Suppose you've been accused of an offense involving a deadly weapon in California, depending on the circumstances. In that case, prosecutors might charge you either with brandishing a weapon or assault with a deadly weapon.
Although these offenses may sound similar, they carry very different implications for your case and potential penalties. While brandishing a weapon (PC 417) is a misdemeanor offense, assault with a deadly weapon (PC 245(a)(1)) is frequently charged as a felony, garnering much steeper penalties and repercussions.
The primary difference between the two crimes is the intent to cause harm. Brandishing a weapon involves attempting to intimidate or threaten.
Still, if prosecutors believe you actually attempted to harm someone with the weapon, they will likely charge you with the more serious offense of assault with a deadly weapon.
Simply put, in California, while both assault with a deadly weapon (PC 245(a)(1)) and brandishing a weapon (PC 417) involve weapons, the key difference is intent. Assault requires an intent to cause harm, while brandishing focuses on the act of threatening or intimidating others without necessarily intending to cause harm.
An assault with a deadly weapon (ADW) involves an unlawful attempt to commit a violent injury to someone else, using a deadly weapon or force likely to produce great bodily injury with the intent to cause harm.
For example, pointing a loaded gun at somebody, striking someone with a baseball bat, or using a knife to threaten another person.
In contrast, brandishing a weapon is a crime that involves drawing or exhibiting a weapon in a threatening manner or using it in a fight other than in lawful self-defense and, for example, pulling out a gun during an argument, waving a knife around in a threatening manner, or using a baseball bat to threaten someone.
Let's look more closely at these two crimes and compare them.
California Penal Code 245(a)(1) PC - Assault with a Deadly Weapon
California Penal Code (PC) 245(a)(1) governs the crime of "assault with a deadly weapon" (ADW). This offense occurs when a person unlawfully attacks or attempts to attack another person using a deadly weapon or force likely to result in great bodily injury.
It's distinct from a threat because it involves an act or an imminent intent to harm another physically.
Punishment for ADW is more severe than for brandishing a weapon. While ADW may be charged as a misdemeanor in some cases, it is often treated as a felony, especially if the weapon involved is particularly dangerous or if serious injury is likely.
Felony ADW convictions may carry sentences ranging from two to four years in state prison, fines up to $10,000, and a permanent criminal record. The offense's classification as a misdemeanor or felony depends heavily on case details, such as the nature of the weapon used and the circumstances of the alleged assault.
PC 245(a)(1) says, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
California Penal Code 417 - Brandishing a Weapon
California Penal Code (PC) 417, on the other hand, defines the crime of "brandishing a weapon or firearm." Under this statute, it's illegal to draw, display, or use any deadly weapon (other than in self-defense) in a rude, angry, or threatening manner in the presence of another person.
The law applies to both firearms and other deadly weapons. 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.
PC 417 typically results in misdemeanor charges. Penalties for violating this statute can include up to one year in county jail, fines up to $1,000, or both. Specific circumstances, such as brandishing a loaded firearm in a daycare or youth center, may result in harsher penalties, but such cases remain less severe than felony charges.
The key element in brandishing a weapon is demonstrating the weapon with an intent to intimidate rather than to cause physical harm.
PC 417 (a)(1) says, "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."
Simply put, brandishing a weapon does not require the intent to cause harm; it merely requires the intent to threaten or intimidate.
What are the Key Differences?
Legally speaking, an important distinction separates the two charges of brandishing a weapon (PC 417) versus assault with a deadly weapon (PC 245(a)(1)). The primary difference lies in intent and conduct:
- Intent: Brandishing a weapon involves using it to intimidate or threaten someone but without a clear intent to cause physical harm. It's an act of menace, not physical violence. Conversely, assault with a deadly weapon requires either taking action to harm another person physically or attempting to do so. Proving an intent to injure is typically critical in an ADW case.
- Conduct: Brandishing cases often center on how the defendant displayed or threatened to use the weapon. No physical contact or actual injury usually occurs. ADW cases, in contrast, often involve attempts to strike or harm someone outright, even if the victim manages to avoid injury.
The differences in intent and action result in starkly contrasted penalties. Because ADW involves the potential for greater harm, it's treated more severely under the law. Even for first-time offenders, ADW can lead to felony charges, while brandishing is generally charged as a misdemeanor and carries less severe penalties.
Importance of Differentiating the Charges
For individuals accused of crimes in California, understanding the distinction between brandishing a weapon and assault with a deadly weapon is more than academic. It can be the difference between facing a brief stint in county jail and enduring multiple years in state prison.
This contrast in severity often makes Penal Code 245(a)(1) cases a focal point for criminal defense strategies, which is why hiring a good California criminal defense lawyer is essential.
In cases like these, a good attorney will often argue that the defendant lacked the intent to cause physical harm or that their actions constitute brandishing rather than an attempted assault.
For example, if someone raises a knife during an argument but there's no evidence they tried to use it on the other person, their attorney may try to reduce the charges to brandishing.
This can make a huge difference in the outcome of the case, especially if you are convicted. By emphasizing a lack of harmful intent or focusing on mitigating circumstances, your attorney may be able to negotiate reduced charges, turning an ADW case into a less consequential brandishing charge.
Contact our criminal defense law firm, Eisner Gorin LLP, for more information.
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