Brandishing Laws (PC 417) in California

I. California Penal Code 417: Brandishing

Legal Definition: Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor. 

For a person to be convicted of a violation of PC 417(a)(1)/PC 417(a)(2)(B), the prosecution must prove the following:

1. You drew or exhibited a firearm/deadly weapon in the presence of someone else;

AND

2. You did so in a rude, angry, or threatening manner;

AND

3. You did not act in self-defense/in defense of someone else.

II. What does this mean?

A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. The firearm need not be loaded under this section to be convicted. A deadly weapon is 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. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

A public place is a place that is open and accessible to anyone who wishes to go there. The most common brandishing criminal charge is PC 417(a)(2)(A), which is brandishing a concealed firearm in a public place.

III. Penalties

Brandishing is a wobbler offense, meaning it can be charged as a misdemeanor or as a felony, depending on the specific section you are charged with, as well as your criminal history.

1. PC 417(a)(1) brandishing a deadly weapon in a fight is a misdemeanor offense, where you could be sentenced to upwards of 180 days in a County Jail. You would be required to serve 50% of that sentence.
2. PC 417(a)(2)(A) brandishing a concealed firearm in a public place [Misdemeanor up to a 1 year in jail];
3. PC 417(a)(2)(B) brandishing firearm [Misdemeanor up to 180 days in jail];
4. PC 417(b) brandishing a loaded firearm in a daycare [Felony up to 3 years in prison];
5. PC 417(c) brandishing a firearm at police [Misdemeanor up to 1 year in county jail or Felony up to 3 years in prison];
6. PC 417.3 brandishing a firearm at a person in a motor vehicle [Felony up to 3 years in state prison];
7. PC 417.4 brandishing imitation firearm in a threatening manner [Misdemeanor up to 180 days in jail];
8. PC 417.6 brandishing deadly weapon causing serious bodily injury [Misdemeanor up to 1 year in county jail or Felony up to 3 years in state prison];
9. PC 417.8 brandishing a weapon at an officer while resisting arrest [Felony up to 4 years in prison].

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of your Rights
4. Mistake of Fact

These charges are extremely factually specific. Sometimes people can be over-dramatic, can misunderstand, or take your words the wrong way. Then you, thinking they may have misunderstood, try to call them back, or contact them again to correct whatever confusion exists, and end up making things worse, call after call.

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