Penal Code 417.4 PC – Brandishing an Imitation Firearm in California

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.

Examples

• 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.

Legal Defenses

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.

Penalties

A violation of this code section is charged as a misdemeanor (as opposed to an infraction or a felony).

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?
  • 2.1 No threatening act
  • 2.2 No fear of bodily harm
  • 2.3 Self-defense
• 3. What are the penalties for violating PC 417.4?
• 4. Can a person get a conviction expunged?
• 5. Are there similar crimes?
  • 5.1 Brandishing a weapon or firearm – PC 417
  • 5.2 Aiming or pointing a laser scope or pointer – PC 417.25
  • 5.3 Assault with a firearm – PC 245a25

PC 417.4 prohibits brandishing an imitation gun in a threatening way.

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:

1. the defendant drew or exhibited an imitation firearm in a threatening manner against another person,
2. the defendant’s actions caused someone to fear bodily harm to himself or herself or someone else,
3. that fear of harm was reasonable,¹ and
4. 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:

1. did not act in a threatening manner.
2. could not have caused a person to fear bodily harm.
3. 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.

2.3 Self-defense

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.

Brandishing an imitation gun is a California misdemeanor.

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:

1. brandishing a weapon or firearm – PC 417,
2. aiming or pointing a laser scope or pointer – PC 417.25, and
3. 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.

Call our law firm for help. We offer free consultations.

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.

Legal References:

1. See In re Michael D. (2002) 100 Cal.App.4th 115.
2. CALCRIM No. 985 – Brandishing an Imitation Firearm. Judicial Council of California Criminal Jury Instructions (2020 edition).
3. See same.
4. California Penal Code 417.4 PC.
5. See same.