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California Gun Laws:Brandishing a Weapon or Firearm Penal Code 417 Prosecution

If you have been charged with brandishing a firearm or a deadly weapon in California, it is important to understand what this crime entails. Our weapons charges attorneys at Wallin & Klarich want to share with you what the prosecution needs to prove in order to convict you of violating the California gun laws.

Brandishing a Firearm or a Deadly Weapon under California Penal Code 417

If you are charged with brandishing of a deadly weapon in California, the prosecution needs to prove several elements in order to find you guilty.
The prosecution needs to prove several elements in order to find you guilty of Brandishing of a Deadly Weapon in California

Under California Penal Code section 417, it is unlawful for you to draw or exhibit a deadly weapon in a rude, angry, or threatening way in the presence of another person and not in self defense or in defense of someone. If you unlawfully use a deadly weapon in a fight or quarrel that is also considered brandishing a weapon under the California gun laws. In order to convict you of this offense, the prosecution must prove the following beyond a reasonable doubt:

1. You possessed a deadly weapon as defined by law, and

2. You drew or exhibited it in a rude, angry or threatening manner to someone else, or

3. You actually used the weapon unlawfully in a quarrel or fight with someone, and

4. You were not acting in self defense or in the defense of someone else

To qualify for increased or additional punishment for violation of Penal Code 417, the prosecution must also prove:

  • Whether you used a firearm (PC 417(a)(2)(A))
  • Whether the firearm was loaded (PC 417(b); PC 417.3)
  • Whether  you were inside a vehicle with another passenger (PC 417.6(a)
  • Whether you were on the grounds of a children’s daycare center during business hours (children being anyone under the age of 18) (PC 417(b))
  • Whether you were in the presence of an on-duty peace officer (PC 417(c))


Exhibiting a firearm or a deadly weapon in a rude, angry or threatening manner

The prosecution must prove that your conduct when exhibiting or drawing the weapon was intentionally rude, angry or threatening. To do so, the prosecution would need to present evidence beyond a reasonable doubt, such as eyewitness testimony that clearly demonstrates this element. Generally, a jury will give particular weight to the testimony of an eyewitness in order to determine whether a crime has been committed or not.

Your behavior was rude, angry, or threatening

“Rude” means any behavior that could be considered vulgar or offensive to another person. “Angry” and “threatening” are synonymous and generally refer to conduct designed to disturb, frighten, offend, injure or tend to injure another person.

In order to be convicted of this offense your conduct must have disturbed, frightened, offended, or injured a “reasonable person,” who could have developed a credible fear of injury or death in a similar situation. This is an objective standard, meaning that your conduct does not actually have to frighten the victim so long as a reasonable person in his or her position would have been placed in fear by your actions.

Also, you do not need to touch the victim in order to face criminal liability for this offense. In fact, if you intentionally injure someone while brandishing a deadly weapon, you can be charged with a more serious misdemeanor or even a felony.

Brandishing a firearm vs. brandishing a deadly weapon

The prosecution needs to prove you used a firearm in attempts to increase your punishment for brandishing a weapon.
If you are charged with Brandishing of a weapon under the California Gun Laws, you face more serious consequences.

Under California law a “deadly weapon” is any object, instrument, or weapon that is capable of producing and likely to produce death or great bodily injury. Virtually any object meets this definition: your fist, a baseball bat, a bottle or even your car could be considered a deadly weapon, depending on how it is used.

A firearm specifically refers to a deadly weapon that fires ammunition: a pistol or revolver, for example. Brandishing a firearm carries increased penalties beyond those reserved for a deadly weapon that is not a firearm.

Unlawful use of a firearm or a deadly weapon

To prove this element, the prosecution must demonstrate that you used a weapon unlawfully during a quarrel or fight. “Pistol whipping” is an example of unlawful use of a firearm.

Contact Wallin & Klarich today if you have been charged with brandishing a firearm or a deadly weapon

If you or someone you know has been charged with brandishing a weapon in California, you need to contact an experienced criminal defense attorney at Wallin & Klarich today. With offices in Orange County, Los Angeles, San Diego, San Bernardino, Riverside, Ventura, Victorville and West Covina, Wallin & Klarich has successfully represented clients facing weapons charges for over 30 years. Our experienced and professional weapons defense lawyers will thoroughly review your case and develop an effective defense strategy to help you to win your case.

Call today at (877) 466-5245 or fill out our confidential form. We will be there when you call.

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