Brandishing a Weapon
(PC 417 Crimes)
Information on the crime of brandishing a deadly weapon is found at California penal code section 417. There are several variations of brandishing crimes.
For example, brandishing a deadly weapon is charged as PC 417(a), whereas brandishing a firearm is charged as PC 417(a)(2)(B). We have provided the law, sentence, and defense associated with most brandishing crimes.
PC 417 Legal Definitions
Brandish defined: to draw or exhibit, a deadly weapon, in the presence of another person, in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses a deadly weapon, in a fight or quarrel.' (PC 417 Abbreviated)
Weapon defined: any object, instrument, or weapon that is inherently deadly or dangerous, 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 includes a knife, a baseball bat, tools, and more.
Firearm defined: any device designed to be used a weapon, from which a projectile is discharged or expelled through a barrel by force of an explosion or other form of combustion. A firearm includes: shotguns, handguns, rifles, pistols, zip guns, exploding darts, and more.
As stated, there are several different brandishing crimes that may be charged against the defendant depending on the set of facts particular to the case. Each brandishing crime will require slightly different or additional evidence in order for the district attorney to prove the crime.
Probably the most common brandishing criminal charge is found at California penal code section 417(a)(2)(A), which is brandishing a concealed firearm in a public place. To be found guilty of the crime of brandishing a concealed firearm in a public place, the district attorney must prove:
The defendant drew or exhibited a firearm in the presence of another person, and
When the defendant drew or exhibited the firearm the defendant did so in a rude, angry, or threatening way, and
The defendant did not act in self-defense or defense of another person, and
At the time of drawing or exhibiting a firearm, the defendant was in a public place (public place defined below), and
The defendant was not involved in law enforcement.
Public place defined: A public place, for purposes of brandishing crimes, means a place open to the public, such as a street, parking lot, park, restaurant, etc., either in an incorporated, or unincorporated city (PC 417(f).
PC 417 Sentences
The maximum penalties for brandishing a firearm or deadly weapon depends on the exact criminal charge that is filed against the defendant.
PC 417(a)(1): brandishing a deadly weapon in a fight [Misdemeanor up to 180 days in jail]
PC 417(a)(1): brandishing a deadly weapon to a person cleaning graffiti [Misdemeanor up to 180 days in jail]
PC 417(a)(2)(A): brandishing a concealed firearm in public place [Misdemeanor up to a 1 year in jail]
PC 417(a)(2)(B) brandishing a firearm [Misdemeanor up to 180 days in jail]
PC 417(b): brandishing loaded firearm in a daycare [Felony up to 3 years CA prison]
PC 417(c) brandishing firearm at police [Misdemeanor up to 1 year in county jail or Felony up to 3 years CA prison]
PC 417.3: brandishing a firearm at a person in a motor vehicle [Felony up to 3 years in CA prison]
PC 417.4: brandishing imitation firearm in a threatening manner [Misdemeanor up to 180 days in jail]
PC 417.6: brandishing deadly weapon causing serious bodily injury [Misdemeanor up to 1 year in county jail or Felony up to 3 years CA prison]
PC 417.8: brandishing a weapon at officer while resisting arrest [Felony up to 4 years in prison]
Probation Sentence: A probation sentence is period of supervision in lieu of jail or prison. Probation sentences carry terms of probation that must be followed in order to avoid actual jail or prison. Probation sentences are available in PC 417 cases but they are not guaranteed. Whether or not a probation sentence is available depends largely on the facts of the case and the defendant's criminal history. In some cases, where the defendant is ordered to serve some jail sentence as part of a probation sentence, that jail sentence may be alternatively served on work release or house arrest (as opposed to actual in custody jail).
Note: For felony brandishing crimes a probation sentence, a split prison sentence, or a suspended prison sentence (aka joint suspended sentence) is available in some cases.
Crime of Moral Turpitude: A crime involving moral turpitude is a crime that is considered morally wrong. Crimes of moral turpitude carry special negative consequences for licensed professionals and immigrants. Brandishing crimes are not generally considered crimes of moral turpitude, but felony brandishing crimes may carry immigration consequences nevertheless.
Three Strikes Sentencing: The crimes of brandishing a loaded firearm in a fight or in a daycare (PC 417(b)), and brandishing a firearm at police officers (PC 417(c)) are considered strike offenses under California's Three Strikes Law.
In addition to any possible jail or prison time associated with a conviction for brandishing a firearm or deadly weapon, the defendant may also face very restrictive probation or parole terms, loss of the right to use or possess a firearm, monetary fines, restitution, loss of professional license or occupational license, immigration consequences, adverse family law consequences, restraining orders, and more.
Defenses to PC 417
Common defenses to a charge of brandishing a deadly weapon or firearm include: insufficient evidence, statute of limitations, defense of others, intoxication, alibi, defense of others, coerced confessions, illegal search and seizure, and more.
Note: It is not a defense to a PC 417 brandishing charge to argue that a firearm was not loaded.
If you or a loved one is charged with brandishing a firearm, or brandishing a deadly weapon, under California penal code section 417, contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys have defended hundreds of felony and misdemeanor crimes, including brandishing crimes charged under PC 417. Call today!
Quick Reference Sheet
Crime: Brandishing a Firearm
Code: PC 417(a)(2)(B) (CalCrim No. 982 & 983)
Wobbler: No. PC 417(a)(2)(B) is not a wobbler. This means that PC 417(a)(2)(B) is always charged as a misdemeanor.
Incarceration: PC 417(a)(2)(B) jail sentence up to 180 days.
Probation: Probation may be available in PC 417(a)(2)(B) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
Strike: PC 417(a)(2)(B) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 417(a)(2)(B) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 417(a)(2)(B) convictions prohibit a defendant from owning or possessing a firearm for 10 years.
Bail: $25,000 (San Bernardino County)
Criminal Defense Lawyers
Criminal Defense Lawyers
Criminal Defense Lawyers
San Bernardino County
Se Habla Español