what does it mean to brandish a gun

In this guide, I volition explain nine (nine) things you should know about brandishing a firearm or weapon.

Brandishing a firearm or weapon is a law-breaking which is prosecuted under penal code 417.

However, merely taking out a weapon to brandish or show off is not a crime then long as you did not do so in an angry or threatening fashion.

Let's get started…

In This Guide We'll Cover:

Definition Of Brandishing Or Drawing A Firearm Under Penal Lawmaking 417

Brandishing or drawing a firearm, or other deadly weapon, tin be a serious offense nether Penal Code Department 417 if the following 4 elements of the criminal offence are proved:

You lot took out, exhibited or drew a firearm, or other deadly weapon.
In the presence of some other person.
And you did so in a rude, threatening or angry manner, or, you did so unlawfully while engaged in a fight or argument.
You were not acting in self-defence force or defending another person.

Let's examine these elements in greater detail to empathise how they are practical.

#one

Y'all took out, exhibited or drew a firearmⁱ or other mortiferous weapon².

The first office if this chemical element is a firearm.

What Is Considered A Firearm Under The Law?

Firearms are any devices from which projectiles may be expelled or launched by the force of combustion or explosion such equally pistols or shotguns.

Nonetheless, this excludes BB, pellet and air rifles that use air equally the necessary force.

What is Considered A Deadly Weapon?

In addition to firearms, mortiferous weapons tin include:

Knives,
Swords. or
Chainsaws which may cause expiry or slap-up bodily injury.

The law also includes ordinary objects that tin also inflict serious injuries if used with force on some other person such equally sharp pencils or rocks.

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

Are Fists Considered A Deadly Weapon?

Your own body is non considered a deadly weapon under PC 417, though it is under Penal Lawmaking 245—Assault with a Mortiferous Weapon (ADW).

Smashing Bodily Injury

Although not an element of the offense, a deadly weapon must exist one that has the capability of inflicting great bodily injury every bit defined in PC 12022.7, though once again there is no requirement that whatever injury occur.

A great actual injury is a substantial 1, though a infirmary visit is non necessary.

It includes:

Cleaved bones
Black, swollen centre
First and 2d degree burns
Contusions and swelling
Knife or gunshot wounds

Severe abrasions
Bruising as a event of strangulation

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

#ii

In the presence of another person

The Other Person Does Not Need To Know The Weapon is Out

An of import component to this chemical element is that the firearm need non be loaded.

The only requirement needed to prove this element of PC 417 is that some other person was in close proximity to you when you lot pulled out the weapon.

The DA need not evidence that you pointed the firearm or other mortiferous weapon at someone³ or that you fired the gun. In fact, the other person demand non have even seen the firearm or weapon.⁴.

#3

And you did and so in a rude, threatening or angry style, or, you did and then unlawfully while engaged in a fight or argument

Rude, Angry or Threatening Manner

If you lot brandish, moving ridge around, bespeak at or but 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 non to physically impairment them but this is irrelevant.

The law is designed to discourage anyone from quarreling or threatening another person with a weapon capable of causing serious injury or death.

#4

You were not interim in self-defense or defending some other person.

Legal Defenses

Every bit with any criminal criminal offence, at that place are defenses depending on the circumstances of your particular case:

Self Defense

You will take to prove the elements of cocky-defense to exist exonerated of brandishing a weapon or firearm in violation of PC 417, which includes:

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

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

The weapon or firearm was non displayed in an angry, threatening or rude manner

If yous can show that the victim misinterpreted your display of the weapon or that you lot drew or brandished information technology to but testify it off, to educate someone or were mimicking someone, and then this chemical element is lacking.

Penalties For Brandishing a Weapon

The penalties under PC 417 vary depending on the circumstances in which you lot brandished or drew a weapon such every bit whether it was a firearm or a deadly weapon or if information technology was done in the presence of a police enforcement officer, at a daycare center, or in a public place.

Penal Code 417 is as well a "wobbler" law-breaking so that the DA has the discretion to charge y'all with either a misdemeanor or a felony.

Misdemeanor

You confront misdemeanor charges merely and the following sentencing if y'all commit this criminal offence nether these circumstances:

Yous brandished a deadly weapon in an aroused, rude or threatening style while engaged in a fight—mandatory minimum jail sentence of xxx days.
You brandished a firearm in an angry, rude or threatening way 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 curtained on you—mandatory minimum jail judgement of 3 months and up to one year and a fine up to $thousand.

Grounds Of A Day Care Eye

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

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

As a misdemeanor, y'all face a mandatory minimum jail sentence of 3 months and upward to 1 year in county jail.

As a felony, you face 16 months, ii or three years in state prison along with probable confidence of PC 626.ix, the Gun-Gratis School Zone Act.

Presence of Police Officeholder

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

Every bit a misdemeanor, in that location is a mandatory minimum jail judgement of 9 months and up to one twelvemonth in county jail.

Equally felony, you face 16 months, two or 3 years in country prison house.

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

Record Expungement For Brandishing A Weapon

PC 417 is charged only every bit a misdemeanor under particular circumstances but also every bit a "wobbler" offense for other situations.

If your confidence was a misdemeanor, you qualify for an expungement of your record under PC 1203.four.

An expungement does not totally erase your record though any members of the general public including individual employers, landlords or anyone else not associated with the authorities will see that you have no criminal conviction when a criminal background check is performed.

Felony Expungement

Felony convictions may be expunged provided that you lot did not serve any fourth dimension in country prison.

If you were convicted of a felony equally a wobbler law-breaking, you tin can petition the court to reduce your felony to a misdemeanor under PC 17(b)(iii) one time yous run across these other conditions:

Complete all terms and weather of your probation
Have no felony criminal charges awaiting
You did not violate whatever terms of your probation

Take A Free Expungement Eligibility Test

Find Out if You Are Eligible To Have Your Tape Expunged

A probation violation is non a disqualifying factor then long as information technology was not for committing another criminal act or was a minor offense.

Virtually violations are for failing to pass a random drug test.

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

Expungement Benefits

An expungement does take the following result:

You can state with no fearfulness of committing perjury that you have never been convicted of a felony
You tin land on an employment and rental application that you lot have no felony or misdemeanor convictions
Information technology may have a positive result on your immigration condition if you are not a US citizen and are seeking permanent residency
You can apply for a state license such as for existent estate or contractor's license—y'all will likely receive one as an expungement is a condition for these boards or agencies to consider your application

Disclosure Requirement

Only you are however 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 Committee
Volunteering for the military
Applying for a law enforcement position along with disclosing the misdemeanor confidence though information technology is not a disqualifying factor—a felony even if expunged is not acceptable
It may take a positive effect on your clearing status if you are not a US citizen and are seeking permanent residency
You tin use for a land license such every bit for existent estate or contractor'southward license—you lot volition probable receive one every bit an expungement is a status for these boards or agencies to consider your application

You can use for expungement the day afterwards your probation ends.

In that location is an exception in cases where no probation was imposed so that yous must wait one year from the date of your conviction.

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

Yous commit an assault if y'all 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 some other person.

Under PC 245, your trunk is considered a deadly weapon nether certain circumstances such as continuing to punch or kick someone long after they are incapable of fighting back. Like the offense of brandishing, in that location is no requirement that use the weapon, that victim find it or that you inflict whatever harm.

Your intent to harm someone distinguishes this crime from PC 417.

For instance, telling someone that you accept a gun nether your jacket and that yous will shoot them is ADW since the gun was non fatigued at all.

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

Criminal Threats—PC 422

If you threaten someone with harm regardless if you have the adequacy of carrying it out is a crime under Penal Code 422.

The conveyed threat must be specific and unequivocal and produce fearfulness in the victims for their safety or that of their firsthand family unit.

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 lot tin be charged with brandishing if you meant to only scare the victim by drawing a gun and exist charged with both offenses if you besides stated that you would shoot or harm the victim.

Gun-Gratis Schoolhouse Zone Act—PC 626.ix

This law bans the possessing or discharging of a firearm in a school zone, or inside m anxiety of a public or individual school grounds, if washed with reckless disregard for the safety of any other person.

There are exceptions to possessing firearms under particular atmospheric condition.

Otherwise, if you are convicted of possession of a firearm, it is a felony with 2 to 5 years in state prison house and if the weapon was discharged, yous face incarceration for three, 5 or 7 years in land prison.

It can be a misdemeanor accuse but a conviction volition withal effect in loss of your gun rights.

A conviction under PC 626.9 is also a deportable crime.

Immigration Consequences

Under certain circumstances, possession of sure firearms is a deportable criminal offence for defendants who are not US citizens.

If y'all even possessed whatever of these weapons and used them in violation of California Penal Lawmaking 417, you lot confront serious immigration consequences. Such weapons include:

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

Nether PC 417.3, brandishing a weapon in the presence of the occupant of a motor vehicle is considered a law-breaking of violence under 18 USC 16(a) and an aggravated felony, exposing the alien to displacement proceedings.

If y'all are bedevilled under PC 417 as a misdemeanor, you lot practice non confront deportation. Withal, any judgement of more than than 1 year for a violent felony is an aggravated felony and y'all face removal.

If the confidence was for brandishing a weapon other than a firearm, it is not an automatically deportable offense.

California Penal Code, § 16520. – Every bit used in this function, "firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile past the force of an explosion or other form of combustion. [↩]
Mortiferous Weapon Deﬁned. People v. Dark-brown (2012) 210 Cal.App.4th i, 6–8 [147 Cal.Rptr.3d 848]; People 5. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204] [↩]
Weapon Need Not Be Pointed Directly at Victim. People v. Sanders (1995) 11 Cal.fourth 475, 542 [46 Cal.Rptr.2d 751, 905 P.2d 420] [↩]
Victim'southward Awareness of Firearm Not a Required Chemical element. People five. McKinzie (1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891] [↩]

Ms. Aizman is the founding attorney at Aizman Law Business firm, an laurels winning criminal defense attorney & former prosecutor for the metropolis of Los Angeles. She regularly appears on CNN, Fox News, HLN & CBS News to provide legal insight on diverse legal topics. She is a proud member of the California Attorneys For Criminal Justice, California DUI Lawyers Clan & the National College of DUI Defense

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Source: https://aizmanlaw.com/penal-code-417-brandishing-a-firearm-or-weapon/