the law bans an individual from possessing a firearm for 10 years is for the protection of the public. A conviction for an assault indicates that person has a propensity toward violence and the legislature has determined that that individual should not be entrusted with the possession of a firearm that could be used against another person to cause harm. The use of a firearm in a subsequent offense underscores the need for that provision to be in place and should you be charged with a new crime using a firearm in violation of this statute, you would be exposed to additional penalties and punishments for violating that law.
If you are accused of an assault with a firearm and you are prohibited from having one, we will explore all of the defenses to this charge. Wonder fence might be that you in fact did not possess the firearm. You may also claim you did not use it in the Commission of a new crime. Because the prosecutor would need to prove each and every element of the crimes charged. They would need to have facts to support the allegation of possession and the allegation that you used the weapon in the Commission of the new assault. We find that many times some of the facts are true and some of them are false. It is the job of an experienced Newport Beach criminal defense attorney 2 parse out the facts and evaluate whether the prosecutor can prove each and every element of each and every crime beyond a reasonable doubt.
There are additional defenses that we can raise on your behalf as well. You may not have acted willfully. Imagine a scenario in which you are accused of a crime but your actions were done under duress and you had no choice but to commit the action. That would be defensible. In another circumstance you may not have had the ability to cause any harm to another and for that reason that may provide you a defense. One might also consider raising the defense of self defense or the defense of others. You would have need to have had a reasonable bold belief that you were the person you were protecting was likely to be physically harmed. Say for example that you were in someone else’ home minding your own business and someone broke in and threatened to kill you and the homeowner. Let's say also that bad homeowner had their antique rifle mounted on the wall. You know that you are not allowed to possess that weapon nor would the homeowner want you to because it is an antique. It is purely there for show. But when the home invasion occurs, you grab the rifle off of the wall and use it to defend yourself and the homeowner. That would be an interesting case but also a defensible case because you were defending yourself and another person even though you were not allowed under the law to possess that weapon or use it. You would also need to show that the use of force was proportionate to the threat that you encountered.
If you are accused of this crime, contact an experienced criminal defense attorney like the attorneys at Johnson criminal Law Group to help you today.