The crime of “brandishing a weapon or firearm” is described in California Penal Code Section 417. This statute criminalizes the act of drawing or exhibiting a deadly weapon in a threatening manner in the presence of another person. You don't have to have intent to harm anyone or even if an alleged victim observed the weapon. It's a crime just to draw, exhibit, or use the weapon in an angry or threatening way.
So, what exactly is considered rude, angry, or threatening? This vital element of the crime is often targeted by experienced criminal defense lawyers who are defending their client against charges of brandishing a weapon in violation of Penal Code 417. Clearly, in cases where you may have been showing off a new weapon would not qualify under the definition of branding a weapon.
Rather, in situations where you may have exhibited a weapon in a rude or threatening manner during an argument or fight with another person would qualify as violating PC 417. So, what exactly could be considered deadly weapon? By law, it includes any weapon or dangerous instrument that can be used in a manner capable of causing a great bodily injury or death.
This means any item such as an actual weapon, or even a broken bottle, hammer, brass knuckles, ax, razor blade, metal pipe, baseball bat, or even a fake firearm. A firearm under PC 417 includes any pistol, revolver, rifle, or shotgun. A “great bodily injury” means significant or substantial physical injury, something more than a minor injury. A deadly weapon doesn't include parts of your body, such as a fist.
If you are facing allegations of the violent crime of brandishing a weapon in Los Angeles County, you need to consult with our Los Angeles criminal defense attorneys at Cron, Israels & Stark. It would be in your best interest to remain silent and not answer any questions from police detectives as you may incriminate yourself.
Remember, police are well paid to build a case against you. They are not your friend or on your side.
Legal Definition of Brandishing a Weapon
As stated above, brandishing a weapon or firearm is defined under California Penal Code 417 PC as follows:
- "Anyone who, except in cases of self-defense, in the presence of another individual, draws or exhibits any deadly weapon, other than a firearm, in a rude, angry, or threatening manner, or uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by not less than 30 days in a county jail."
In order for the Los Angeles County prosecutor to convict you of brandishing a weapon under PC 417, they have to be able to prove all the elements of the crime. These critical elements are described under CALCRIM 983 Jury Instructions as follows:
- You drew or exhibited a deadly weapon in the presence of another person
- You did so in a rude or threatening manner, or
- You unlawfully used the weapon in a fight or quarrel
- You did not act in self-defense or defense of another person
Again, a deadly weapon is an object or actual weapon that is inherently deadly or capable of being used a way that can cause great bodily injury. A firearm is defined as a device that is specifically designed to be used a weapon where a projectile can be expelled through a barrel.
Legal Penalties for Penal Code 417 PC
If convicted of misdemeanor brandishing a weapon other than a firearm, you could face up to 30 days in county jail. In some cases, the offense is a “wobbler,” meaning the case can be filed as either a misdemeanor or felony crime, based on a variety of factors, including the facts of your case and criminal history.
Misdemeanor sentences for brandishing a weapon include drawing a deadly weapon in a threatening manner or during a fight. If convicted of brandishing a firearm in a public place, you could receive a sentence of up to one year and a fine up to $1,000 fine.
Felony sentences for brandishing a weapon include situations where you are convicted of drawing or exhibiting a firearm in an angry or threatening manner on the grounds of an open child day care center or in the immediate presence of a peace officer engaged in the performance of their duties. A felony sentence could be up to three years in a California state prison.
It's should be noted that while California Penal Code 417 brandishing a weapon is similar to California Penal Code 245, assault with a deadly weapon, they are different.
How? ADW has the requirement that you had intent to harm the victim, while brandishing a weapon has no such requirement. California's 10 20 Life, “Use a Gun and You're Done” law which list mandatory minimum prison sentences if you use a firearm during specific violent felony crimes.
Legal Defenses for PC 417 Brandishing a Weapon
Our experienced criminal defense lawyers can use a wide range of defense strategies to defend you against charges of brandishing a weapon under Penal Code 417, including:
Self-Defense: In some cases, we might be able to show you were acting in self-defense or defense of another person. Perhaps we can prove you were lawfully acting in self-defense or had reasonable belief you or someone else was about to suffer imminent harm and you only fought back with necessary force to defend against the danger.
Weapon was not displayed in a rude or threatening manner: In some cases, our criminal lawyers might be able to show you did not display the weapon the weapon in a rude, angry, or threatening way as required in the elements of the crime listed above. Simply drawing or exhibiting a weapon is not a criminal act under Penal Code 417.
False Accusation: Our lawyers might be able to prove through witness statements and other evidence that the allegations against you are false. We might be able to prove the alleged victim made the allegations out of anger or revenge.
If you have been accused of brandishing a weapon under California Penal Code 417, contact our law firm to review the specific details of you situation.
We can start preparing an effective defense strategy to obtain the best possible outcome on your case. A conviction can have a life-changing impact on your life. We will closely examine all the details and discuss legal options moving forward.