CA Penal Code 417

Brandishing a Weapon

You can be convicted of brandishing a weapon, or firearm, under CA Penal Code 417[1], if you draw or exhibit a weapon in a rude, threatening, or angry manner.

In order to be convicted of the crime the prosecutor must prove the three elements of the crime:

  1. That you drew or exhibited a deadly weapon in the presence of another
  2. That you did so either in a rude, threatening or angry manner, or during a fight
  3. That you did not do so while acting in self-defense or in the defense of another

Brandishing a weapon can be tried as either a felony or a misdemeanor depending on the details of the crime and your criminal record.  If the prosecutor can prove each of the elements of the crime beyond a reasonable doubt then you will face:

  • If you are convicted of brandishing a deadly weapon (other than a firearm) then you will face a minimum of 30-days in county jail.
  • If you are convicted of brandishing a firearm then you will face up to 6-months in county jail.
  • If you are convicted of brandishing a concealable firearm (revolver, pistol, etc.) then you will face:
    • Up to 1-year in prison
    • Up to $1,000 in fines
    • If you are convicted of brandishing a firearm at an occupied child day-care center then you will face:
      • Up to 1-year in county jail (as a misdemeanor)
      • Up to 3-years in prison (as a felony)
    • If you are convicted of brandishing a firearm in the presence of a police officer then you will face:
      • Up to 1-year in county (as a misdemeanor)
      • Up to 3-years in prison (as a felony)

It’s important to note that if you are convicted of any of the above mentioned criminal offenses then you could lose your right to carry a firearm in California.

Prosecuting Brandishing a Firearm

It’s essential to have a full understanding of the language of the penal code in order to understand how the prosecutor successfully convicts.  As previously mentioned.  In order to be convicted of the crime the prosecutor must prove the following elements of the crime beyond a reasonable doubt:

  1. That you drew or exhibited a deadly weapon in the presence of another
  2. That you did so either in a rude, threatening or angry manner, or during a fight
  3. That you did not do so while acting in self-defense or in the defense of another

The first element of the crime states that prosecutor must prove that you drew or exhibited a deadly weapon in the presence of another.  A deadly weapon is defined as, “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”.

In the presence of another simply means that there was somebody else present when you exhibited the weapon.  Oddly enough there is not a requirement that you pointed the gun at someone or that the person even knew about the presence of the gun; the only requirement is that there was another person in the immediate vicinity when you drew the weapon.

The second element of the crime is that you exhibited the weapon in a rude, angry or threatening manner.  This element of the crime is relatively self-explanatory but still requires a brief explanation.  This law was created to prevent people from threatening others with weapons, even if there was never an intent to cause bodily harm to another.  All the prosecutor has to do in order to prove this element of the crime is show that you exhibited the manner with some intensity.

The third element of the crime states that you did not draw the gun in an act of self-defense or in the defense of another.  Here the prosecutor is required to show that you were not in immediate danger of sustaining great bodily injury and you drew the gun on your own accord.

Defending Brandishing a Weapon

There are several common legal defenses that a criminal defense lawyer will investigate to prove your innocence to the court.  The first legal defense is to question the third element of the crime, in other words, that you were acting in self-defense.  If you were acting in self-defense then you cannot be convicted of CA Penal Code 417 because California protects its citizens from being punished for protecting themselves.  However, it’s important to note that you are only protected under California self-defense laws when you:

  • Reasonably believe that you or another person is in imminent harm, and
  • You don’t use excessive force to defend yourself when you fight back

If the weapon was not exhibited in a rude, threatening or angry manner then you cannot be convicted of brandishing a weapon.  If you were simply educating someone about the weapon or removing it from a case to clean the firearm in a safe manner then you didn’t fulfill the second element of the crime and therefore cannot be convicted.

These are only the two most common legal defenses for brandishing a weapon, but each case is treated independently from the next and requires its own investigation and legal defense.  If you are facing brandishing a weapon charges then it’s imperative to talk to a skilled criminal defense lawyer immediately.

Seppi Esfandi is a Certified Specialist in Criminal Law with over 13 years of experience defending clients for a plethora of crimes, including brandishing a weapon.  Call today for a free consultation.

 

References

[1] http://law.onecle.com/california/penal/417.html

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