Table of Contents:
- What is brandishing a weapon?
- The details of Penal Code 417
- Punishments for violating Penal Code 417
- What about the Castle Doctrine?
- What about Stand Your Ground laws?
- Examples of brandishing a weapon
- Related offenses
- Record Expungement for brandishing a weapon
Welcome to EZ Record Clean’s California Law course. We designed this course to clear up any confusion around the California Legal System. In each article, we dive deep into each Penal Code, explaining all legal details in a clear, retainable way.
Today, I explain the law around brandishing a weapon. I leave out complex legal jargon, provide common examples, and list possible punishments. Let’s go.
What is brandishing a weapon?
The U.S. legal system calls revealing a weapon in a rude, angry, or threatening way various names. The legal term in California is brandishing a weapon. In other states, it is the “improper exhibit of a weapon,” “defensive display,” or “unlawful display.”
Regardless of terminology, the various circumstances known as “brandishing” can be very general. These generalizations leave you open to possible prosecution. If you reveal your weapon illegally, even if unintentional, you are brandishing.
Keep concealed weapons concealed until you are 100% sure you will use it for self-defense. This will prevent the possibility of prosecution for brandishing a weapon. Remember, a concealed firearm gives you the privilege to defend yourself. It does not grant you the ability to take the law into your own hands.
The details of Penal Code 417
Penal Code 417 is California’s state law regarding the brandishing of weapons. There are 5 main points to the code, which I highlight in layman’s terms below. But first, let’s go over some legal definitions:
- Brandishing – showing a weapon in a rude, angry, or threatening manner or in a fight.
- Deadly Weapon – anything that can kill or cause great bodily injury to another person.
- Great Bodily Injury – significant injuries, including broken bones, concussions, or extensive bleeding.
- Self-defense – legally using a deadly weapon with necessary force and the reasonable belief you or another person was in imminent harm
- Legal Presumption – a legal claim that must be proven true
The first section of PC 417 gives a general overview of what brandishing is. It states:
(a)(1) 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, punishable by imprisonment in a county jail for not less than 30 days.
Penal Code 417(a)(1) states that any person who brandishes a deadly weapon is in direct violation of the law. However, brandishing only applies when you intend to scare another person or the other person experiences fear. If there is no fear, it is not brandishing.
Brandishing also doesn’t include self-defense or the defense of another person. You can legally use a deadly weapon as long as you had reasonable belief you were in imminent danger. However, it is important to note the definition of self-defense above. It states, “with necessary force.” You must only use no more force than necessary to defend yourself. Otherwise, you can be convicted of a crime.
Additionally, merely displaying a weapon in a non-threatening way is not brandishing. If you are only showing your awesome new samurai sword to brag, you are safe.
Do keep in mind that you do not need to point the weapon at another person for it to be considered brandishing. In fact, the other person doesn’t even need to see the weapon for the crime to take place. As long as you use the weapon or the threat of a weapon to strike fear in someone else, you broke the law.
Punishments for violating Penal Code 417
Section (2) highlights the punishments you are prone to if convicted of brandishing a weapon.
(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:
1. If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
2. In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months
Violation of PC 417 could result in a misdemeanor or wobbler offense. A wobbler offense is any crime that can be charged as a misdemeanor or felony. The punishment depends on the judge’s decision, which is why you should hire an attorney in these circumstances.
Sentencing details for conviction of brandishing a weapon are highlighted below:
If charged with a misdemeanor, you can expect a minimum of 30 days in county jail. If you committed the crime during a fight, you will likely face 3-6 months. Did you threaten a concealed weapon in public? Your jail time could be up to 1 year with a $1,000 fine.
Informal probation1 is usually allowed; although, you’ll likely need to complete anger management classes and community service. You can also expect a criminal protective order (CPO)2 in favor of the victim for the period of the probation.
If you committed a wobbler offense, you can be charged with a misdemeanor or a felony. A felony will likely bring anger management classes and a criminal protective order, just like a misdemeanor. However, the CPO will last for the extent of form probation3 (up to 5 years).
Wobbler offenses can occur during two specific events:
(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.
The first event is brandishing a weapon on the grounds of a daycare center. This includes any programs for persons under the age of 18. A misdemeanor will result in 3 months to 1 year in jail while a felony can get you up to 3 years in state prison. If you were near a daycare, you also risk the probability of violating PC 626.9, the Gun-Free School Zone Act.
(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer’s uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years.
The second wobbler offense is brandishing a weapon in the direct presence of an on-duty peace officer. A misdemeanor will result in 9 months to 1 year in jail while a felony can get you up to 3 years in state prison. A felony will also result in the loss of your firearm rights.
*It is extremely difficult to regain your firearm rights once they have been taken away. This is only possible for “wobbler” felonies or by receiving a pardon from the California governor.
The last section goes into detail on punishments for situations involving graffiti:
(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.
As stated above, it is rare to be convicted of a felony when the victim was cleaning up graffiti or vandalism. The max punishment in this situation is typically a misdemeanor.
Although not directly stated, if you use a deadly weapon in violation of PC 417, you could face serious deportation consequences. If charged with a misdemeanor, you will likely not get deported. However, if charged with a felony, you face deportation proceedings.
The only exception is if the brandished weapon was not a firearm. In this case, you can still get deported but it is not as common.
*Deportation can be catastrophic for you and your family. Call one of our attorneys to see if it is possible to expunge your case, preventing possible deportation.
What about the Castle Doctrine?
The Castle Doctrine states there is no need to retreat if confronted by an intruder inside of your own home. This permits California residents to use force against an intruder. However, force is only legal when the intruder breaks into your home or tries to force their way in.
A legal presumption under PC 198.5 that you feared imminent death or great bodily harm might be applicable, if:
- The intruder illegally and forcefully entered or tried to enter your home
- You knew or reasonably believed the intruder was illegally entering your home
- The intruder was not a member of your household or family
- You used force intended or likely to cause death or great bodily harm to the intruder inside the home
In this case, the prosecutor must prove you didn’t have reasonable fear when asserting force. If they are successful, you could be charged with brandishing your weapon.
Although, as long as you had reasonable fear of imminent danger, you are safe. Even if you killed the intruder, it can be deemed as a justifiable homicide4.
What about Stand Your Ground laws?
Similarly, Stand Your Ground laws give you the right to self-defense with the reasonable belief of a threat. The threat is deemed “reasonable” if there is imminent danger, death, or great bodily harm.
Although not a state law statute, this is case law. Jury instructions recognize the right to use self-defense without first trying to escape. Even if you weren’t inside your home, you’re protected by this law.
If you are being convicted of brandishing a weapon, it is sometimes possible to prove you were “standing your ground.” This will prevent the possibility of a misdemeanor or felony. A professional attorney can help you argue this in court.
Examples of brandishing a weapon
If it comes to the point that you are unsure if you brandished a weapon or not, you probably did. Or at least you were close enough to be convicted. If you are facing a court case, it is wise to hire an attorney to help you prevent or minimize any punishments.
Common examples of brandishing a weapon include:
- Putting your hand on your holstered pistol during an argument or fight.
- Pulling your shirt back to reveal a holstered weapon in a threatening way.
- Unsheathing a knife or sword in a rude or angry manner.
It’s a good idea to have a brief understanding of the related offenses below. If you are charged for brandishing a weapon, you risk conviction of other offenses as well. Understand the following Penal Codes to know where you stand legally. This prevents you from being caught off guard by the prosecutor in court.
Assault with a Deadly Weapon (ADW) – PC 245
A PC 245 violation includes using a deadly weapon or other dangerous force on someone. Under this code, your body can be considered a deadly weapon. Although, this is only the case if you continued attacking while they were incapable of fighting back. The main difference between this code and PC 417 is your intent to do harm.
Criminal Threats – PC 422
If you have threatened someone with harm, regardless of your capability to carry out the threat, you are violating PC 422. This only includes using a specific, unequivocal threat that scares the victim. This can be through verbale, written, or electronic means.
Gun-Free School Zone Act – PC 626.9
PC 626.9 bans reckless possession or discharging of a firearm in school zone areas (within 1,000 ft. of school grounds). If convicted, this is usually a felony that comes with a 2-5 year prison sentence. If the weapon discharged, this could extend up to 7 years. This offense results in the loss of gun rights and is a deportable crime if convicted.
Record Expungement for brandishing a weapon
Having a criminal record will directly affect you and your family. If convicted of brandishing a weapon, contact our California expungement attorneys to clean your record.
If convicted of a misdemeanor, you likely qualify for an expungement under PC 1203.4. This does not completely erase your record but does remove it from the general public. This includes anyone not associated with the government (i.e. employers and landlords).
If convicted of a felony, your case might be a bit more complicated. You can likely get your record expunged as long as you didn’t serve time in state prison. If convicted as a wobbler offense, you can petition the court to reduce the felony to a misdemeanor under PC 17(b)(3).
- Informal Probation – a punishment method that avoids formal court intervention in which the defendant is supervised directly by the judge rather than a probation officer.
- Criminal Protective Order (CPO) – is a legal order made to protect a witness or victim of a crime.
- Formal Probation – a punishment method that includes a probation officer who will monitor progress.
- Justifiable Homicide – is killing without evil or criminal intent, often to protect oneself or another person.