SAN JOSE -- Embattled 49ers linebacker Aldon Smith was charged Wednesday with three felony counts of possessing illegal assault weapons and two counts of misdemeanor drunken driving for separate incidents that all occurred in the past 14 months.

If Smith were convicted of the gun charges, he would face a range of possible punishments, from probation up to four years and four months in prison. Deputies discovered the guns shortly after a June 2012 party at Smith's San Jose home, which ended with the athlete being stabbed and two partygoers wounded by gunfire from gang members who crashed the get-together.

Last month, Smith was arrested on suspicion of drunken driving after he hit a tree. The two misdemeanor DUI charges include one count alleging he had a blood-alcohol level of 0.15 -- nearly double the legal limit.

The 24-year-old, who is on leave from the 49ers and currently enrolled in a substance abuse rehabilitation program, is expected to surrender later this month.

Asked why the gun charges were filed more than a year after the weapons were found, prosecutors explained Wednesday that the sheriff's department first presented the case to them in July 2013.


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The district attorney's office then conducted its own investigation, concluding that charges were warranted -- partly because they discovered that Smith purchased the weapons in Arizona in 2011 while he was a California resident. It is illegal for California residents to purchase assault weapons, even in another state where they are legal.

However, prosecutors were aware of the guns more than a year ago. Deputy District Attorney Brian Buckelew, who took over the case this summer, said the office was initially focused on investigating the gang members who wounded Smith and the party guests.

"People's attention, rightfully so, was on the underlying more serious crimes," Buckelew said. "There certainly was no potential prejudice to the case to wait."

Smith also faces possible time behind bars for the drunk-driving incident. The typical sentence for a first-time conviction is six days on a weekend work crew. But in Smith's case, prosecutors said there are three aggravating factors that could put him in jail for up to six months:

  • He was involved in a collision (with a tree).

  • His blood-alcohol level was nearly twice the legal limit.

  • He had a previous arrest in Florida for drunken driving.

    However, prosecutors noted that the Florida violation was reduced to reckless driving, so it is not chargeable as a prior offense, though it might end up having a strong bearing on sentencing.

    In a written statement, District Attorney Jeff Rosen underscored the gravity of the gun charges, saying the fact that the weapons can be used to kill and injure people outweighs their use as sports or recreational firearms.

    The danger became all too real during the party, a prosecutor with the gang enforcement unit said, because someone went into Smith's bedroom, removed one of the assault weapons and carried it around the house.

    "The irresponsible storage of the weapons led to danger to everyone at the party," Buckelew said. "They were not secured at a party full of gang members, which seems like a bad idea."

    The NFL declined to comment on Smith's charges, according to spokesman Greg Aiello. The 49ers, however, issued a short statement: ''We recognize the serious nature of this situation, as does Aldon, and will continue to monitor it closely. As this is an ongoing legal matter, we will have no further comment."

    Coach Jim Harbaugh echoed the team's statement, adding: "We've been aware of the incident and the serious nature of it. We're all accountable for our actions, good and bad. There's due process that will take place."

    The weapons include an Armalite AR10-T .308 caliber rifle, a Bushmaster ACR rifle chambered for 5.56mm NATO and a Bushmaster Carbon-15 .223 caliber rifle.

    Sheriff's investigators also found some large-capacity magazines strewed around the floor of his bedroom.

    Rosen's office also charged Smith with an infraction for having a false license plate. Smith was driving a black Chevrolet truck when he crashed into a tree on Sept. 20, but the license plate on the vehicle was for a Dodge Challenger that Smith also owns. According to documents, the license plate registration on the truck expired nearly a year ago.

    Smith also was booked but not charged for possession of prescription pills without a prescription. Two envelopes were found in the vehicle, one that contained a single pill of Skelaxin, a muscle relaxant, and the second containing one pill of Indomethacin, an anti-inflammatory drug.

    A San Jose police officer also noticed a pipe on the center console and the smell of marijuana.

    Smith also faces two civil suits from men allegedly shot at the party.

    Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport. Follow Cam Inman at Twitter.com/CamInman.

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