Brandishing a Firearm or Deadly Weapon
California Penal Code Section 417
The law on the California crime of brandishing a firearm or deadly weapon is found at California Penal Code section 417.
There are several variations of brandishing crimes that may be charged against the defendant. The particular brandishing charge that is filed against the defendant depends on the facts of the case (See below for a list of the various brandishing charges and associated penalties).
Brandish defined: 'Every person who, except in self-defense, in the presene of any other person, draws or exhibits any deadly weapon...in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses a deadly weapon...in a fight or quarrel, is guilty of a crime.' [PC 417]
Weapon Defined: "any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
Firearms Defined: "any device designed to be used a weapon, from which a projectile is discharged or expelled through a barrel by force of an explosion or other form of combustion." A firearm includes: shotguns, handguns, rifles, pistols, and more.
The maximum penalties for brandishing a firearm or deadly weapon depend on the exact criminal charge that is filed against the defendant (See below for associated penalties with particular brandishing crimes).
- PC 417(a)(1) brandishing a deadly weapon in a fight [Misdemeanor up to 180 days in jail];
- PC 417(a)(1) brandishing a deadly weapon to a person cleaning graffitti [Misdemeanor up to 180 days in jail];
- PC 417(a)(2)(A) brandishing a concealed firearm in public place [Misdemeanor up to a 1 year in jail];
- PC 417(a)(2)(B) brandishing firearm [Misdemeanor up to 180 days in jail];
- PC 417(b) brandishing loaded firearm in a daycare [Felony up to 3 years in prison];
- PC 417(c) brandishing firearm at police [Misdemeanor up to 1 year in county jail or Felony up to 3 years in prison];
- PC 417.3 brandishing a firearm at a person in a motor vehicle [Felony up to 3 years in state prison];
- PC 417.4 brandishing imitation firearm in a threatening manner [Misdemeanor up to 180 days in jail];
- PC 417.6 brandishing deadly weapon causing serious bodily injury [Misdemeanor up to 1 year in county jail or Felony up to 3 years in state prison];
- PC 417.8 brandishing a weapon at officer while resisting arrest [Felony up to 4 years in prison].
In addition to any possible jail or prison time associated with a conviction for brandishing a firearm or deadly weapon, the defendant may also face very restrictive probation or parole terms, loss of the right to use or possess a firearm, monetary fines, restitution, loss of professional license or occupational license, immigration consequences, adverse family law consequences, and more.
As noted, there are several different brandishing crimes that may be charged against the defendant depending on the set of facts partiucular to the case. Each brandishing crime will require slightly different or additional evidence i order to prove guilty by the district attorney.
Probably the most common brandishing criminal charge is found at California Penal Code section 417(a)(2)(A), which is brandishing a concealed firearm in a public place.
To be found guilty of the particular crime of brandishing a concealed firearm in a public place, the district attorney must prove:
- the defendant drew or exhibited a firearm in the presence of another person, and
- when the defendant drew or exhibited the firearm the defendant did so in a rude, angry, or threatening way, and
- the defendant did not act in self-defense or defense of another person, and
- at the time of drawing or exhibiting a firearm, the defendant was in a public place (public place defined below).
- the defendant was not involved in law enforcement.
A public place is defined as a place open to the public, such as a street, parking lot, etc., either in an incoroporated or unincorporated city [See PC 417(f)].
Defenses to Penal Code 417 include:
- insufficient evidence,
- defense of other people,
- statute of limitations,
- intoxication, and more.
Note: It is not a defense to a PC 417 brandishing charge to argue that a firearm was not loaded.
If you or a loved one has been charged with brandishing a firearm or deadly weapon under California Penal Code section 417, contact our criminal defense attorneys today.
Our criminal defense attorneys are 100% devoted to criminal defense and consultations are provided at no cost to the accused.
To learn more about brandishing a firearm or deadly weapon charges, or California Penal Code 417, contact the criminal defense attorneys at Dorado & Dorado today!
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