Charges are serious no matter what the crime. Weapons charges like brandishing a firearm can mean jail time, fines and long term consequences to your record. Some crimes are punished more severely in California and crimes involving guns will often result in harsher sentencing and a conviction can mean a criminal record that affects future employment, housing and firearm ownership rights. If you’ve been charged with brandishing a firearm you’ll want to be prepared for your upcoming court date. Educating yourself on the California laws that apply to your alleged crime is a great first step in being ready for your hearing.

What is Firearm Brandishing

Firearm brandishing is a serious crime in California and is defined under California Penal Code Section 417. This law makes it illegal to draw or exhibit a firearm in a rude, angry or threatening manner or to use a firearm in any fight or quarrel, except in cases of self defense. The prosecution must prove beyond a reasonable doubt that the defendant displayed the firearm in a way that a reasonable person would perceive as threatening. Brandishing a firearm does not mean the weapon had to be fired – simply showing a firearm in a threatening manner can be enough to get you charged. Conviction under this code section can mean jail time, fines and a permanent mark on your record so you need to understand the seriousness of the allegations and the importance of a good defense.

What is California PC417(a)(2)

California Penal Code Statute 417(a)(2) defines the elements of brandishing a firearm. What is brandishing? When you are accused of brandishing it means you drew or exhibited a firearm in a rude, angry or threatening manner, except in cases of self defense. The elements of the crime include the presence of a firearm, a threatening manner and the absence of self defense. This can be as simple as lifting your shirt to show a gun in the waistband of your pants to intimidate or threaten someone. The law also covers other firearms and potentially dangerous weapons including any deadly weapon not just traditional guns.You must prove beyond a reasonable doubt that you brandished a firearm. The type of firearm and the circumstances of the offense can make a big difference in the charges. The law applies to any firearm that can be concealed as well as other firearms and potentially dangerous weapons. For example brandishing a loaded firearm is a more serious offense than brandishing an unloaded firearm with penalties ranging from misdemeanor to felony charges. A misdemeanor conviction can mean up to one year in county jail while a felony conviction can mean state prison time.

Brandishing a firearm is typically charged as a misdemeanor or misdemeanor crime but certain circumstances – like brandishing in a threatening manner in a public place like a street within an incorporated city – can bump the charge up to a felony crime or felony offense and more severe legal consequences.

What is a Firearm in California?

Any weapon that expels a projectile through a barrel by using an explosive force or combustion is a firearm by California law. This includes rifles, revolvers, handguns, shotguns, pistols, rocket launchers and machine guns. California law also includes the receiver or frame of a gun in its definition of a firearm so even unassembled parts can be considered a firearm.

The California safety code has additional regulations and restrictions on the possession and use of firearms. Certain exceptions apply when a firearm is possessed by a person designated by law such as law enforcement officers or authorized security personnel. Special rules also apply to firearms at facilities where programs are conducted by a nonprofit organization or recreational programs for minors and stricter regulations and penalties for violations in those settings.

Brandishing a Deadly Weapon

Brandishing a deadly weapon whether it’s a firearm, a knife, a baseball bat or any object capable of causing death or great bodily injury is also prohibited under California law. A deadly weapon is any item that can be used to inflict serious harm or death even if it’s not inherently deadly. If you are accused of brandishing a deadly weapon in a threatening manner or using it during a fight or quarrel you could be charged. Depending on the circumstances this can be a misdemeanor or a felony with penalties of up to 30 days in county jail. The severity of the charge often depends on the type of weapon involved and the circumstances in which it was brandished. California takes these offenses seriously because they pose a significant risk of bodily injury to others.

Bodily Injury and Brandishing

When brandishing a weapon or firearm results in bodily injury the consequences become more severe. If the victim suffers great bodily injury or serious bodily injury as a result of the threatening behavior the offense can be elevated to a felony with the possibility of a state prison sentence. In these cases the prosecution must prove that the defendant brandished the weapon or firearm in a threatening manner and that this conduct directly caused significant injury to another person. A skilled defense attorney can challenge the prosecution’s case by arguing the defendant’s actions were not threatening or that the injury sustained was not as serious as claimed. The distinction between minor and significant injury can be critical in determining the outcome of the case and the severity of the penalties.

Criminal Threats and Brandishing

Criminal threats as outlined in California Penal Code Section 422 are closely related to brandishing a weapon or firearm. If someone threatens to injure or kill another person and does so in a way that causes the victim to reasonably fear for their safety this can be charged as a criminal threat. Brandishing a weapon or firearm can be evidence that a threat was made in a credible and intimidating manner and can lead to additional charges and more severe penalties. In these situations a defense attorney may argue the alleged threat was not credible the defendant did not intend to cause fear or the circumstances do not meet the legal definition of a criminal threat. Understanding the connection between criminal threats and brandishing is key for anyone facing these serious criminal charges.

Brandishing Defenses

California Penal Code 417(a)(2) carries serious penalties but there are a few ways your criminal defense attorney can defend you. A strong defense is key when facing weapon charges or a weapons charge since a conviction can mean time in county jail and the consequences are severe.

There are also other related offenses and crimes related to brandishing that can be challenged in court as part of your defense strategy.

If your defense is successful you may be able to have the offense expunged from your criminal record removing many of the penalties and disabilities associated with a conviction.

Self-Defense

If you can show you acted in self-defense when faced with imminent harm the charge of brandishing will not apply. California law does not include self-defense in the definition of brandishing a firearm. Self-defense requires a reasonable belief of imminent harm and that brandishing was your only option.

Non-Threatening

One element of brandishing is the threat to cause bodily injury. Showing you were not threatening can be a strong defense. For example if you were just taking out your gun to show it to your friend that would not be brandishing.

Lack of Intent or Mistaken Identity

Other defenses such as lack of intent or mistaken identity can also be used to challenge brandishing charges. Challenging the prosecution’s evidence and witnesses can be a strong defense strategy if the circumstances support it.

When is Brandishing Self-Defense?

As one of the most common defenses to brandishing charges self-defense has many elements that must be proven to be a valid defense. First you must have had a reasonable belief that an imminent threat or harm would occur. Second you must have reasonably believed that brandishing was your only option. Third brandishing must be deemed reasonable use of force. In other words you can only use as much force as is necessary to stop the threat you face.

Brandishing Charges and Penalties

Code 417 includes firearms and any deadly weapon whatsoever. If you are found guilty of brandishing a firearm you could face up to 1 year in county jail and a $1,000 fine. The penalty can be a fine of one thousand dollars or both that fine and jail time. A violation occurs when a firearm or deadly weapon is brandished in a public place or in the presence of a law enforcement officer performing his or her duties. You may also face up to 5 years of probation and lose your right to own a gun. Convicted felons are prohibited from possessing firearms and may face additional penalties if found guilty of brandishing.

Most California brandishing charges are misdemeanors but some aggravating circumstances can make the charge a felony. For example brandishing a firearm in the immediate presence of a peace officer pursuant to their official duties and when the officer’s uniformed appearance makes their status clear can result in more severe penalties. Brandishing a weapon in the presence of a law enforcement officer or peace officer can result in a state prison sentence in California state prison. Brandishing at a daycare center can also be charged as a felony with a penalty of 3 years in state prison. Causing serious bodily injury, great bodily injury or intentionally injuring another person while brandishing can elevate the charge and result in harsher penalties.

In some cases brandishing is not the only crime you can be charged with. You may also be charged with assault with a deadly weapon, carrying a concealed firearm or criminal threats. Any of these additional allegations can bring more severe penalties if you’re convicted. A conviction can also have immigration consequences including deportation for non-citizens.

Contact a Lawyer

Carrying the weight of a criminal conviction for the rest of your life is not easy for anyone. A brandishing conviction can have long term consequences including loss of employment opportunities and restricted firearm ownership rights. Finding an attorney who will be invested in your case and dedicated to providing the highest quality defense is key to getting the best result possible. Contact the Law Office of Sheny Gutierrez at (714) 942-4036 for a free consultation.