California Law as to "Brandishing a Weapon or Firearm"
Penal Code 417 PC

California Penal Code 417 PC prohibits “drawing, exhibiting, or using a firearm or deadly weapon”.1 This offense is commonly referred to as "brandishing" a weapon.

If you “brandish” a weapon or firearm in a rude, angry, or threatening manner, prosecutors could charge you with this offense.

This is just one of California gun laws that regulate how and when people may lawfully use their firearms.  A conviction under this section subjects you to a jail or prison sentence.

The good news is that there are a variety of California legal defenses to the charge of brandishing a weapon…defenses that we know how to present successfully on your behalf. As former prosecutors and cops, we have the insider knowledge essential to defending against your firearms/weapons charges.

In this article, our California criminal defense attorneys will address the following:

(Click on a title to proceed directly to that section)

1. The Legal Definition of Brandishing a Weapon
2. What are the Defenses to Brandishing a Weapon?
3. Penalties, Punishment, and Sentencing for Penal Code 417 PC
4. Comparing "Brandishing a Weapon" and "Assault with a Deadly Weapon"

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Firearm Offenses, Penal Code 245 PC Assault with a Deadly Weapon, Penal Code 422 Criminal Threats, California Self-Defense Laws, and California Legal Defenses.

1. The Legal Definition of Brandishing a Weapon

In order to prove that you brandished a weapon under Penal Code 417 PC, the prosecutor must prove the following facts (otherwise known as “elements” of the crime):

  1. that you drew or exhibited a deadly weapon or firearm in the presence of another person,
  2. that either

    1. you did so in a rude, angry, or threatening manner, or
    2. you did so unlawfully in a fight or quarrel, and

  3. that you were not acting in self-defense or in the defense of another person at the time.2

Let's take a closer look at some of these terms to gain a better understanding of their meanings.

Deadly weapon

A deadly weapon is “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”.3 "Great bodily injury" is a significant or substantial physical injury.4

Deadly weapons do not include body parts, as deadly weapons are necessarily extrinsic to the human body.5

Examples: Examples of everyday “innocent” objects that qualify as deadly weapons when used to harm another person include (but are not limited to):

  • a pillow (which can be used to suffocate a person),
  • a razor blade, and
  • a dog (when trained to attack people).6

Firearm

Under California's gun laws, “‘firearm' means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”7 If the object meets this definition, it doesn't matter whether it was loaded or unloaded at the time of the offense.8

Examples:  Examples of “firearms”…which are generically referred to as guns…include (but are not limited to):
  • pistols,
  • revolvers,
  • rifles, and
  • shotguns.9
Excluded from the definition under Penal Code 417 PC are:
  • pellet guns, and
  • BB guns.10

In the presence of another person

To convict you of brandishing a weapon under California Penal Code 417 PC, the prosecutor must prove that you drew or exhibited the weapon in the presence of another person.  This means that as long as another person was present when you exhibited your weapon, the prosecution has satisfied this element.

There is no requirement that

  • you pointed the weapon at the alleged victim,11
  • you “fired” the gun,12 or
  • the alleged victim even saw the weapon.13

Rude, angry, or threatening manner

"Rude, angry, or threatening manner" doesn't require much explanation.  The important fact to note here is that prosecutors can convict you of this offense even if you don't actually intend to cause any harm.14

Penal Code 417 PC seeks to prevent potentially volatile confrontations.15 Brandishing a firearm in a rude, angry, or threatening manner gives rise to the exact type of situation the law hopes to discourage, regardless of whether you actually intend to cause harm.

And on that note, even if you only intended to scare or threaten the alleged victim, doing so also subjects you to prosecution under Penal Code 422 PC, California's criminal threats law.16 "Criminal threats" prohibits threatening harm to another person with the apparent ability to carry out that threat.  Threatening someone while exhibiting or drawing a weapon generally falls into this category.

2. What are the Defenses to Brandishing a Weapon?

There are a variety of California legal defenses to a Penal Code 417 PC charge that a good California criminal defense lawyer could present on your behalf.  Some of these include (but are not limited to):

Self-defense / defense of others

The “elements” of Penal Code 417 PC specifically state that you are guilty of the offense if you weren't acting in self-defense at the time you drew or exhibited your weapon.  This means that if you were lawfully defending yourself or defending another person, California's self-defense laws will excuse your otherwise criminal act.

You lawfully act in self-defense or in defense of others when you

  1. reasonably believe that you or another person is about to suffer imminent harm, and
  2. you fight back with no more force than is reasonably necessary to defend against that danger.17

You didn't display the weapon in a rude, angry, or threatening manner

Simply drawing or exhibiting a weapon isn't enough to justify a conviction for Penal Code 417 PC.  In order for prosecutors to convict you of brandishing a weapon or firearm, you must do so in a rude, angry, or threatening manner.

This means that if you are merely joking, “showing off”, or even educating another person about your weapon, you aren't guilty of brandishing a weapon.

False allegations / wrongful arrest

Since Penal Code 417 PC doesn't require that you use your weapon or actually cause any harm, it would be easy for an innocent person to get accused of this offense.

As Oakland criminal defense attorney Jim Hammer explains,18 "Anger, jealously, revenge...these are all common motives that lead people to make false criminal allegations against innocent people.  A vengeful person could easily accuse his/her partner of drawing a firearm with little to no evidence."

3. Penalties, Punishment, and Sentencing for Penal Code 417 PC

In addition to the basic charge of exhibiting or drawing a weapon in a rude, angry or threatening manner or during a fight, there are several other ways that you can commit this crime.19 And each one carries a different sentence.

While some of the violations are straight misdemeanors, some are wobblers.  A “wobbler” is an offense that the prosecutor can file as a misdemeanor or a felony, depending on

  1. the circumstances of the case, and
  2. your criminal history.

Let's first take a look at the misdemeanor sections and penalties, and then we'll take a look at the wobbler violations and their penalties.

Misdemeanor sentencing for brandishing a weapon

  • If you are convicted of drawing a deadly weapon in a rude, angry, or threatening manner or during a fight, you face a minimum 30-day county jail sentence.20
  • you are convicted of exhibiting a firearm under the same circumstances, you face a three to six month county jail sentence.21
  • you are convicted of brandishing a firearm in a public place and the firearm is a pistol, revolver, or other firearm that you are capable of concealing on your body, you face

    1. a minimum three month to a maximum one-year jail sentence, and/or
    2. a maximum $1,000 fine.22

  • You face the same jail sentence if the alleged victim is cleaning up vandalism or graffiti at the time of the offense.23

Wobbler penalties

  • If you are convicted of drawing or exhibiting a firearm (whether loaded or not) in a rude, angry, or threatening manner or during a fight upon the grounds of a child day-care center while that center is open for use, you face either

    1. a misdemeanor, punishable by a minimum three month to a maximum one-year jail sentence, or
    2. a felony, punishable by 16 months, or two or three years in the California State Prison.24

      **If you are convicted of a California firearm offense on school grounds, you face punishment under Penal Code 626.9, California's Gun-Free School Zone Act.

  • If you are convicted of drawing or exhibiting a firearm (whether loaded or not) in a rude, angry, or threatening manner in the immediate presence of a peace officer who is engaged in the performance of his/her duties and you know or reasonably should know this, you face either

    1. a misdemeanor, punishable by a minimum nine month to a maximum one-year jail sentence, or
    2. a felony, punishable by 16 months, or two or three years in the state prison.25

A conviction for any California firearm offense may result in the loss of the weapon or firearm.26

4. Comparing "Brandishing a Weapon" and "Assault with a Deadly Weapon"

Penal Code 417 PC is oftentimes charged in connection with Penal Code 245(a)(1) PC, California's “assault with a deadly weapon” law.

Penal Code 245(a)(1) PC defines assault with a deadly weapon (more commonly referred to as ADW) as an assault that is committed with a deadly weapon or other means of force likely to cause great bodily injury to another person.27 An “assault” is “an unlawful attempt, coupled with a present ability, to commit a violent injury on another person”.28

Similarities between “brandishing a weapon” and “ADW”

There are quite a few similarities between Penal Code 417 PC and 245 PC.  Some factors that are common to both offenses include (but are not limited to):

  • there is no requirement that you actually use or discharge your weapon,
  • there is no requirement that the alleged victim see the weapon,
  • there is no requirement that you actually harm the alleged victim, and
  • committing the offense against a police officer who is engaged in the performance of his/her duties subjects you to increased penalties.

Differences between Penal Code 417 PC and Penal Code 245 PC

Just like there are similarities between the two offenses, there are differences as well.  Some of these include (but again, are not limited to):

  • ADW requires that you intend to harm the alleged victim; brandishing a weapon has no such requirement,
  • ADW involves firearms, deadly weapons or “other means of force likely to produce great bodily injury” -- brandishing a weapon doesn't include “other means of force”, which means that,
  • you can't be convicted of California Penal Code 417 PC merely for using your body as a weapon like you can under Penal Code 245.29
Examples:  Tom sneaks up behind Mary and threatens to shoot her with a gun that is concealed in his jacket.  This conduct qualifies as assault with a deadly weapon.  But because Tom didn't draw or exhibit the gun, he isn't guilty of brandishing a weapon.
Now let's assume that Tom directly points his unloaded gun at Mary and threatens to shoot her.  Because he “brandished” his firearm in a threatening manner, he is guilty of Penal Code 417 PC.  However, because he doesn't actually have the present ability to shoot her…since the gun isn't loaded…he is not guilty of ADW.
Finally, let's say that Tom draws his loaded gun and threatens to shoot Mary.  Given these facts, Tom is guilty of both brandishing a weapon and assault with a deadly weapon.  This point illustrates why we often see the two crimes charged together in the same case.
Call us for help…
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If you or loved one is charged with Penal Code 417 PC brandishing a weapon and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's firearm laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.30

Legal References:

1 California Penal Code 417 -- Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers.  (“(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months. (b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year. (c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer's uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison. (d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year. (e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2. (f) As used in this section, “public place” means any of the following: (1) A public place in an incorporated city. (2) A public street in an incorporated city. (3) A public street in an unincorporated area.”)

2California Jury Instructions – Criminal.  CALJIC 16.290.  (“In order to prove this crime, each of the following elements must be proved: [1] A person, in the presence of another person, drew or exhibited a [deadly weapon, other than a firearm] [firearm, whether loaded or unloaded]; [and] [2] That person did so in a rude, angry, or threatening manner] [or] [2] That person, in any manner, unlawfully used the [deadly weapon] [firearm] in a fight or quarrel][.] [; and [3] The person was not acting in lawful self-defense.]”)

See also People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 19.  (“Accordingly, in order to reconcile [California Penal Code] section 417 (prohibition of using a firearm in a threatening manner [aka brandishing a weapon]), and sections 692, 693, and 694 and Civil Code section 50 (permitting the use of deadly force in defense of others), we rely, by analogy, on People v. King, supra, 22 Cal.3d 12, 148 Cal.Rptr. 409, 582 P.2d 1000, which would permit use (or threat of use) of firearms in defense of others as a defense to section 417. As in that case, we find that the Legislature's failure to include the defense does not bar its application.”)

3People v. Aguilar (1997) 16 Cal.4th 1023, 1029.  (“Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. ( People v. Graham (1969) 71 Cal.2d 303, 327, 78 Cal.Rptr. 217, 455 P.2d 153, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017.) Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.”)

See also Judicial Council Of California Criminal Jury Instruction -- CALCRIM 983.

4 See same.

5See People v. Aguilar at 1034, endnote 3, above.  (…“we conclude a “deadly weapon” within the meaning of [California Penal Code] section 245 must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons; to the extent the prosecutor's argument suggested the contrary, it was erroneous.”)  While this excerpt specifically refers to Penal Code 245 PC, California's assault with a deadly weapon law, this case is cited as the authority on the definition of deadly weapons in the CALCRIM jury instructions for Penal Code 417 PC, California's brandishing a weapon law.  It therefore stands to reason that hands and feet do not constitute deadly weapons for a Penal Code 417 PC offense either.

6People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 5 (“We now return to our own statutory definition of “deadly weapon or instrument.” It must be an instrument used in such a manner that its use could produce and is likely to produce death or great bodily injury. ( In re Jose R., supra, 137 Cal.App.3d 269, 275-276, 186 Cal.Rptr. 898.) We look to the “nature of the weapon, the manner of its use, and all other factors that are relevant to this issue.” ( Ibid.)  In a given situation, a dog may well come within the definition. As the cases referred to above indicate, a dog may be trained to attack a human. If an inanimate object such as a pillow, a straight pin imbedded in an apple, and a razor blade may be found by the trier of fact to be a “deadly weapon or instrument” within the meaning of section 245, certainly a dog which is trained to viciously attack a human or which has a known propensity to do so when ordered by its handler should also be considered.”)

7California Penal Code 12001 PC -- Definitions.

8People v. Norton (1978) 80 Cal.App.3d Supp. 14, 25.  (“We believe that the following definition of the term “firearm” comports with legislative intent in a prosecution under Penal Code section 417, subdivision (a): “The word, ‘firearm,' includes a pistol, revolver or rifle, or any other device designed to be used as a weapon from which a projectile may be expelled by the force of any explosion or other form of combustion. An object which meets this definition is a firearm even if it is not loaded.””)

9See same.

10In re Jose A. (1992) 5 Cal.App.4th 697.  (“Here, [California Penal Code] section 12001, subdivision (g), specifically includes pellet guns in its definition of firearm for the purpose of prohibiting their sale to minors, while pellet gun is not included in sections 245, subdivision (a)(2) or [California Penal Code] 417, subdivision (a)(2). The Legislature presumably was aware of those sections when it amended section 12001 in 1991. The Legislature's failure to define firearm in titles 8 and 11, while expressly including pellet gun in its definition of firearm in section 12001 as applied to section 12551, raises a strong inference the word “firearm” was intended to be used for purposes of gun control and minors in a sense different from its common meaning. (See People v. Drake (1977) 19 Cal.3d 749, 755 [139 Cal.Rptr. 720, 566 P.2d 622].) We conclude the Legislature intended to restrict the meaning of firearm in sections 245, subdivision (a)(2) and 417, subdivision (a)(2) [California's brandishing a weapon law] to exclude such instruments as pellet or BB guns.”)

11People v. Sanders (1995) 11 Cal.4th 475, 542.  (“The crime of brandishing consists of drawing or exhibiting, in the presence of another person, any firearm, whether loaded or unloaded, in a rude, angry or threatening manner. (Pen.Code, § 417, subd. (a) [California's “brandishing a weapon” law]). The weapon need not have been pointed directly at a victim. ( People v. Mercer (1980) 113 Cal.App.3d 803, 806, 169 Cal.Rptr. 897.) The elements of the crime include drawing or exhibiting a firearm, loaded or unloaded, in a “rude, angry, or threatening manner.” (Pen.Code, § 417, subd. (a)(1).) Dr. Cray's account of the incident, in which he testified that defendant wielded a rifle in a threatening manner, constituted substantial evidence on the elements of a brandishing offense.”)

12People v. McKinzie (1986) 179 Cal.App.3d 789, 793.  (“We have been directed to no decided cases in which the elements of a violation of Penal Code section 417, subdivision (a)(2) were at issue. Defendant cites us one case, People v. Chavira (1970) 3 Cal.App.3d 988, 83 Cal.Rptr. 851, for the following language: “[Defendant committed a violation of [Penal Code] § 417 [[California's “brandishing a weapon” law]], since the record clearly shows that the weapon was seen by the victims, was pointed at them, and fired; every element of a violation of [California Penal Code] section 417 appears.” ( Id., at p. 992, 83 Cal.Rptr. 851.) Defendant would have us believe that the recitation by the court of the fact that the victim saw the weapon was sufficient to elevate that fact to “element” status. However, the argument clearly fails. An examination of the statute and the applicable jury instruction (CALJIC No. 16.290) discloses that neither pointing the gun at the victim, nor firing it, also mentioned by the Chavira court, are elements of the crime.

13See same at 794.  (“We have found other cases which, although failing to consciously enunciate all elements of a Penal Code section 417, subdivision (a)(2) violation, clearly indicate that the victim's awareness of the weapon that is “in her presence” is not one of them. People v. Norton (1978) 80 Cal.App.3d Supp. 14, 146 Cal.Rptr. 343 held that a violation of Penal Code section 417 is a general intent crime ( Id., at pp. 25-26, 146 Cal.Rptr. 343); People v. Mercer (1980) 113 Cal.App.3d 803, 169 Cal.Rptr. 897, indicates the offense is complete on exhibition of the weapon in a rude, angry, or threatening manner. Finally, the court in People v. Andrade (1978) 86 Cal.App.3d 963, 150 Cal.Rptr. 662, stated “This misdemeanor does not involve much more than a possession. Arguably perhaps it is but a dangerous form of possession.” ( Id., at p. 971, 150 Cal.Rptr. 662.) There is nothing in any of these cases to support grafting upon the “in the presence of a victim” language a requirement that the victim be aware of the brandishing. For purposes of the conduct which the statute is meant to deter, it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join. The thrust of the offense is to deter the public exhibition of weapons in a context of potentially volatile confrontations. The victim's unawareness of the weapon does little to mitigate the danger inherent in such situations. Therefore, we decline to require the victim's awareness of the weapon in her presence for a violation of Penal Code section 417 [California's “brandishing a weapon” law], subdivision (a)(2).”)

14People v. Norton (1978) 80 Cal.App.3d Supp. 14, 26.  (“In a prosecution under Penal Code section 417 [California's “brandishing a weapon” law], subdivision (a), the prohibited use of the firearm or deadly weapon is defined by statute. It is not necessary to show that the possessor intended to inflict injury on a victim. Once it is shown that the weapon is exhibited in a rude, angry and threatening manner, the offense is complete

15See People v. McKinzie at 794, endnote 12, above.  (“The thrust of the offense is to deter the public exhibition of weapons in a context of potentially volatile confrontations.”)

16California Penal Code 422 -- Criminal threats.  (“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”)

17Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

See also Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime>)]; [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

18Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose.

19See California Penal Code 417 -- Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers, endnote 1, above.

20See same.  Penal Code 417(a)(1) -- (“(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.”)

21See same.  Penal Code 417(a)(2)(B) --  (“(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”)

22See same.

23See same.  Penal Code 417(d) -- (“(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.”)

24See same.  Penal Code 417(b) – (“(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.”)

25See same.  Penal Code 417(c) -- (“(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer's uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison.”)

26California Penal Code 12028 -- Firearms and other weapons as nuisance; surrender of weapon; sale at public auction; restoration to owner; destruction.  (“...(b)(1) Except as provided in paragraph (2), a firearm of any nature owned or possessed in violation of Section 29800, 12021.1, or 12101 of this code, or Chapter 3 (commencing with Section 8100) of Division 5 of the Welfare and Institutions Code, or used in the commission of any misdemeanor as provided in this code, any felony, or an attempt to commit any misdemeanor as provided in this code or any felony, is, upon a conviction of the defendant or upon a juvenile court finding that an offense which would be a misdemeanor or felony if committed by an adult was committed or attempted by the juvenile with the use of a firearm, a nuisance.” Italics added to show how Penal Code 417 PC, California's “brandishing a weapon” law is applicable to this section.)

27California Penal Code 245 PC -- Assault with a deadly weapon.  (“(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

28California Penal Code 240 PC -- Assault.

29See People v. Aguilar at 1028, endnote, 3, above.  (“That the use of hands or fists alone may support a conviction of assault “by means of force likely to produce great bodily injury” is well established ( ibid.; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [10 Cal.Rptr.2d 839]; see People v. Duke (1985) 174 Cal.App.3d 296, 302-303 [219 Cal.Rptr. 873] [ when hands, fists and feet are employed in an assault, normally the charge will be assault with force likely to produce great bodily injury]…”)

30Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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