Sec 417 of the California Penal Code penalizes the “drawing, exhibiting or using a firearm or deadly weapon.” The following are the elements that the prosecution needs to prove the following elements:
• A person drew or exhibited a deadly weapon or firearm in the presence of another;
• The person did the act in a rude, angry or threatening manner or during a fight or quarrel;
• The said drawing of the weapon was not used in self defense or defense of another person at the time;
The law defines a deadly weapon is “any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” Great bodily injury is also defined as a significant or substantial physical injury sustained by another person. A deadly weapon is an item extrinsic to the human body and as such martial arts expertise is not covered under this law. Even everyday objects can be used as a deadly weapon if used properly and for that purpose.
Under California law, a firearm has been defined as “any device designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” If the object meets this definition, then it does not matter if the firearm was loaded or unleaded at the time of the offense. These include pistols, revolvers, rifles and shotguns but excluded are pellet guns and BB guns.
The other element important in a case under this law is the presence of another person. When the weapon was exhibited in the presence of another person, then the law has been violated. There is no need that the gun be pointed at the person or fired the gun.
There are many ways that this crime is committed and as such there are specific guidelines on whether these crimes can be charged as either a misdemeanor or a felony. This is determined through the circumstances of the case as well as the accused’s criminal history. The following are the penalties imposable depending on the crime charged:
• For a misdemeanor charge for drawing a weapon in a rude, angry or threatening manner or during a fight, the minimum penalty would be a thirty (30) day prison time in a county penal facility;
• For exhibiting a firearm under the same circumstances, the penalty imposable would be between three to six months in a county prison facility;
• For brandishing a firearm in a public place and the firearm is a pistol, revolver or other firearm concealed within the person, the following are the imposable penalties:
o Between three to twelve months in county jail;
o Payment of a fine amounting to $1,000;
• For drawing or exhibiting a firearm, regardless if it is loaded or not, in a rude, angry or threatening manner in the presence of a peace officer while in the performance of official duties, the imposable penalty would be up to nine (9) to twelve (12) months in county jail as a misdemeanor or sixteen (16) months to thirty six (36) months in a state penal facility for a felony charge.
The crime of brandishing a weapon or firearm is a serious matter in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.