Posted on May 13, 2015

California PC § 417 │ Brandishing a Weapon or Firearm

In California, brandishing a weapon is codified under Penal Code 417 making it unlawful for someone to draw or exhibit a deadly weapon in a rude, angry, or threatening manner or unlawfully using a deadly weapon in a fight or quarrel.  A deadly weapon can be a firearm or any object capable of inflicting great bodily injury.  Brandishing is typically a wobbler, giving the prosecutor discretion to charge someone with either a felony or misdemeanor.

ELEMENTS TO BRANDISHING

According to CALCRIM 983, in order for someone to be found guilty of brandishing a weapon or firearm under PC 417, the prosecutor must prove beyond a reasonable doubt:

1. Defendant drew or exhibited a firearm or deadly weapon in the immediate presence of someone else;

2. Defendant did so in a rude, angry, or threatening manner, or unlawful used the firearm or deadly weapon in a fight or quarrel;

3. Defendant was not acting in self-defense or the defense of another

LEGAL DEFENSES TO PC 417

• You were acting in reasonable self-defense to prevent harm to yourself or another person

• You did not exhibit a weapon or firearm in the immediate presence of someone else

• You did not use the firearm or deadly weapon in a rude, angry, or threatening manner

• You are being falsely accused by the alleged victim

• You were mistakenly identified as the perpetrator

PUNISHMENT & SENTENCING

• 30 Day Minimum Jail Sentence

• Court fine up to $1,000

• Anger Management / Counseling

• Court Fines and Fees

• Victim Restitution

• Protective / Restraining Order Imposed

WHAT CONSTITUTES A WEAPON?

• Gun / Firearm / Rifle

• Knife

• Baton

• Bottles

• Rocks / Bricks

• Brass Knuckles

BRANDISHING EXAMPLES

Dan was in an altercation with Bill in a Los Angeles neighborhood. Dan decided to scare Bill to teach him a lesson not to mess with him. Dan lifted his shirt exposing a firearm in his waist band and told Bill, “Come forward and you’ll see what happens.” In this case, Dan would arguably be guilty of brandishing a firearm because he exposed the firearm in a threatening manner in an effort to teach Bill a lesson not to mess with him.

Dan was walking with his girlfriend in downtown Los Angeles. He was approached by a group of individuals who were trying to take Dan’s wallet and his girlfriend purse. When they refused, the situation escalated where one of the group members pulled out a knife and threatened Dan and his girlfriend. In response, Dan pulled out his gun from his waist band and pointed it towards the ground. An LAPD police officer observed Dan pulling out a gun and immediately arrested him from brandishing a firearm/weapon. In this case, Dan would not be guilty of brandishing a firearm because he was acting in self-defense against himself and his girlfriend after one of the group members pulled out a knife to effectuate a robbery against him.

FREE CRIMINAL DEFENSE CONSULTATION

If you have been accused, arrested, or charged with brandishing a weapon or firearm (PC 417), contact a Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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