Confrontations or situations that lead someone to lose his/her cool can happen at any moment. These provocations could lead you to react, and further conflict could result in injury or a threat to another’s life. The risk to another’s life escalates when a firearm or a lethal weapon is used, even if you display the firearm or weapon without using it. Under PC 417, this display could result in criminal prosecution.
It is an offense under PC 417 to exhibit or draw your weapon or firearm in an angry, rude, or threatening manner or to use it in a fight. You risk jail time and parting with fines if convicted. With an attorney's help, you can fight the charges. At Los Angeles Criminal Lawyer, we bring on board our vast experience in criminal defense to our client's cases with an aim at delivering the best legal outcome. Get in touch with us if you are facing charges under PC 417.
An Overview of Brandishing a Firearm or Weapon
The second amendment safeguards the rights of individuals to bear arms. However, in the interest of public safety, PC 417 criminalizes any action that threatens another’s life or safety. It is the reason why the DA would prefer prosecution under PC 417 if they believe you exhibited or brandished a firearm or weapon in a manner that posed a threat to another’s life.
First, it is pivotal to understand the terms used in a PC 417 violation case.
Firearms and Deadly Weapons
Firearms pose a risk to human life. A gun can inflict serious bodily injury to another or kill the victim. Under California law, a firearm is any device that expels or launches projectiles through an explosion or force of combustion, for example, shotguns or pistols. This definition excludes air rifles, BB, and pellet guns as both use air as the necessary force to release projectiles.
It is worth noting that the firearm need not be loaded at the time of the incident.
Deadly weapons also pose an inherent risk to human life. Therefore, any device that would reasonably inflict great bodily harm or kill another fits the definition of a lethal weapon. The list of deadly weapons includes the more obvious devices like knives, swords, hammers, hand pruners, and chainsaws and the less obvious objects like a sharp pencil or rock.
The list is not exhaustive. Juries exercise their discretion to determine if the object is deadly. The standard is any device or object that could inflict grave injuries on another if used with force.
Risk to Human Life
Actions that could result in significant bodily injury or death to another fit the description of a risk to human life.
Great bodily injury varies with every case. The jury makes its determination after considering several factors, including the severity of the injury, the pain caused to the victim, and the medical attention required in treating the injury.
Whether the harm suffered by the victim meets the great bodily injury threshold is a question of fact to be answered by the jury. It is not a question of law.
Some of the injuries that meet the definition of significant bodily harm include but are not limited to the following.
- Broken or fractured bones
- Contusions and swelling,
- Stab wounds
- Loss of consciousness
- Black or swollen eyes
- Severe abrasions
- Head trauma
- Loss of use of an organ or limb
- Serious disfigurement and
- Gunshot wounds
The Alleged Victim
Another individual must be close when drawing and exhibiting a firearm or weapon. Additionally, the individual could also be the one you directed your anger or threats to. PC 417 does not require the DA to prove you pointed the gun or lethal weapon at someone or that you fired the gun or used the weapon. Only displaying the weapon or firearm is enough to face charges under PC 417.
How You Exhibited Or Brandished The Firearm Or Weapon
How you exhibit or brandish a weapon is demonstrated by actions capable of inflicting significant physical harm or death to another. This is why the DA will consider prosecuting you if you wave, brandish or point a gun or weapon in a threatening, angry, offensive, or rude manner.
While displaying the firearm or weapon, your intentions could have been to frighten another with no intent to harm them physically. Your actions nonetheless pose a risk to human life.
Your Actions Were Not to Defend Yourself or Another
You will only be found guilty if you or another were not in danger. The DA will present to the jury that there was no danger posed to you or another, thus arguing that your actions were not to defend yourself or another.
What Prosecutors Must Prove
PC 417 provides several elements the DA must prove for you to be convicted. Prosecutors must establish the following.
- You exhibited or drew a firearm or deadly weapon in the presence of another
- You acted in an angry, rude, or threatening manner or used the gun or weapon in a quarrel or fight
- You did not act in self-defense
According to PC 417, the alleged victim must not suffer significant bodily injury for you to be found guilty of the crime.
If you inflicted significant bodily harm, the DA would pursue charges under PC 417.6, brandishing a firearm with bodily injury. Further, if you brandish or draw an imitation firearm in a threatening manner that causes another to fear you inflicting physical harm, you will be charged with a PC 417.4 violation.
Brandishing a Firearm or Weapon and Inflicting Serious Bodily Injury
It is a crime under PC 417.6 to wave or brandish a firearm or a deadly weapon at another individual and inflict serious physical harm in the process. Further, you must have intentionally inflicted the injury.
Intent is pivotal in PC 417.6. Prosecutors must prove that you intended to inflict the injury on the victim for you to be found guilty of a PC 417.6 violation.
Examples of violations of PC 417.6 include using the butt of a gun in a fight and breaking the victim’s nose in the process or using a knife in a quarrel and slashing another’s arms.
Brandishing an Imitation Firearm
While imitation firearms do not pose an inherent danger to human life, they cause the victim fear for his/her life or the lie of another. That is why you risk conviction for brandishing an imitation firearm.
An imitation gun is any device similar in structure, appearance, and color to an actual gun. Further, a reasonable person would believe the imitation gun to be a real firearm.
Under PC 417.4, the DA will have to prove the following for a conviction.
- You exhibited or drew an imitation firearm in a threatening manner against another
- Your actions caused the victim to fear for his/her life or that of someone else
- The fear of bodily harm was reasonable
- You did not act in self-defense or defense of another when you exhibited or drew the imitation firearm.
Penalties Issued Upon Conviction
Convictions result in jail or prison time and possible fines. The severity of the penalties depends on the circumstances of your case.
Brandishing a firearm or a deadly weapon is a misdemeanor offense. You will receive a jail sentence of three months to one year and a possible fine of up to $1,000 for brandishing a firearm that can be concealed if the offense occurs in a public space or private property. If you brandish a gun on school grounds, you will likely receive the same punishment. However, you could be charged with a misdemeanor or felony if you brandish a firearm on day-care center grounds while it is open. If charged with a misdemeanor, you could spend up to one year in jail and up to three years in prison for a felony conviction.
If the brandishing violation resulted in serious bodily harm to the victim, PC 417.6 provides a one-year maximum jail term for misdemeanor violations and up to three years in prison for felony violations.
If you brandished a firearm or deadly weapon in the immediate presence of an on-duty peace officer whom you knew to be or should have reasonably known to be a peace officer, you could be convicted for a misdemeanor or a felony offense. Misdemeanors are punishable by a jail sentence of up to one year with a nine-month minimum. Felony offenders, on the other hand, receive a prison sentence of 6 months, 2, or 3 years.
Finally, for brandishing a fake gun, you will be sentenced to jail for a minimum of 30 days and a maximum of 6 months if convicted. The offense is a misdemeanor.
Judges could also issue probation terms instead of time in jail or prison. You could receive summary probation terms for misdemeanor offenses and formal probation if convicted of a felony.
Challenging Brandishing a Firearm or Deadly Weapon Charge
Defense attorneys use different defenses informed by the circumstances of the case. Here is a look at some of the common defenses your attorney could use.
Self-Defense or in Defense of Others
Under self-defense or in defense of others’ argument, you must prove to the court that you:
- Reasonably believed you or another was in imminent danger of suffering physical harm, and
- You used necessary but not excessive force against the danger
If you used excessive force or force beyond that which a reasonable person would consider appropriate given the circumstances, self-defense or in defense of others strategy would not work. The DA could potentially add assault charges to your charge sheet.
You Did Not Act in a Threatening Manner
Some innocent actions could be misrepresented as threatening, rude, or born of anger. Simple acts like drawing or exhibiting a firearm to reenact a scene in a film, show off, or educate could be misinterpreted. Your attorney will present proof to challenge the victim’s assertions that your actions were threatening or rude.
In other instances, victims make false allegations to retaliate for a perceived wrong or out of jealousy. With your attorney’s help, you will be in a position to challenge the DA’s case with this defense.
Lack of Fear of Bodily Harm
Lack of fear of bodily harm is best applied in brandishing fake gun cases. It is a requirement for prosecutors to prove the victim reasonably feared for his/her life. In your defense, your attorney will demonstrate to the jury that your actions could not have reasonably caused anyone to fear for his/her life.
Lack of Intent
In cases where brandishing inflicted injury on another, you can only be convicted if your intent to inflict harm is proven. Prosecutors find it challenging proving intent, thus failing to prove their cases beyond a reasonable doubt. Your actions could have been accidental, therefore lacking intent. If so, this defense would be ideal.
Lack of a Deadly Weapon
Under PC 417, the DA must prove that you used a firearm or an object with the potential of turning deadly when force is applied. The DA must convince the jury that the device could potentially inflict serious injury to another. On the other hand, your attorney will demonstrate to the jury that said object is not deadly as presented by the DA.
Consequences on Immigration and Gun Rights
Non-citizens will be deported to their country of origin and be deemed inadmissible after conviction for a deportable offense. Firearm violations are deportable offenses. Therefore, if you are a non-citizen, time in jail or prison is not the only adverse consequence a conviction under PC 417, 417.6, and 417.4 will result to. Deportation is likely.
Convictions for the above offense also affect your gun rights. Under California law, no convicted felon can own or possess a gun. If convicted of a felony charge, you will lose your firearms and rights to own or keep one. If found to be in possession of one, you will face additional charges.
Expungement of Brandishing a Weapon Convictions
Criminal records adversely impact social and economic aspects after you do your time. Securing a job, renting or leasing property, accessing credit are areas you could find difficulty in. Expungement of your criminal record is a solution. Once anyone conducts a background check, your criminal record will not appear.
Here is a look at some of the benefits you can enjoy once your record is expunged.
- You can apply for professional licenses like real estate licenses — The professional board will look at your qualification, among other considerations. Your criminal record will not compromise your chances of securing a license.
- You can state you are not a convicted felon without running the risk of committing perjury.
- With an expunged record, you can state that you do not have a criminal record in a contractual agreement.
Expungement does not take away disclosure requirements in all aspects of your life. You will be required to disclose your felony record in the following situations.
- When applying for employment with a state or federal agency
- When volunteering for the military
- If you are running for public office, you must state your felony conviction.
- You will also be required to disclose your felony conviction when applying for a professional license.
- When applying to be enrolled as a law enforcement officer
Am I a candidate for expungement?
If you were convicted for a misdemeanor violation, you qualify for expungement. Additionally, if you were convicted of a felony and did not serve time in prison, you too qualify to have your records expunged. However, if you were convicted of a felony and served time in prison, you are not an expungement candidate, according to PC 17(b).
PC 17(b)(3) gives you an option to petition the court to reduce your felony conviction to a misdemeanor. The court can only grant this request if satisfied that:
- You completed all conditions and terms of your probation.
- You did not violate the terms of your probation — Probation violation will not automatically disqualify you as a candidate. However, engaging in a crime during your probation could inform a judge to decline your request.
- You have no pending felony charges.
Note: Expungement does not erase your criminal record. The records remain in the criminal database. However, the records do not show up in background checks once expunged.
The DA could consider additional charges related to brandishing a firearm or deadly weapon charge. They include:
- Assault with a deadly weapon, a violation of PC 245(a)(1)
- Assault with a firearm, a violation of PC 245(a)(2)
- Assault in a manner likely to cause great bodily injury, a violation of PC 245(a)(2)
- Aiming a laser pointer or scope, a violation of PC 417.25
At Los Angeles Criminal Lawyer, we bring on board our vast experience in defending clients facing gun-related offenses to ensure you receive the best possible outcome in the case. We partner with you in developing the winning strategy. Call us today at 310-502-1314 for a no-obligation consultation.