Penal Code 417 PC – Brandishing a Weapon or Firearm

Brandishing a Weapon | CA Penal Code 417 PC

More info at http://www.shouselaw.com/brandishing-weapon-pc417.html 888-327-4652 ‘Brandishing a weapon or firearm’ – Penal Code 417 PC – CA criminal defense lawyers explain 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 a. you did so in a rude, angry, or threatening manner, or b. 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. Depending on the circumstances, ‘brandishing a weapon or firearm’ could be filed as a misdemeanor or a felony. Penalties could include probation, fines, jail, prison and loss of one’s gun rights.


Penal Code 417 PC
is the California statute that defines the crime of brandishing a firearm or deadly weapon. A person commits this offense by (1) drawing or exhibiting a deadly weapon or a firearm, or (2) using a deadly weapon in a fight.

The code states that:

“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.

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…[guilty of a crime].”

Examples of illegal acts under 417 PC are:

  • Julie grabs a butcher knife and points it at her boyfriend.
  • Jerome is in a fight with his neighbor and hits him in the head with the grip of his handgun.
  • Eddie lifts his shirt to reveal the pistol in his waistband.

Defenses

A defendant can raise a legal defense to contest a brandishing charge. A few common defenses are that the defendant:

  • acted in self-defense,
  • did not act in a threatening manner, and/or
  • did not have a “deadly weapon” or firearm.

Penalties

A violation of this statute is typically charged as a misdemeanor (rather than a felony or an infraction). As a misdemeanor, the crime is punishable by imprisonment in county jail for up to one year.

Penalties may grow more severe depending on the facts of the case. More severe punishments can include:

  • felony charges, and/or
  • imprisonment in the state prison.

Note that a brandishing conviction may have negative:

A person convicted of this offense is entitled to an expungement if he completes:

  • probation (if imposed), or
  • any jail time (if imposed).

Our California criminal defense attorneys will highlight the following in this article:

man brandishing a gun
Penal Code 417 makes it a crime for a person to brandish a weapon or firearm.

1. When is the brandishing of a weapon or firearm a crime?

Penal Code 417 makes it a crime for a person to brandish a weapon or firearm.1

A prosecutor must prove the following to convict a defendant of this crime:

  1. the defendant drew or exhibited a deadly weapon or a firearm in the presence of someone else,
  2. the accused did so in a rude, angry or threatening manner,
  3. or the defendant used the weapon or firearm in a fight or quarrel,
  4. and the defendant did not act in self-defense.2

A “deadly weapon” is any object or weapon that is inherently deadly. It is also one that can be used to cause death or great bodily injury.3

If a person brandishes a weapon and causes serious bodily injury, he can be charged with a more serious offense under Penal Code 417.6 PC.

Note that it is not necessary for a weapon to be pointed at someone for it to be “deadly.”4

Example: John is arguing with his girlfriend and grabs a hammer. The hammer is a deadly weapon, under the circumstances, no matter if he points it at his girlfriend or approaches her while waving it in the air.

As to cases involving a firearm, a defendant can be guilty of a crime even if the alleged victim was not aware that the accused had a gun.5

Example: Jose angrily waves a gun at a drunken bar patron. While the patron may not have realized there was a gun (because intoxicated), Jose is still guilty of a crime.

2. Are there legal defenses?

A defendant can raise a legal defense to try and beat a brandishing charge.

Three common defenses are:

  1. self-defense,
  2. no threatening behavior, and/or
  3. no deadly weapon or firearm.

2.1. Self-defense

A person is innocent under this law if he was acting in self-defense. A person lawfully acts in self-defense when he:

  1. reasonably believes that he, or another person, is about to suffer imminent harm, and
  2. he fights back with no more force than is reasonably necessary to defend against the danger.6

Example: It is appropriate self-defense when Carol points a broken bottle at Mark after he threatens to rape her. Here, the threat makes her believe that she is about to be harmed and the use of a broken bottle is not excessive force under the circumstances.

2.2. No threatening behavior

Recall that a person is only guilty under this statute if he brandished a weapon or gun in a “rude, angry, or threatening” manner (as determined by the facts of the case). This means it is a defense for an accused to show that he did not act in such a way.

2.3. No deadly weapon or firearm

PC 417 only applies if a defendant was armed with a “deadly weapon” or a firearm. Therefore, a defense is for the defendant to show that he did not have one of these objects.

man behind bars for brandishing a weapon
A violation of this law can result in a fine and/or jail time

3. What are the penalties for 417 PC?

Most violations of this statute are charged as misdemeanors.7 The offense is punishable by imprisonment in the county jail for up to one year.8

Note that if a person brandishes a firearm on the grounds of a day-care center while it is open for use, then he can be charged with either:

  • a misdemeanor (punishable by up to one year in jail), or
  • a felony (punishable by up to three years in state prison).9

The same penalties apply if a person brandishes a firearm in the presence of a police officer who is engaged in his duties.10

4. Are there immigration consequences if a person brandishes a firearm ?

A conviction may have negative immigration consequences.

Firearm offenses can mean that:

This means a brandishing conviction can prove detrimental if the act was done with a gun.

5. Can a person get a conviction expunged?

A person convicted of this crime is entitled to an expungement provided that he:

  1. successfully completes probation, or
  2. completes a jail term (whichever is relevant).

If a party violates a probation term, he could still possibly get the offense expunged. This, though, would be in the judge's discretion.

Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.12

6. Does a conviction affect a person's gun rights?

A conviction under PC 417 may have a negative effect on the convicted party's gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California. The same holds true for people with two or more convictions under PC 417.

Therefore, a defendant will lose his gun rights under this law if:

  1. his offense is charged as a felony, or
  2. he is convicted under the statute more than once.

7. Are there crimes related to the brandishing of a weapon?

There are three crimes related to brandishing a weapon or firearm. These are:

  1. assault with a deadly weapon – PC 245a1
  2. assault with a firearm – PC 245a2, and
  3. assault by means likely to produce great bodily injury – PC 245a4

7.1. Assault with a deadly weapon – PC 245a1

Under Penal Code 245a1 PC, a person commits this crime if he:

  1. commits an assault, and
  2. does so using a deadly weapon.

Unlike Penal Code 417, this law requires a showing that a defendant intended to harm the alleged victim.

7.2. Assault with a firearm – PC 245a2

Per Penal Code 245a2 PC, a person commits a crime if he commits an assault with a firearm.

Like PC 245a1, this code section requires a showing that the accused intended to harm the alleged victim.

7.3. Assault by means likely to produce great bodily injury – PC 245a4

Penal Code 245a4 PC is the California statute that makes it a crime for a person to:

  1. commit an assault, and
  2. to do so by using force likely to produce “great bodily injury.”

"Great bodily injury" is a legal term that means a significant or substantial injury.

Were you accused of brandishing a weapon or a firearm in California? Call us for help…

california weapon criminal defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under Penal Code 417 PC, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

For similar accusations in Nevada, please see our article on: “Nevada Laws for ‘Drawing a Deadly Weapon in a Threatening Manner'.”


Legal References:

  1. California Penal Code 417 PC.

  2. CALCRIM No. 983 - Brandishing Firearm or Deadly Weapon. Judicial Council of California Criminal Jury Instructions (2017 edition).

  3. See same. See also People v. Brown (2012) 210 Cal.App.4th 1.

  4. People v. Sanders (1995) 11 Cal.4th 475.

  5. People v. McKinzie (1986) 179 Cal.App.3d 789.

  6. Judicial Council of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide).

  7. California Penal Code 417 PC.

  8. See same.

  9. See same.

  10. See same.

  11. See INA 237 (a) (2) (A).

  12. California Penal Code 1203.4 PC.

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