It is a crime under California law to exhibit or draw a deadly weapon in an angry or threatening manner toward another person. Brandishing a weapon laws are harsh in the sense that they do not require intent to harm, nor do they require that the victim view the weapon. If you are facing weapons charges, a skilled Riverside and San Bernardino County gun crime attorney can help you understand what your rights are, and what to expect during the legal process. At The Law Office of Gregory H.Comings, we help clients assert legal defenses to charges including brandishing or carrying a concealed weapon, and we are available to answer your questions.
California Penal Code section 417 makes it a crime to brandish a firearm or weapon in the presence of another. The elements of this crime are exhibiting or drawing a firearm or deadly weapon in a manner that is threatening, rude, or angry, or using the firearm in a fight and without acting in self defense. Courts have held that victims need not be aware of the firearm or weapon, nor does the weapon need to be pointed directly at the victim.
The term “brandish” in this context generally means to exhibit the weapon to another person in a rude way. In most cases, the prosecution must prove that there was a confrontation or an argument before the defendant displayed the weapon. The State of California must present evidence that the defendant brandished the weapon in a manner that a reasonable person would consider rude or angry. If other people were placed at risk, this may support a finding that a reasonable person would interpret the defendant’s actions as threatening. Unlike the crime of assault with a deadly weapon, the defendant need not have intended to harm the victim to be convicted under Penal Code section 417.
Punishment for brandishing a weapon depends upon the circumstances of the alleged crime. Factors such as the type of weapon used and the location of the offense affect the charge. As a wobbler offense, a crime charged under Penal Code section 417 may be either a misdemeanor or a felony. If the conviction includes brandishing a weapon that is not a firearm, then the prosecution will likely file the crime as a misdemeanor, carrying a minimum of 30 days in county jail.
Brandishing a firearm in a public place can be charged as a felony, and if the firearm is loaded it may lead to up to three years of imprisonment and a fine of $1000. If the defendant faces charges for brandishing their weapon at a daycare center, the Penal Code specifies that the prosecution may charge them with a felony. Threatening a police officer in an angry manner with a weapon can also be charged as a felony crime according to Penal Code section 417.
To successfully prosecute an individual under Penal Code section 417, the prosecution is required to set forth all elements of the crime beyond a reasonable doubt. A defense attorney can assess the circumstances surrounding the arrest and gather evidence that may rebut or refute the elements of the charges. For example, in some cases, the victim may have a particular sensitivity to firearms and weapons and the defendant may have been displaying their weapon in a manner that did not actually violate section 417. If all elements of the criminal charge for brandishing a weapon aren’t met, the prosecution will be unable to convict.
A self-defense argument may apply when a defendant faces charges for brandishing a weapon or firearm. If, at the time that a weapon was drawn, the defendant sensed an immediate threat to his physical safety, then the prosecution cannot charge the crime of brandishing a weapon. The self defense must be limited to preventing imminent bodily injury to oneself or another. Other legal defenses may apply, and will depend upon the specifics of the case.
If you are accused of brandishing a weapon in Riverside or San Bernardino County, a seasoned gun crime lawyer can help you effectively assert any potential defenses that may apply to reduce or dismiss your charges. Gregory H. Comings is available 24/7 and aggressively advocates to protect the rights of clients throughout Southern California, including the areas of Moreno Valley, Indio, Temecula, Palm Springs, Fontana, Highland, and Rancho Cucamonga. To speak with Attorney Comings, call our office at (951) 686-3457 or fill out our online form.