Penal Code § 417 PC – Brandishing a Weapon or Firearm

Penal Code § 417 PC makes it a crime to brandish a firearm or a deadly weapon. Brandishing means to draw or exhibit the weapon in a threatening manner or to use it in a fight (other than in lawful self-defense).

The offense is generally prosecuted as a misdemeanor punishable by

• up to one year in jail and
• fines of up to $1000.00.

We will recite the full language of the statute, and then provide legal analysis below:

417. (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.

(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:

(A) 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.

(B) 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.

(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.

(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.

(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.

(e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(f) As used in this section, “public place” means any of the following:

(1) A public place in an incorporated city.

(2) A public street in an incorporated city.

(3) A public street in an unincorporated area.

Examples of brandishing

• Julie grabs a butcher knife and points it at her boyfriend.
• Jerome is in a fight with his neighbor and hits him in the head with the grip of his handgun.
• Eddie lifts his shirt to reveal the pistol in his waistband.

Defenses

A few common defenses to a brandishing weapons charge are that you:

• acted in self-defense,
• did not act in a threatening manner, and/or
• did not have a “deadly weapon” or firearm.

Penalties

A violation of this statute is typically charged as a misdemeanor (rather than a felony or an infraction). As a misdemeanor, the crime is punishable by imprisonment in county jail for up to one year.

More severe punishments for these weapon charges can include:

• felony charges, and/or
• imprisonment in the state prison.

As a violent firearm offense, a brandishing conviction may have negative:

• immigration consequences, and
• impacts on your gun rights.

If convicted of this offense, you are entitled to an expungement if you complete:

• probation (if imposed), or
• any jail time (if imposed).

Our California criminal defense attorneys will explain the following in this article:

• 1. What does it mean to brandish a firearm or weapon?
• 2. Are there legal defenses?
  • 2.1. Self-defense
  • 2.2. No threatening behavior
  • 2.3. No deadly weapon or firearm
• 3. What are the penalties for 417 PC?
• 4. Does this crime lead to deportation of noncitizens?
• 5. Can a conviction be expunged?
• 6. Does a conviction affect my gun rights?
• 7. Are there crimes related to the brandishing of a weapon?

1. What does it mean to brandish a firearm or weapon?

Penal Code 417 makes it a crime to brandish a weapon or firearm.¹

To prove a charge of brandishing a weapon in California, the prosecutor must establish that:

1. you drew or exhibited a deadly weapon or a firearm in the presence of someone else,
2. you did so in a rude, angry or threatening manner,
3. or you used the weapon or firearm in a fight or quarrel,
4. and you did not act in self-defense.²

A deadly weapon is any object or weapon that is inherently deadly. It is also one that can be used to cause death or great bodily injury.³

If you brandish a weapon and cause serious bodily injury, you can be charged with a more serious offense under Penal Code 417.6 PC. If you brandished an imitation firearm, you can be charged under Penal Code 417.4 PC.

Note that it is not necessary for a weapon to be pointed at someone for it to be “deadly.”⁴

Example: John is arguing with his girlfriend and grabs a hammer and a baseball bat. These objects are deadly weapons under the circumstances, no matter if he points them at his girlfriend or approaches her while waving them in the air.

As to cases involving an unloaded or loaded firearm, you can be guilty of a crime even if the alleged victim was not aware that you had a gun.⁵

Example: Jose angrily takes out his concealed carry gun and waves it at a drunken bar patron. While the patron may not have realized there was a gun (because intoxicated), Jose is still guilty of a crime.

2. Are there legal defenses?

You can raise a legal defense to try and beat a brandishing charge. In any case, the D.A. has the burden to prove guilt beyond a reasonable doubt.

Three common defenses are:

1. self-defense,
2. no threatening behavior, and/or
3. no deadly weapon or firearm.

2.1. Self-defense

You are innocent under this law if you were acting in justifiable self-defense or the defense of another person. You lawfully act in self-defense when you:

1. reasonably believe that you, or another person, are about to suffer imminent harm, and
2. you fight back with no more force than is reasonably necessary to defend against the danger.⁶

Example: It is appropriate self-defense when Carol points a broken bottle at Mark after he threatens to rape her. Here, the threat makes her believe that she is about to be harmed and the use of a broken bottle is not excessive force under the circumstances.

2.2. No threatening behavior

Recall that you are guilty under this statute only if you brandished a weapon or gun in a “rude, angry, or threatening” manner (as determined by the facts of the case). This means it is a defense to show that you did not act in such a way.

2.3. No deadly weapon or firearm

PC 417 only applies if you were armed with a “deadly weapon” or a firearm. Therefore, a defense is for you to show that you did not have one of these objects.

3. What are the penalties for 417 PC?

Most violations of this statute are charged as misdemeanors.⁷ The offense is punishable by imprisonment in the county jail for three months up to one year.

Brandishing a firearm capable of being concealed is also a misdemeanor if it occurs in a public place or on public property, carrying three months to one year in jail, and/or up to $1,000 in fines.⁸

Brandishing is a misdemeanor even if it occurs on school property. Though note that if you brandish a firearm on the grounds of a day-care center while it is open for use, this crime becomes a wobbler. This means you can be charged with either:

• a misdemeanor offense (a misdemeanor conviction is punishable by up to a one-year jail sentence), or
• a felony (a felony conviction is punishable by up to three years in California state prison).⁹

The same penalties apply if you brandish a firearm in the presence of a peace officer or police officer or other law enforcement officer who is engaged in their duties.¹⁰

4. Does this crime lead to deportation of noncitizens?

A conviction may have negative immigration consequences.

Firearm offenses can mean that:

• a non-citizen gets deported, or
• an immigrant is deemed “inadmissible.”¹¹

This means a brandishing conviction can prove detrimental if the act was done with a gun.

5. Can a conviction be expunged?

If you are convicted of this crime, you are entitled to an expungement of your criminal record provided that you:

1. successfully complete probation, or
2. complete a jail term (whichever is relevant).

If you violate a probation term, you could still possibly get the offense expunged. This, though, would be in the judge’s discretion.

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹²

6. Does a conviction affect my gun rights?

A conviction under PC 417 may have a negative effect on your gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California. The same holds true for people with two or more convictions under PC 417.

Therefore, you will lose your gun rights under this law if:

1. your offense is charged as a felony, or
2. you are convicted under the statute more than once.

7. Are there crimes related to the brandishing of a weapon?

There are three criminal charges related to brandishing a weapon or firearm. These are:

1. assault with a deadly weapon – PC 245a1
2. assault with a firearm – PC 245a2, and
3. assault by means likely to produce great bodily injury – PC 245a4

Assault with a deadly weapon – PC 245a1

Under Penal Code 245a1 PC, you commit this crime if you:

1. commit an assault, and
2. do so using a deadly weapon.

Unlike Penal Code 417, this law requires a showing that you intended to harm the alleged victim.

Assault with a firearm – PC 245a2

Per Penal Code 245a2 PC, you commit a crime if you commit an assault with a firearm.

Like PC 245a1, this code section requires a showing that you intended to harm the alleged victim.

Assault by means likely to produce great bodily injury – PC 245a4

Penal Code 245a4 PC is the California statute that makes it a crime for you to:

1. commit an assault, and
2. to do so by using force likely to produce “great bodily injury.”

“Great bodily injury” is a legal term that means significant or substantial bodily harm.

Criminal threats – PC 422

Penal Code 422 PC makes it a crime to threaten to kill or physically harm another person. As a wobbler, it can be a felony or a misdemeanor.

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