Penal Code 417 –Brandishing a Firearm or Deadly Weapon in California

Is Brandishing a Firearm and Felony or Misdemeanor?

The penalties will vary depending on the circumstances of the offense, such as whether the person brandished a firearm or deadly weapon, or if it was done in the presence of law enforcement, or in a public place. 

A violation of Penal Code 245 is a MISDEMEANOR if: 

You brandished a deadly weapon (not a firearm) during a fight or argument 

• Minimum of one (1) month in county jail.

You brandished a firearm (pistol, revolver, or any other firearm) in a public place 

• Three (3) months to one year in county jail 
• Maximum fine of one thousands dollars ($1,000)
• Both imprisonment and a fine 

You brandished a firearm during a fight or argument

• Minimum one (1) month in county jail. 

When can brandishing a firearm be charged as either a MISDEMEANOR OR FELONY?

A violation of Penal Code 245 is a “wobbler” (felony or misdemeanor) in the following circumstances: 

You brandished a firearm at a day care center 

Brandishing a loaded firearm at a day care program, recreation program, or non-profit program for persons under 18 years of age during hours of operation is a wobbler, depending on several factors related to the case itself as well as your prior record.  

As a misdemeanor you face: 

• Three (3) months to one (1) year in county jail 

As a felony you face: 

• Sixteen (16) months, two (2), or three (3) years in state prison. 

You brandished a firearm in the immediate presence of a peace officer: 

You brandished a loaded or unloaded firearm in the immediate presence of law enforcement

In a threatening or angry manner and, you reasonably knew or should have known that by the officer’s appearance that they were engaged in official duties.  

As a misdemeanor you face: 

• Nine (9) months to one (1) year in county jail 

As a felony you face: 

• Sixteen (16) months, or two (2) or three (3) years in state prison

Defenses to a charge of Violating California’s Brandishing Laws  

Self-defense 

This defense works if the defendant both honestly and reasonably believed in the need to resort to force in order to avoid a threatening situation –This too applies to the defense of another person. You can claim self-defense if: 

There was an Imminent threat: The harm was right about to happen through actual show of force or through words that imply threat of force. 

-You had reasonable fear:  Fear is assessed according to what an ordinary and reasonable person would do under those circumstances. Keep in mind that acting out of fear does not always meet the reasonable person standard.

-You used proportional force: The force has to be proportional to the threat faced. A threat of being punched cannot be responded with the stabbing of the other person. Once there is no longer a threat of harm, the use of force to defend oneself is over. 

Weapon or firearm was not displayed in an angry or threatening manner 

One of the elements that the prosecution must prove is that the deadly weapon or firearm was displayed in an angry or threatening manner. If you were exhibiting the weapon to someone in a non-threatening manner, for example, to educate someone or reenact something, then this means that the display of the weapon or the firearm was probably misinterpreted. 

You did not exhibit a deadly weapon 

If it can be demonstrated that the object displayed could not have been capable of producing injury or death, then you cannot be convicted of this offense. As previously mentioned, , a deadly weapon is any object or instrument that is likely to produce death or great bodily injury. If a reasonable person in his or her position could not have believed that the object could produce death or great bodily injury, then it can be argued that this element of proof cannot be proven. 

Related Offenses: 

• Penal Code 245(a)(1) –Assault with a deadly weapon
• Penal Code 245(a)(2) –Assault with a firearm
• Penal Code 24500 –Illegally Carrying a Concealed Weapon 

Hiring a Criminal Defense Lawyer:  

If you have been charged with assault with a firearm in the San Francisco Bay Area, it is important to consult with an attorney right away. Our job is to reduce that stress and work with you in earning the best possible outcome, whether that be a dismissal or a plea deal.