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If a person is convicted of 245(b) and the gbi enhancement is found not true

Rancho Santa Margarita, CA |

Can there be an argument that's its not a serious felony?

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Attorney answers 4


245(b) is assault with a semiautomatic firearm. If it is plead and proven that the defendant personally used the firearm, then it is a serious felony under PC 1192.7(c)(8) and (23) irrespective of whether the GBI allegation is found true.


No, except perhaps in non-legal forums. Assault is a "mental injury." It is putting someone in apprehension of imminent bodily harm. The fact that no great bodily injury occurred is collateral, or irrelevant, legally, to assault, the act of putting someone in apprehension.

In fact, even arguing that the person was not found to have suffered great bodily injury suggests that the semiautomatic weapon was fired or discharged, but the bullets missed. This means the individual did more than just brandish the weapon to put some one in apprehension, he attempted a battery, but missed.


I know you're reposting in different ways, hoping for the answer you want. Unfortunately, the charge itself is a serious felony based on the use of a firearm, even if GBI is not found to be true.

The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.


To state it another way, the person now has a felony strike conviction. If they commit another felony they are looking at having that time doubled plus it will be served at 80%, unless the new felony is a violent felony, then it is served at 85%.