Brandishing offenses (Penal Code section 417(a)(1) & (a)(2)) may occur in any setting, but are often seen occurring during “road rage” incidents, neighbor disputes, and in DV cases. To prove that a defendant committed this offense, the prosecutor must establish that the defendant:
- drew or exhibited a deadly weapon or firearm
- in the presence of another person
- in a rude, angry or threatening manner, or in a fight/quarrel
- and that he did not act in self-defense
For the “brandishing” to occur, it is not necessary that the weapon be pointed at the victim, nor is the defendant required to make any threatening or hostile remarks, although a prosecutor can certainly consider these factors if they occurred. Also, in cases where the evidence suggests that the defendant intended to harm the victim, the prosecutor might charge “assault with a deadly weapon” (Penal Code section 245) which is a more serious offense (see Violence-related Offenses).
The specific circumstances of any case are going to vary considerably. Therefore, any possible defenses available to the client must be specifically tailored to the facts involved. To achieve a “complete picture”, the client and attorney must have a full discussion in order for the attorney to develop a strategy that will achieve the best results for the client. Some of the defenses available may include, but are not limited to the following:
- the weapon was not deadly (small plastic ball, rolled-up newspaper)
- the firearm is a fake (incapable of being fired)
- the defendant thought he was alone (“did not realize anyone was around”)
- the defendant’s actions were not rude, angry or threatening (meant/intended as a joke)
- the defendant acted in self-defense (coupled w/reasonable belief of harm and force)
Again, the specific details involving any of the above defenses are crucial and must be carefully detailed by an experienced attorney. If so, this information may persuade the prosecutor to decline filing charges (per a “pre-filing meeting” – see Alternative Solutions) or even to dismiss charges. In cases where a client bears criminal responsibility for the brandishing, the defense may not be a complete defense, but can still help reduce the possible penalties.
Punishment & Firearms Ban
The offense of brandishing a concealed weapon, if punished as a misdemeanor, will carry a term of probation and a minimum of 30 (deadly weapon) or 90 days (firearm) of custody and up to 1 year in the county jail. Also, there may be fines and fees.
The following are examples of “aggravating circumstances” and will elevate the charge of brandishing a concealed firearm to a felony. They include, but are not limited to:
- at a police officer, or while resisting arrest
- at a person in a car
- causes serious bodily injury
Depending on the circumstances of the case, a defendant convicted of a felony offense could receive several years of formal probation with a minimum of 30 days of custody (deadly weapon) or 90 days of custody (firearm) and up to one year in the county jail. However, if probation is denied then the defendant can be punished by up to 3 years in state prison (unless further factors require additional years).
Finally, a misdemeanor conviction will require a 10-year ban on owning or possessing a firearm. If the defendant is convicted of a felony, the ban is for life.