Brandishing Deadly Weapon or Firearm

Facing a criminal charge involving any type of weapon should be taken seriously. The penalties include potential jail or prison time. In addition to the immediate punishments, there are long-term consequences that often get overlooked. Having this type of offense listed on your criminal record will impact all future interactions with law enforcement, not to mention the effect it will have on future employment and housing opportunities.

If facing an offense like this, one of the first things a defendant should do is seek the help of an experienced criminal defense attorney. The right defense lawyer knows how to adequately defend you against such grievous allegations. To gain a broader understanding of this statute, let’s first take a look at how California defines it.

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Defining brandishing a weapon or firearm

California outlines brandishing a deadly weapon or firearm laws under Penal Code 417. It states showing, exhibiting, displaying, waving, or presenting a deadly weapon and/or firearm in an intimidating manner is a crime. More specifically, this crime is committed when:

  • A deadly weapon was brandished,
    • A deadly weapon includes a firearm, sword, kitchen knife, meat cleaver, hammer, metal pipe, bat, brick, or other objects that can be considered deadly.
    • The object can be used to cause serious bodily injury or death.
    • Brandished means it was either shown, presented, displayed, exhibited, shaken, or waved.
  • In an intimidating manner,
    • This means the weapon was displayed either rudely, angrily, or threateningly.
  • While another person was present,
    • This also includes whether the deadly weapon was used in a heated argument or fight.

The weapon does not have to be directly aimed at anyone for someone to be charged with PC 417. You can still be charged for simply showing another person the deadly weapon. However, this excludes situations where the defendant was acting in self-defense. 

Closely-Related Offenses

There is a list of commonly associated offenses that someone could face in addition to PC 417, brandishing a weapon or firearm. The following only lists some of these similar offenses.

California Penal Code 21310 - carrying a concealed dirk or dagger;

This law prohibits carrying or possessing a concealed dirk, dagger, or knife that can be used to stab another person, causing serious bodily injury or death.

California Penal Code 25400 - carrying a concealed weapon;

You break this law when you carry or possess a concealed firearm, either on your physical person or concealed in a vehicle.

California Penal Code 245(a)(1) - assault with a deadly weapon;

This crime is also referred to as AWD and is committed when you assault another person using a deadly weapon. Assault means you unlawfully attempted to violently cause injury to another person using a deadly weapon other than a gun.

Calfornia Penal Code 245(a)(2) - assault with a firearm;

This law prohibits assaulting another person, or unlawfully attempting to commit a violent injury on someone else using a firearm.

California Penal Code 217.1 - an assault on a public official;

This statute outlines the crime of unlawfully committing a violent injury or attempting to commit a violent injury on a public official while they are conducting their official duties. This offense carries harsher consequences than simple assault.

What The Prosecution Must Do

The prosecution must prove beyond a reasonable doubt the elements of the crime took place. Also known as the fact of the case, they are as follows:

Elements of the Crime

  • The defendant brandished or exhibited a deadly weapon or firearm in the presence of another individual,
  • They did so in a rude, angry, threatening or otherwise intimidating manner, and
  • The defendant was not acting in self-defense.

It is important to note, the weapon in question does not have to be pointed or used against the alleged victim/individual who was present. In fact, the defendant need only show them the weapon while exhibiting intimidating behavior.

The prosecution will fight hard to pursue a conviction if this act was also done in the presence of minors or while on public grounds or government property. Finding a tough criminal defense lawyer could mean the difference between a lighter sentence or maximum penalties.

Who Can Be Charged

The following examples illustrate who can be charged with brandishing a weapon or firearm under PC 417. It’s also possible to be charged with multiple offenses, depending on the details of the case.

Example #1:

Jacee was crossing the street when a car honked at him. Angry, he lifted his shirt revealing the grip of a gun in his waistband. He began walking toward the driver’s side. The car reversed, drove away, and reported him.

Jacee could face charges for PC 417, brandishing a firearm even though he never pulled the gun out of his waistband or pointed it at anyone. Even if the weapon was only seen for a second before the shirt concealed it again, Jacee reacted to the driver’s honk in an angry, intimidating way. Furthermore, if Jacee has no legal permit for carrying the gun, he can also face charges for carrying a concealed firearm under PC 25400.

Example #2:

Todd was arguing with his neighbor in the driveway. The argument escalated to a yelling match and Todd ran into his garage and grabbed his hammer. He held the hammer to his side while continuing to curse and yell at his neighbor. A passerby called the police and reported them.

Both men were aggressive and using verbally abusive language that was loud enough to disturb the other neighbors. They could both face charges for disturbing the peace under PC 415.

Even though Todd never used the hammer, the act of running into the garage to grab it mid-argument and holding it in plain view during an obviously heated confrontation would be considered intimidating. This threatening behavior would be cause for brandishing a deadly weapon offense, PC 417.

Example #3:

Bob and Phil were golfing. Bob grew more agitated that Phil was doing better than he was. Phil teased and laughed at Bob, gloating. Bob yelled and tackled Phil to the ground. Then he reached for his driver and held it above his head as though he were going to hit Phil with it. The caddy got involved and deescalated the situation before Bob could strike.

Aside from facing a battery offense under PC 242, Bob would also face charges for PC 417, brandishing a deadly weapon. The golf club can be used to seriously injure or kill another person. Bob lost his temper and acted as though he were going to use the golf club to violently attack Phil.

Example #4:

Tyler was working out at the gym. He set up his weights for the bench press but had to use the restroom. To indicate the bench was in-use he left his towel and water bottle on it. When he returned, Ethan had moved his things to use the bench. Tyler expressed his dismay, stating he was still using this equipment. Ethan ignored him and it escalated to an argument. Tyler got so angry he picked up a 45-pound dumbbell acting as though he was going to attack Ethan with it. Gym staff stopped him before anyone could get hurt.

The act of picking up the dumbbell and holding it in a threatening manner during the heated quarrel is enough to charge Tyler with brandishing a deadly weapon. A dumbbell, especially a 45-pound weight could cause extreme injury or even death to anyone hit with it. Even though he never laid a hand on Ethan and even though the argument remained verbal, Tyler was motioning with the weight, making it look like he would strike or throw it. Tyler could be charged with PC 417 brandishing a weapon. 

Legal Defense

Fortunately, there are several common defenses that a criminal defense lawyer will be familiar with to help with your case. These are just some of the defenses that have been used to fight against charges for brandishing a weapon or firearm, PC 417.

Lack of Intimidating Behavior

One factor of this offense is whether the defendant used angry, rude, or threatening behavior while holding a deadly weapon. If this aspect was not present, you should not be guilty of brandishing a weapon.

For instance, Zeke wanted to show his new gun to his neighbor, Ash. When he pulled it out to show her, she jumped. The roommate saw her reaction from across the room and tackled Zeke. Then called the police on him.

Zeke should not be guilty of brandishing a firearm because of the roommate’s misunderstanding of the situation. He only wished to show Ash whose reaction was from surprise, not out of fear. He lacked the rude, angry, or threatening behavior that would otherwise make him guilty. 

Was it in self-defense?

There are instances where brandishing a weapon or firearm was committed, but only out of self-defense. If you felt as though you were at risk of being seriously injured or feared for your life and only displayed or used a weapon to defend yourself, you should not be guilty of PC 417.

Liza, for example, was walking home from night school when a guy walking by purposely bumped into her. Then he blocked her path and wouldn’t let her pass. Fearing for her safety, she pulled out her pocket knife and fully exposed the blade. A police officer driving by noticed and stopped. Before Liza could explain she was arrested and charged with brandishing a weapon.

Luckily, a good samaritan had witnessed the encounter and came to Liza’s defense. In this particular situation, she was first assaulted by the stranger when he purposely bumped into her. Then she was held against her will when he prevented her from continuing her walk home. Feeling the late hour would work against her if she needed help, she decided to defend herself. Liza should not be guilty of PC 417 even though she waved a weapon, she only did so when she felt her safety was in jeopardy.

False Allegations

Unfortunately, false accusations can happen between people out of anger, jealousy, or revenge. It also happens over simple misunderstandings and can quickly spiral out of control.

Simon, for instance, was yelling at his girlfriend, Trina. He was loud enough to catch the neighbors’ attention. Instead of yelling back, she picked up his XBox360 and threw it at the bedroom door. Then, she broke his collection of shot glasses in the kitchen. Simon picked up her favorite glass vase and held it above his head. He warned her to stop breaking his things or he would do the same to her stuff.

The neighbor went to investigate and saw Simon through the living room window. He called the police and reported the boyfriend for brandishing a dangerous weapon. This accusation was made without really knowing the full story. The neighbor based the allegations on what he saw but he did not hear what was going on.

Trina locked herself in the bedroom while a police officer arrested Simon. They ignored his explanation after seeing the damage done to the things in the house. They charged him with PC 417. Luckily, with the help of his criminal defense lawyer, they were able to get the full story of what happened from Trina. When it matched Simon’s explanation of the events the charges were dropped.

Penalties for Brandishing A Weapon Or Firearm, PC 417

Most PC 417 charges result in misdemeanor consequences. However, if the weapon was brandished on the grounds of a day-care while it is operating or in the presence of a peace officer who is conducting their official duties, you could face either a misdemeanor or felony penalties.

If convicted as a misdemeanor you face;

As long as one year in county jail.

With a felony conviction, you face;

A potential sentence of three years in California state prison.

Enhanced Penalties

If someone was injured as a result of brandishing a weapon or firearm, you face penalties under PC 417.6, brandishing a firearm and inflicting serious bodily injury. As a wobbler, you face:

Misdemeanor;

Summary (informal) probation, and/or

Up to one year in county jail.

Felony;

Felony (formal) probation, and/or

Up to three years in state prison.

A conviction for brandishing a weapon or firearm will also negatively impact someone’s immigration status. This includes possible deportation and denial of re-entry into the United States.

These penalties do not include any legal consequences a defendant might face from the other parties involved. Alleged victims, for instance, could sue for punitive damages. This means the defendant would also face further financial repercussions. This might include paying the legal fees for the alleged victim as well as any medical or counseling bills, or the loss of wages. 

Penalties for Closely-Related Offenses

There is a possibility that someone could face multiple penalties if convicted of more than one offense. This means fines and incarceration times will be compounded. It’s important to remember if facing jail or prison time for more than one offense, the sentencing will be served consecutively.

California Penal Code 21310 - carrying a concealed dirk or dagger;

Misdemeanor;

Summary probation,

As long as one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Formal probation,

As long as three years in county jail, and/or

As much as ten thousand dollars in fines.

California Penal Code 25400 - carrying a concealed weapon;

Misdemeanor;

Summary probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal probation for up to one year, or

16 months, 2, or 3 years in county jail; and/or

As much as ten thousand dollars in fines. 

California Penal Code 245(a)(1) - assault with a deadly weapon;

Misdemeanor;

Informal probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal probation,

Up to four years in state prison, and/or

As much as ten thousand dollars in fines.

Calfornia Penal Code 245(a)(2) - assault with a firearm;

Misdemeanor;

Summary probation,

Minimum of six months to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal probation,

2, 3, or 4 years in state prison, and/or

As much as ten thousand dollars in fines.

California Penal Code 217.1 - an assault on a public official;

Misdemeanor;

Informal (summary) probation,

As long as one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal probation,

16 months, 2 or 3 years in county jail, and/or

As much as ten thousand dollars in fines.

Call Our Criminal Lawyer For Help

Are you or someone you love facing charges for brandishing a weapon or firearm? Maybe you or your loved one face a similar offense mentioned above? If so and you are located in San Diego, Los Angeles, or Orange County contact the Law Offices of Anna R. Yum.

Attorney Yum is an award-winning criminal defense lawyer who comes highly recommended. She understands how devastating maximum penalties can be and will aggressively fight for your rights.

If you need legal help call us for a no-obligation, free-consultation at 619-233-4433 or use our online contact form.

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