9 Things You Should Know About Brandishing A Weapon

Penal Code Section 417

Merely taking out a revolver or knife or other weapon capable of inflicting great bodily injury or death to merely display or show off is not a crime so long as you did not do so in an angry or threatening way.

Definition Of Brandishing Or Drawing A Firearm Under Penal Code 417

Brandishing or drawing a firearm, or other deadly weapon, can be a serious offense under Penal Code Section 417 if the following elements of the crime are proved:

  1. You took out, exhibited or drew a firearm or other deadly weapon
  2. In the presence of another person
  3. And you did so in a rude, threatening or angry manner, or,
  4. You did so unlawfully while engaged in a fight or argument, and
  5. You were not in the act of self-defense or defending another person

What Constitutes a Deadly Weapon

A firearm is in its own category but other deadly weapons such as knives, swords or chainsaws are commonly associated with causing death or great bodily injury. The law also includes ordinary objects that can also inflict serious injuries if used with force on another person. This list includes but is not limited to the following:

  • Sharp pencil or pen
  • Pillow
  • Sharp scissors
  • Razor blades
  • Rock
  • Baseball bat
  • Broken glass
  • Attack dog

In fact, nearly any other household object could be considered a deadly weapon if used in a certain manner.

Your own body is not considered a deadly weapon under PC 417, though it is under Penal Code 245—Assault with a Deadly Weapon (ADW). To commit ADW, you must have intended to harm the victim though no harm need be inflicted. Also, the use of “other means of force likely to produce great bodily injury” found in PC 245 is not a part of PC 417.

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Great Bodily Injury

Although not an element of the crime, a deadly weapon must be one that has the capability of inflicting great bodily injury as defined in PC 12022.7, though again there is no requirement that any injury occur. A great bodily is a substantial one, though a hospital visit is not necessary. It includes:

  • Broken bones
  • Black, swollen eye
  • First and second degree burns
  • Contusions and swelling
  • Knife or gunshot wounds
  • Severe abrasions
  • Bruising as a result of strangulation

As you can see, many of these appear relatively minor. Whether an injury that was inflicted fits within the definition of great bodily harm can be an issue for negotiation.

What Constitutes A Firearm?

Firearms are any devices from which projectiles may be expelled or launched by the force of combustion or explosion. This excludes BB, pellet and air rifles that use air as the necessary force. We commonly think of the following devices as firearms:

  • Pistols
  • Revolvers
  • Rifles
  • Shotguns

An important component to this element is that the firearm need not be loaded.

In the Presence of Another Person

The only requirement needed to prove this element of PC 417 is that some other person was in close proximity to you when you pulled out the weapon. The DA need not prove that you pointed the firearm or other deadly weapon at someone or that you fired the gun. In fact, the other person need not have even seen the firearm or weapon, curious as that may appear.

Rude, Angry or Threatening Manner

If you brandish, wave around, point at or just display your firearm or deadly weapon in an angry, threatening, rude or offensive manner, you have satisfied this element. Your intent may have been to merely frighten another person and not to physically harm them but this is irrelevant. Because so many tragic events occur from the use of weapons, this law is designed to discourage anyone from quarreling or threatening another person with a weapon capable of causing serious injury or death.

Legal Defenses

As with any criminal offense, there are defenses depending on the circumstances of your particular case:

  • You acted in self-defense

You will have to prove the elements of self-defense to be exonerated of brandishing a weapon or firearm in violation of PC 417, which includes:

  1. You reasonably believed you or another person were in imminent danger of physical harm
  2. And you fought the person who threatened you with only enough force to subdue that person or otherwise defend yourself

If you used more force than necessary, you lose the defense and also face potential assault charges.

  • The weapon or firearm was not displayed in an angry, threatening or rude manner

If you can show that the victim misinterpreted your display of the weapon or that you drew or brandished it to just show it off, to educate someone or were mimicking someone, then this element is lacking.

Penalties For Brandishing a Weapon

The penalties under PC 417 vary depending on the circumstances which you brandished or drew a weapon such as whether it was a firearm or a deadly weapon or if it was done in the presence of a law enforcement officer, at a day care center or in a public place.

PC 417 is also a “wobbler” offense so that the DA has the discretion to charge you with either a misdemeanor or a felony.

PC 417 as Misdemeanor 

You face misdemeanor charges only and the following sentencing if your commit this offense under these circumstances:

  • You brandished a deadly weapon in an angry, rude or threatening manner while engaged in a fight—mandatory minimum jail sentence of 30 days
  • You brandished a firearm in an angry, rude or threatening manner while engaged in a fight—3 to 6 months in county jail
  • You brandished a firearm in a public place with a firearm capable of being concealed on you—mandatory minimum jail sentence of 3 months and up to one year and a fine up to $1000

As a felony, you face 16 months, 2 or 3 years in state prison along with probable conviction of PC 626.9, the Gun-Free School Zone Act.

PC 417 as Wobbler

The following circumstances are violations of PC 417 but qualify as wobbler offenses and can be charged as either a misdemeanor or felony:

  • You brandish a firearm on the grounds of a day care center during its operation and in a rude, angry or threatening manner or while during a fight

As a misdemeanor, you face a mandatory minimum jail sentence of 3 months and up to one year in county jail.

As a felony, you face 16 months, 2 or 3 years in state prison along with probable conviction of PC 626.9, the Gun-Free School Zone Act.

  • You brandish a firearm in a rude, angry or threatening manner in the immediate presence of a peace officer engaged in official duties, or whom you know or should know was so engaged:

As a misdemeanor, there is a mandatory minimum jail sentence of 9 months and up to one year in county jail.

As felony, you face 16 months, 2 or 3 years in state prison.

Any felony conviction results in the loss of your right to possess, use or own any firearms.

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Record Expungement For Brandishing A Weapon

PC 417 is charged only as a misdemeanor under particular circumstances but also as a “wobbler” offense for other situations. If your conviction was a misdemeanor, you qualify for an expungement of your record under PC 1203.4. An expungement does not totally erase your record though any members of the general public including private employers, landlords or anyone else not associated with the government will see that you have no criminal conviction when a criminal background check is performed.

You should also expunge a misdemeanor conviction under PC 417. Although a  misdemeanor conviction does not take away any of your civil rights, employers and landlords may still hold it as a negative factor in determining whether you get hired, promoted or agree to have you lease an apartment.

Felony convictions may be expunged provided that you did not serve any time in state prison. If you were convicted of a felony as a wobbler offense, you can petition the court to reduce your felony to a misdemeanor under PC 17(b)(3) once you meet these other conditions:

  • Complete all terms and conditions of your probation
  • Have no felony criminal charges pending
  • You did not violate any terms of your probation

  • Find Out if You Are Eligible To Have Your Record Expunged
  • Stop Worrying About Employer Background Checks
  • Start Worrying About Landlord Background Checks

A probation violation is not a disqualifying factor so long as it was not for committing another criminal act or was a minor offense. Most violations are for failing to pass a random drug test.

As noted above, an expungement does not destroy your court records and it does remain on the FBI and other databases.

An expungement does have the following effect:

  • You can state with no fear of committing perjury that you have never been convicted of a felony
  • You can state on an employment and rental application that you have no felony or misdemeanor convictions
  • It may have a positive effect on your immigration status if you are not a US citizen and are seeking permanent residency
  • You can apply for a state license such as for real estate or contractor’s license—you will likely receive one as an expungement is a condition for these boards or agencies to consider your application

But you are still required to disclose your felony conviction and expungement when:

  • Applying for public employment
  • Running for public office
  • Applying for a license to work with the State Lottery Commission
  • Volunteering for the military
  • Applying for a law enforcement position along with disclosing the misdemeanor conviction though it is not a disqualifying factor—a felony even if expunged is not acceptable
  • It may have a positive effect on your immigration status if you are not a US citizen and are seeking permanent residency
  • You can apply for a state license such as for real estate or contractor’s license—you will likely receive one as an expungement is a condition for these boards or agencies to consider your application

You can apply for expungement the day after your probation ends. There is an exception in cases where no probation was imposed so that you must wait one year from the date of your conviction.

Related Offenses

There are some offenses related to brandishing a weapon or firearm or which are charged along with this offense:

Assault with a Deadly Weapon (ADW)—PC 245

You commit an assault if you use a firearm or deadly weapon or any other force likely to cause great bodily injury and have the present capability or means of inflicting a violent injury or felony on another person.

Under PC 245, your body is considered a deadly weapon under certain circumstances such as continuing to punch or kick someone long after they are incapable of fighting back. Like the crime of brandishing, there is no requirement that use the weapon, that victim observe it or that you inflict any harm. Your intent to harm someone distinguishes this crime from PC 417.

For example, telling someone that you have a gun under your jacket and that you will shoot them is ADW since the gun was not drawn at all.

If you aim it at someone and it is unloaded, you lack the present capability of inflicting a violent felony or injury but you may have committed the crime of brandishing. If it was loaded, then you may have committed ADW and brandishing a weapon.

Criminal Threats—PC 422

If you threaten someone with harm regardless if you have the capability of carrying it out is a crime under Penal Code 422. The conveyed threat must be specific and unequivocal and produce fear in the victims for their safety or that of their immediate family. The victim must have had a reasonable fear of harm and did experience it. You communicate the threat by verbal, writing or electronic means.

In the context of PC 417, you can be charged with brandishing if you meant to only scare the victim by drawing a gun and be charged with both offenses if you also stated that you would shoot or harm the victim.

Gun-Free School Zone Act—PC 626.9

This law bans the possessing or discharging of a firearm in a school zone, or within 1000 feet of a public or private school grounds, if done with reckless disregard for the safety of any other person. There are exceptions to possessing firearms under particular conditions. Otherwise, if you are convicted of possession of a firearm, it is a felony with 2 to 5 years in state prison and if the weapon was discharged, you face incarceration for 3, 5 or 7 years in state prison. It can be a misdemeanor charge but a conviction will nonetheless result in loss of your gun rights.

A conviction under PC 626.9 is also a deportable crime.

Immigration Consequences

Under certain circumstances, possession of certain firearms is a deportable offense for defendants who are not US citizens. If you even possessed any of these weapons and used them in violation of California Penal Code 417, you face serious immigration consequences.  Such weapons include:

  • Ballistic knife
  • Belt buckle knife
  • Bullets containing an explosive agent
  • Cane gun or sword
  • Short barreled shotgun
  • Zip gun
  • Other weapons listed under PC 16590

Under PC 417.3, brandishing a weapon in the presence of the occupant of a motor vehicle is considered a crime of violence under 18 USC 16(a) and an aggravated felony, exposing the alien to deportation proceedings.

If you are convicted under PC 417 as a misdemeanor, you do not face deportation. However, any sentence of more than one year for a violent felony is an aggravated felony and you face removal. If the conviction was for brandishing a weapon other than a firearm, it is not an automatically deportable offense.

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