California Penal Code 417 makes it a crime to draw or exhibit a deadly weapon or firearm in a rude, angry, or threatening manner in the presence of another person, when not acting in self-defense.
Brandishing charges are taken seriously in Los Angeles County and throughout California.
Although most cases are misdemeanors, certain aggravating circumstances can elevate the offense to a felony.
If you have been arrested or accused of brandishing a weapon, understanding the law and your defenses is critical.
Your best hope for a favorable outcome is with an experienced criminal defense attorney at Eisner Gorin LLP.
To schedule a consultation, call (818) 781-1570 or contact us here.
What Is Brandishing Under Penal Code 417?
Under Penal Code 417, a person commits brandishing when they:
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Draw or exhibit a deadly weapon or firearm
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In the presence of another person
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In a rude, angry, or threatening manner
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Not in lawful self-defense
Unlawfully displaying a weapon during a fight or quarrel can also qualify as brandishing.
Importantly, the weapon does not need to be fired, pointed directly at someone, or even loaded to violate the statute.
What Qualifies as a Deadly Weapon?
A deadly weapon includes:
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Firearms (loaded or unloaded)
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Knives or razor blades
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Baseball bats
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Bottles
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Any object capable of causing death or great bodily injury when used in a dangerous manner
The definition is broad. Even ordinary objects can be considered deadly weapons depending on how they are used.
Elements the Prosecutor Must Prove
To convict under Penal Code 417, the prosecutor must prove beyond a reasonable doubt that:
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You drew or exhibited a deadly weapon or firearm
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Another person was present
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You acted in a rude, angry, or threatening manner
If the prosecution cannot prove each element, you cannot be convicted.
Brandishing a Firearm vs. Other Weapons
Penal Code 417 includes different subsections covering firearms and other deadly weapons.
For firearms:
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The weapon does not have to be loaded
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Simply displaying it in a threatening manner may suffice
Separate provisions address knives and other objects.
When Brandishing Becomes a Felony
While most brandishing cases are misdemeanors, certain situations increase the severity:
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Brandishing a firearm at a law enforcement officer
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Brandishing at an occupant of a motor vehicle
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Brandishing at a daycare center or school
These enhanced charges can expose a defendant to state prison time.
Penalties for Brandishing a Weapon
Misdemeanor Penalties
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Up to one year in county jail
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Fines
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Probation
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Possible firearm restrictions
Felony Penalties
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16 months, 2 years, or 3 years in state prison
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Formal probation
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Permanent firearm consequences
A conviction can also negatively impact employment, professional licensing, and immigration status.
Common Legal Defenses to Penal Code 417
Every case depends on its specific facts. However, several defenses are commonly raised.
Self-Defense
If you reasonably believed you were in imminent danger and displayed the weapon to protect yourself or another person, you may not be guilty.
Self-defense is one of the most effective defenses in brandishing cases.
No Threatening Conduct
Simply possessing or holding a firearm is not enough. The prosecution must prove you displayed it in a rude, angry, or threatening manner.
Video footage, witness testimony, and context often determine this issue.
Mistaken Identity or Misidentification
In some cases, witnesses may be mistaken about:
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Who displayed the weapon
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Whether a weapon was actually present
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Whether the object was truly a firearm
Poor lighting, distance, and stress can impact witness reliability.
Object Was Not a Firearm or Deadly Weapon
If the object displayed was not capable of causing serious harm or was misidentified, this may defeat the charge.
Lack of Evidence
The prosecution must prove each element beyond a reasonable doubt. Inconsistent testimony or lack of corroborating evidence can create reasonable doubt.
Brandishing vs. More Serious Weapons Charges
Brandishing does not require pointing or firing a weapon.
More serious offenses include:
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Possession of a firearm with the intent to commit a felony
If no actual assault occurred, the charge may properly be limited to brandishing rather than a more serious offense.
Pre-Filing Intervention
In some cases, defense counsel may intervene before formal charges are filed.
By presenting:
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Exculpatory evidence
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Witness statements
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Surveillance footage
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Mitigating background information
It may be possible to persuade the prosecutor not to file charges or to reduce the filing decision.
Frequently Asked Questions
Does the gun have to be loaded?
No. An unloaded firearm can still result in a brandishing charge.
Do I have to point the gun at someone?
No. Simply displaying it in a threatening manner may qualify.
Is brandishing always a misdemeanor?
No. Certain aggravating circumstances elevate the offense to a felony.
Can I claim self-defense?
Yes. If you acted lawfully to protect yourself or another, you may have a valid defense.
Speak With a Los Angeles Weapons Defense Attorney
A brandishing charge can carry serious consequences, including jail time and long-term firearm restrictions.
If you are facing charges under Penal Code 417 in Los Angeles or anywhere in Southern California, consult with an experienced criminal defense attorney immediately.
An effective defense may involve challenging the evidence, asserting self-defense, or negotiating a reduction before formal charges are filed.
Early legal intervention can make a meaningful difference in the outcome of your case.
Eisner Gorin LLP is here to help. Schedule your consultation by calling (818) 781-1570 or using the contact form. Our law firm is based in Los Angeles.
If you have one phone call from jail, call us! If you are facing criminal charges,