Brandishing a Weapon or Firearm | Penal Code § 417

Description

A person, who except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon , in a rude, angry, or threatening manner, or who uses a deadly weapon in any fight or quarrel may be charged with Brandishing a Weapon for Firearm. There is no requirement that the victim saw the weapon or you fired the gun or even pointed the weapon at the alleged victim. A person who draws or exhibits a deadly weapon at a police officer or to a person in a motor vehicle or causes serious bodily injury may be charged with a felony. An examples of potential charges for Brandishing a Weapon for Firearm is drawing a loaded gun and threatening to shoot another person, in which case a charge of Assault with a Deadly Weapon could also be added.

What does the prosecutor have to prove?

1. Defendant, in the presence of another person, drew or exhibited a loaded firearm upon or within the grounds of a day care center or a facility where programs, including day care programs or recreational programs, were 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 was open for use.
2. Defendant was not acting in lawful self-defense.
3. Defendant did so in a rude, angry, or threatening manner. or
1. Defendant used a loaded firearm in a fight or quarrel upon or within the grounds of a day care center or a facility where programs, including day care programs or recreational programs, were 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 was open for use. or
1. Defendant drew or exhibited a firearm, whether loaded or unloaded, in the presence of a person who was an occupant of a motor vehicle proceeding on a public street or highway. or
1. Defendant drew or exhibited a firearm, whether loaded or unloaded, or a deadly weapon in the presence of a peace officer.
2. Defendant was not acting in lawful self-defense. or
3. In doing so, Defendant intentionally inflicted serious bodily injury on Victim.

Punishment

Felony: 16months/2years/3years
With probation 0-364 days
Misdemeanor: 0-364 days

 

Can this be charged as a felony or a misdemeanor (“wobbler”)?	Yes
Is this charge a strike?	Yes
Is this charge a “serious felony”	No
Is this charge a “violent felony”	No
Do I have to register as a sex offender if convicted?	No
Do I have to register as a drug offender if convicted?	No
Do I lose my right to own or possess a firearm if convicted?	Yes
Do I lose my right to vote if convicted?	Yes
Am I eligible for a local sentence (PC § 1170(h)) if convicted?	No
Am I eligible for PC § 1000 drug diversion if convicted?	No
Am I eligible for Prop. 36 drug diversion if convicted?	No
Am I required to give a DNA sample if convicted?	Yes
Is this charge considered a “crime of moral turpitude” for immigration purposes?	No
Is this charge considered a “aggravated felony” for immigration purposes?	Yes
Is this charge considered a “controlled substance violation” for immigration purposes?	No
Is this charge considered a “domestic violence” for immigration purposes?	No
Is this charge considered a “firearm conviction” for immigration purposes?	No