California Penal Code 417 PC makes it a crime to draw or exhibit any deadly weapon or firearm, such as a pistol or rifle, in a rude, angry, or threatening manner, or to use illegally uses a deadly weapon or firearm in any fight or quarrel. This offense is commonly referred to as “brandishing” a gun.
If you are being charged with this offense, it is important to have an experienced attorney represent you because this crime will likely be charged as a felony, exposing you to state prison. Having a felony on your record will not only ruin job opportunities, but will also prevent you from possessing a firearm for the rest of your life.
What the Prosecutor Must Prove to Convict You of a Firearm
In order to prove that you brandished a firearm under Penal Code 417 PC, the prosecutor must prove the following elements of the crime:
- that you drew or exhibited a deadly weapon or firearm in the presence of another person,
That either . . .
- you did so in a rude, angry, or threatening manner, or
- you did so unlawfully in a fight or quarrel, and
- that you were not acting in self-defense or in the defense of another person at the time.
To understand this crime, you really need to understand the definition of the words used in the law or statute.
See below for those explanations:
“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.”
Examples: Examples of everyday objects that may come within the definition of a deadly weapon when used to harm another person include (but are not limited to):
- a bat
- A pencil
- A bottle, especially if broken.
A firearm is defined under California law as a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.
Examples: Firearms can consist of any number of weapons, such as
In the presence of another person
This is important because there must be another person present and you must be aware or know that they are present and you must have the intent to exhibit it to them. Ways in which a person can be proven to have had this intent are:
- You were pissed off at your ex and so you went to their house and as soon as you saw them you pulled out a dirk or a dagger and pointed it at them,
- In a crowd of people you pull out a Browning Buckmark .22 caliber pistol to scare everybody off, just for fun, or
- You didn’t have enough money to pay for gas and when the cashier ran after you, as you drove away you pointed your gun out the window (note: this may be charged as robbery, burglary, and/or terroristic threats as well.)
Rude, angry, or threatening manner
How “Rude, angry, or threatening manner” is defined depends on the prosecutor, the judge, and most importantly if you go to trial, the jury members. That is because whether something is rude, angry or threatening is subjective, meaning that the definition depends on the person who is defining it. You may get a different definition of “rude” depending on whether you are asking a person in your own city or a city in another state.
What are the Defenses to Brandishing a Weapon?
There are a variety of defenses this crime or allegation. They include
Defense of your self requires that you reasonably believed you were at risk of imminent harm of death or bodily injury and that you use no more force than is necessary to reasonably defend yourself. Furthermore, once the threat of injury or death is no longer present, your right to self-defense also is terminated.
This means that if someone comes at you with his or her fists, you can pull out a knife and brandish it in a rude or threatening manner, whether you can actually stab the person depends on the circumstances. If it’s Mike Tyson, then you probably could because he can kill you with his fists. If it’s a 90-year old person, unlikely that you can stab them even if they are threatening to punch you.
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. If that were so, then you would have to worry about prosecution every time you carried your firearm in the presence of others, even if it was for a purpose such as to use it in a firing range for practice.
This means that if you are merely joking when you pulled out your rifle or deadly weapon, for example, you aren’t guilty of brandishing a weapon. However, you wouldn’t want to do this in the presence of your ex, because they might misunderstand; either intentionally or innocently.
False allegations / wrongful arrest
That last example brings up an important point. The purpose of Penal Code section 417 is to avoid escalating confrontations. Things tend to go very badly when someone pulls out a knife or other deadly weapon or a gun and that is the very result this law seeks to avoid and that really is a good thing. However, this law can be charged perhaps to easily. So you want to avoid those situations, such as mentioned, drawing or exhibiting a firearm in the presence of someone who has a personal grievance against you. If your ex is coming over the drop the kids off, it is not the time to start cleaning your guns. You’ll want to do that at another time to avoid being falsely accused of this crime.
Penalties, Punishment, and Sentencing for Penal Code 417 PC
The punishment for this crime depends on the circumstances and your criminal history.
Misdemeanor sentencing for brandishing a weapon
In every case, the minimum amount of jail time to be imposed for being convicted of violating Penal Code 417 is 30 days (however, it is likely you would be give “half-time” on this; meaning you would end up serving only 15 to 17 days.) Other circumstances are:
If in a public place and the firearm is capable of being concealed on your person, then the minimum amount of jail is three months to a year along with a $1,000 fine.
If a loaded firearm is drawn and exhibited in a rude or threatening manner during a fight or in the presence of others on the grounds of a daycare, non-profit, or health care facility, the crime is punishable as a felony, exposing you to up to three years in prison, or as a misdemeanor and punishable with three months to a year in jail.
If the loaded firearm is drawn or exhibited in a rude or threatening manner in the presence of someone cleaning up graffiti, the punishment can be for up to three years in prison and no less than three months in jail!
It is important to have the right attorney because in many cases, if you are being charged with a felony violation of this crime, he or she can get the charge reduced to a misdemeanor conviction. If you have a defense, then your attorney may even be able to get a dismissal or acquittal, meaning a “not guilty” result.
The other aspect of being charged with a violation of Penal Code section 417, is that whenever a gun or deadly weapon is drawn, it will likely expose the defendant to other charges, such as Penal Code section 422 (making terroristic threats), Penal Code section 245 (assault with a deadly weapon or force likely to produce great bodily injury), and if on a school ground, and Penal Code section 626.9 (carrying a firearm on school grounds) to name a few. You must have the right attorney to zealously represent you if you are charged with any of these crimes because a conviction can lead to severe restrictions on your liberty and constitutional rights!
When you are facing substantial jail time, you ought to consider:
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