Brandishing a Firearm
Penal Code 417 –Brandishing a Firearm or Deadly Weapon in California
Like many states, California has a type of law that makes it illegal to exhibit or draw a deadly weapon in an argument or fight. While many gun owners have a license to carry a concealed firearm, brandishing a firearm or weapon in a manner that is rude or angry is a serious offense that can be prosecuted under California Penal Code Section 417.
For more information on brandishing a weapon causing injury: Penal Code 417.6
How Can I be Convicted of violating California’s Brandishing Laws?
Under California Law, the prosecution will accuse you of brandishing a firearm or deadly weapon in violation of PC 417 if:
- You drew or exhibited a firearm or deadly weapon in the presence of someone else.
- You did so in a rude, angry, or threatening manner, or unlawfully during a fight or argument.
- You did not act in self-defense or in the defense of someone else.
Notice, that to be accused of brandishing a firearm, it is not required that the firearm be loaded or pointed at the other person for it to be deadly. Furthermore, the other person does not even have to know that the firearm or weapon was present.
Notice that no injury or firing of the firearm is required under the statute. Also, if the defendant points an unloaded firearm at another person, he or she cannot be convicted for assault with a firearm (PC 245(a)(2)), because he or she lacked the present ability to commit a violent felony.
If, after hearing all of the evidence, a jury has reasonable doubt as to any of the above elements, then the defendant will be found “not guilty” of assault with a firearm under PC 245(a)(b).
Examples
- Shooting at someone though intentionally missing them. For example, pulling a prank on a friend while hunting.
- Waving a loaded firearm at a person
- Pistol whipping a person with a loaded or unloaded firearm
A deeper look into Penal Code Section 417
Under California law, a firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
- Pistol
- Rifle
It is any object, instrument, or weapon that is inherently deadly, or an object that is used in such a way that is capable of causing death or great bodily injury (greater than minor or moderate harm). Under PC 416.6, your body, such as fists, are not considered a deadly weapon, but a fist is considered deadly under PC 245.
- Knives
- Hammer
- Chainsaw
Penalties for Violating California’s Brandishing Laws
The penalties will vary depending on the circumstances of the offense, such as whether the person brandished a firearm or deadly weapon, or if it was done in the presence of law enforcement, or in a public place.
A violation of Penal Code 245 is a MISDEMEANOR if:
You brandished a deadly weapon (not a firearm) during a fight or argument
- Minimum of one (1) month in county jail.
You brandished a firearm (pistol, revolver, or any other firearm) in a public place
- Three (3) months to one year in county jail
- Maximum fine of one thousands dollars ($1,000)
- Both imprisonment and a fine
You brandished a firearm during a fight or argument
- Minimum one (1) month in county jail.
A violation of Penal Code 245 is a “wobbler” (felony or misdemeanor) in the following circumstances:
You brandished a firearm at a day care center
Brandishing a loaded firearm at a day care program, recreation program, or non-profit program for persons under 18 years of age during hours of operation is a wobbler, depending on several factors related to the case itself as well as your prior record. As a misdemeanor you face:
- Three (3) months to one (1) year in county jail
As a felony you face:
- Sixteen (16) months, two (2), or three (3) years in state prison.
You brandished a firearm in the immediate presence of a peace officer:
You brandished a loaded or unloaded firearm in the immediate presence of law enforcement
In a threatening or angry manner and, you reasonably knew or should have known that by the officer’s appearance that they were engaged in official duties.
As a misdemeanor you face:
- Nine (9) months to one (1) year in county jail
As a felony you face:
- Sixteen (16) months, or two (2) or three (3) years in state prison
Defenses to a charge of Violating California’s Brandishing Laws
Self-defense
This defense works if the defendant both honestly and reasonably believed in the need to resort to force in order to avoid a threatening situation –This too applies to the defense of another person. You can claim self-defense if:
There was an Imminent threat: The harm was right about to happen through actual show of force or through words that imply threat of force.
- You had reasonable fear: Fear is assessed according to what an ordinary and reasonable person would do under those circumstances. Keep in mind that acting out of fear does not always meet the reasonable person standard.
- You used proportional force: The force has to be proportional to the threat faced. A threat of being punched cannot be responded with the stabbing of the other person. Once there is no longer a threat of harm, the use of force to defend oneself is over.
Weapon or firearm was not displayed in an angry or threatening manner
One of the elements that the prosecution must prove is that the deadly weapon or firearm was displayed in an angry or threatening manner. If you were exhibiting the weapon to someone in a non-threatening manner, for example, to educate someone or reenact something, then this means that the display of the weapon or the firearm was probably misinterpreted.
You did not exhibit a deadly weapon
If it can be demonstrated that the object displayed could not have been capable of producing injury or death, then you cannot be convicted of this offense. As previously mentioned, , a deadly weapon is any object or instrument that is likely to produce death or great bodily injury. If a reasonable person in his or her position could not have believed that the object could produce death or great bodily injury, then it can be argued that this element of proof cannot be proven.
Related Offenses
Penal Code 245(a)(1) –Assault with a deadly weapon
Penal Code 245(a)(2) –Assault with a firearm
Penal Code 24500 –Illegally Carrying a Concealed Weapon
Hiring a Criminal Defense Lawyer
If you have been charged with assault with a firearm in the San Francisco Bay Area, it is important to consult with an attorney right away. Our job is to reduce that stress and work with you in earning the best possible outcome, whether that be a dismissal or a plea deal. If you are ready to discuss your case, contact our experienced attorneys at 1.833.8. NO. JAIL for a free and confidential consultation.
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