It is a crime in California to exhibit a deadly weapon or firearm in a fight. Many people in the East Bay are living under a threat of violence. In the tense atmosphere, accusers may see a “weapon” when someone is simply holding a tool, phone, or even their car keys. It does not take much more than an accusation that someone was brandishing a weapon before someone can end up under arrest. This means that innocent people are getting arrested for threatening someone with a weapon, even if there is no proof that they did anything wrong.
After the police arrest someone for brandishing a firearm or weapon, the accused may think they have no option but to plead guilty and take the plea deal. Instead of giving in to the threats of the prosecutor, talk to an experienced local East Bay criminal defense lawyer for help.
Penal Code 417 PC Text
Under California Penal Code Section 417, it is a crime for any person to:
- Draw or exhibit any deadly weapon in a rude, angry, or threatening manner; or
- Unlawfully use a deadly weapon in any fight or quarrel.
A deadly weapon includes any firearm, whether loaded or unloaded. A deadly weapon also includes any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. This is a broad definition, but “deadly weapons” in court cases have included:
- Broken bottle
- Baseball bat
The penalties for brandishing a weapon may depend on the surrounding circumstances. As a misdemeanor, brandishing a deadly weapon is a misdemeanor, punishable by up to 30 days in jail.
Brandishing a concealable firearm in public is punishable by up to a year in jail and a fine of up to $1,000. A concealable firearm is generally a gun with a barrel less than 16 inches long, which would include just about all pistols and sawed-off rifles or shotguns.
Elements of the Offense
There are separate elements of each criminal offense that have to be proven beyond a reasonable doubt. If there is any doubt that even one element is not met, you should not be found guilty.
Under the Judicial Council of California Criminal Jury Instructions, to prove the defendant is guilty of PC 417, the state has to prove:
- The defendant drew or exhibited a firearm or deadly weapon in the presence of someone else; AND
- The defendant did so in a rude, angry, or threatening manner; OR
- The defendant unlawfully used the firearm or deadly weapon in a fight or quarrel; AND
- The defendant did not act in self-defense or in defense of someone else.
Whether an object is a deadly weapon should be considered based on the surrounding circumstances. For example, chasing someone down the street swinging a wrench may seem like exhibiting a deadly weapon in a threatening manner. However, if someone was working on their car while holding a wrench and yelled at someone, that may not be considered a deadly weapon if the individual was holding it to do car repairs.
Other Brandishing Offenses
Under California Penal Code Section 417.1, brandishing a laser scope is a misdemeanor. The laser scope does not have to be attached to a firearm, only capable of being attached to a firearm.
Under California Penal Code Section 417.2, it is a violation to point a laser scope at a peace officer. A first offense is a misdemeanor but a second offense can be punished by up to a year in jail.
Under California Penal Code Section 417.3, brandishing a firearm to an occupant of a motor vehicle in a threatening manner is a felony. The penalties for brandishing a gun to a driver include up to 3 years in prison and a fine of up to $3,000.
Under California Penal Code Section 417.4, it is still a crime to brandish a firearm even if the firearm is fake. This includes a pellet gun or air gun that reasonably looks like a gun. Brandishing an imitation firearm is a misdemeanor punishable by up to 30 days in jail.
Under California Penal Code Section 417.8, it is a felony to brandish a firearm or deadly weapon with the intention to resist arrest or prevent arrest. Brandishing to resist arrest is punishable by 2, 3, or 4 years in state prison.
Defense Strategies for Brandishing Weapons Charges in California
Self-defense is a type of affirmative defense to a number of criminal charges. An affirmative defense generally means that you did do the alleged action but that it was justified and is not a crime under the circumstances. Self-defense can be used as a defense in cases of alleged brandishing of a weapon.
Defense of others is another affirmative defense that might be available in charge for brandishing a deadly weapon or firearm. A person can act lawfully in self-defense or defense of another if:
- The defendant reasonably believed that he or she or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND
- The defendant used no more force than was reasonably necessary to defend against that danger.
Defense Lawyer for 417 PC Charges in Alameda and Contra Costa Counties
The police do not have to have a lot of evidence to make an arrest. However, an arrest is not the same thing as a conviction. The prosecutor has a higher burden of proof and you should not plead guilty until you understand your rights and options. You may have a much stronger case than you realize.
East Bay attorney Lynn Gorelick has more than 37 years of criminal defense experience and understands the consequences of pleading guilty to a crime without challenging the charges. Representing individuals in Alameda County and Contra Costa County, Lynn Gorelick is familiar with the local criminal laws, local officers, and the prosecutors involved. Contact East Bay criminal defense lawyer Lynn Gorelick today.