Penal Code 417.4 PC makes it a crime to draw or brandish an imitation firearm in a threatening manner, such that it places others in fear. A conviction is a misdemeanor punishable by a minimum of 30 days and up to 6 months in jail.
The language of the statute reads that:
417.4. Every person who, except in self-defense, draws or exhibits an imitation firearm, as defined in subdivision (a) of Section 16700, in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor punishable by imprisonment in a county jail for a term of not less than 30 days.
- jumping out from an alley and aiming a BB gun at someone.
- pushing a neighbor and then pointing an imitation gun at him/her.
- yelling threatening words to someone and then waving a replica weapon in his/her face.
A person charged with a crime under this statute has the right to challenge it with a legal defense. Three common defenses include the defendant showing that he/she:
- did not perform a threatening act.
- did not make someone fear bodily harm.
- was acting in self-defense.
The crime is punishable by custody in county jail for a mandatory minimum of 30 days and up to 6 months.
Note that a judge can award a defendant with misdemeanor (or summary) probation in lieu of jail time.
Our California criminal defense attorneys will address the following in this article:
- 1. When is it a crime to draw an imitation firearm?
- 2. Can an accused raise a legal defense?
- 3. What are the penalties for violating PC 417.4?
- 4. Can a person get a conviction expunged?
- 5. Are there similar crimes?
1. When is it a crime to draw an imitation firearm?
A prosecutor must prove the following to successfully convict a defendant of brandishing an imitation firearm:
- the defendant drew or exhibited an imitation firearm in a threatening manner against another person,
- the defendant’s actions caused someone to fear bodily harm to himself or herself or someone else,
- that fear of harm was reasonable,1 and
- when the defendant drew or exhibited the imitation firearm, he/she was not acting in self-defense or in defense of someone else.2
An “imitation firearm” is a device that is so substantially similar to a real firearm in color and overall appearance that a reasonable person would believe that it is a real firearm.3
2. What are the best defenses to Penal Code 417.4 PC?
A person accused under this code section has the right to challenge the accusation with a legal defense. Three effective defenses include the defendant showing that he/she:
- did not act in a threatening manner.
- could not have caused a person to fear bodily harm.
- acted in self-defense.
2.1 No threatening act
A person is only guilty under this statute if he/she drew an imitation weapon in a threatening manner. This means it is always a defense for an accused to show that he/she did not commit a threatening act. Perhaps, for example, the defendant brandished a fake gun as a joke.
2.2 No fear of bodily harm
Recall that a defendant can only be convicted under this statute if his/her actions caused another person to fear bodily harm. Therefore, it is a defense is for an accused to show that his/her acts could not have reasonably caused someone to experience fear.
Per the language of PC 417.4, a person is not guilty of brandishing a fake firearm if he/she did so while acting in self-defense. This includes the defense of him/herself or another person.
3. What are the penalties for violating PC 417.4?
A violation of this code section is a misdemeanor offense.4
The crime is punishable by imprisonment in county jail (as opposed to state prison) for a minimum of 30 days and up to a maximum of 6 months.5
A judge does have the authority to award a defendant with misdemeanor probation in lieu of jail time.
4. Can a person get a conviction expunged?
A person convicted under this statute can get the conviction expunged, per Penal Code 1203.4 PC.
This is provided the person successfully completes:
- jail time, or
- probation (whichever was imposed).
5. Are there similar crimes?
There are three crimes related to drawing a fake gun. These are:
- brandishing a weapon or firearm – PC 417,
- aiming or pointing a laser scope or pointer – PC 417.25, and
- assault with a firearm – PC 245a2
5.1 Brandishing a weapon or firearm – PC 417
Penal Code 417 PC is the California statute that makes it a crime for someone to brandish a firearm or deadly weapon. “Brandishing” means to:
- draw or exhibit a deadly weapon or firearm, or
- use a deadly weapon in a fight.
Note that while PC 417.4 pertains to fake firearms, this law focuses on real firearms or weapons.
5.2 Aiming or pointing a laser scope or pointer – PC 417.25
Penal Code 417.25 PC is the California statute that makes it a crime for a person to point a laser scope, or a laser pointer, at another person in a threatening manner.
As with brandishing an imitation firearm, a violation of this statute is charged as a misdemeanor and is punishable by up to 30 days in jail.
5.3 Assault with a firearm – PC 245a2
Per Penal Code 245a2 PC, assault with a firearm can be charged when an offender assaults a victim using a pistol, rifle, shotgun, semiautomatic firearm, machine gun, .50 BMG rifle or assault weapon.
Unlike PC 417.4, a person has to do more than just draw a weapon to be convicted under this law. For example, an assault can take the form of:
- pointing a firearm at an alleged victim,
- striking or “pistol-whipping” the victim,
- firing the gun at the victim, or
- actually shooting the victim.
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group.