Brandishing a Firearm or Deadly Weapon
PC Section 417 Crimes
The law on the 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. For example, brandishing a deadly weapon is charged as PC 417(a)(1), whereas brandishing a firearm is charged as PC 417(a)(2)(B).
The particular brandishing charge that is filed against the defendant depends on the facts of the case. There is a list of the various brandishing charges and associated penalties below.
PC 417 Law (Abbr.)
The term Brandish defined: 'to draw or exhibit, a deadly weapon, in the presence of another person, in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses a deadly weapon, in a fight or quarrel.' (PC 417)
The term 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." This includes a knife, a baseball bat, tools, and more.
The term Firearm 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, zip guns, exploding darts, and more.
As stated, there are several different brandishing crimes that may be charged against the defendant depending on the set of facts particular to the case. Each brandishing crime will require slightly different or additional evidence in order for the district attorney to prove the crime.
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 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), and
- 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, park, restaurant, etc., either in an incorporated, or unincorporated city (PC 417(f).
The maximum penalties for brandishing a firearm or deadly weapon depends on the exact criminal charge that is filed against the defendant.
- 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 graffiti [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].
Probation Sentence: A probation sentence is period of supervision in lieu of jail or prison. Probation sentences carry terms of probation that must be followed in order to avoid actual jail or prison. Probation sentences are available in PC 417 cases but they are not guaranteed. Whether or not a probation sentence is available depends largely on the facts of the case and the defendant's criminal history.
Note: For felony brandishing crimes a probation sentence, a split prison sentence, or a suspended prison sentence (aka joint suspended sentence) is available in some case. For more information on split prison sentences or suspended prison sentences please visit PC 1170(h) sentencing.
Crime of Moral Turpitude: A crime of moral turpitude is a crime that is considered morally wrong. Crimes of moral turpitude carry special negative consequences for licensed professionals and immigrants. Licensed professional may be disciplined by their licensing agency and immigrants may be deported or denied reentry into the United States upon any conviction for a crime of moral turpitude. Brandishing crimes are not generally considered crimes of moral turpitude but felony brandishing crimes may be deportable violations in any event. to learn more about criminal convictions and their impact on licensed professional or immigrants please see licensed professional or immigrants.
Three Strikes Sentencing: The crimes of brandishing a loaded firearm in a fight or in a daycare (PC 417(b)), and brandishing a firearm at police officers (PC 417(c)) are considered strikeable offenses under California's Three Strikes Law.
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, restraining orders, and more.
Defenses to PC 417 Crimes:
Common defenses to a charge of brandishing a deadly weapon or firearm include: insufficient evidence, statute of limitations, defense of others, intoxication, alibi, defense of others, coerced confessions, illegal search and seizure, and more.
Note: It is not a defense to a PC 417 brandishing charge to argue that a firearm was not loaded.
For more information on the common defenses to PC 417 crimes, please visit defenses.
If you or a loved one is charged with brandishing a firearm, or brandishing a deadly weapon, under California penal code section 417, contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys are experienced and successful and we have defended hundreds of felony and misdemeanor crimes, including brandishing crimes charged under PC 417. Call today!
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