Under Penal Code § 417
Penal Code § 417 differentiates between brandishing a weapon of any kind from brandishing a firearm by mandating different punishments for each. “Brandishing” is simply means displaying an object in a threatening manner. Under this section it will be applied to every person who, except in self-defense, in the presence of another person, draws or exhibits a weapon in a rude, angry or threatening manner, or who in any manner unlawfully uses a weapon in any fight or quarrel.
Therefore, in order for an individual to be convicted under this section, the prosecution must prove beyond a reasonable doubt that the weapon was taken out in some threatening manner or during a fight, and not in self-defense. More often than not, unless there is a clear case of robbery where the weapon was used to take the property of another by force or fear, there will usually be a strong argument that these elements are not met by the facts of your case.
If you had a reasonable belief that it was necessary to take out a weapon for your own safety, you may not be properly convicted under this section. Generally, self-defense is not an available defense in situations where a weapon is brandished during a fight between two people. However, if you had a reasonable belief that the fight was soon to be escalated to the point where you may be outnumbered or that the other person may pull out a weapon, brandishing a weapon may very well be a reasonable means of preventing harm to yourself and you may have a strong self-defense argument in that situation.
This section also requires that the weapon was brandished in a “rude, angry, or threatening manner” which is very subjective and open to interpretation. Without sufficient evidence and reliable eyewitness testimony, this might be very difficult for the prosecution to prove and therefore it will also necessarily be a very strong foundation for an experienced defense attorney to mount an argument on your behalf.
As mentioned above, Penal Code § 417 provides separate punishments for firearms than other weapons. Under PC § 417(a)(1), brandishing any weapon other than a firearm will be charged as a misdemeanor and punishable by no more than 30 days in county jail. California takes brandishing a firearm much more seriously. Penal Code § 417(a)(2) provides different punishments for brandishing a firearm depending on facts specific to the case. If it is brandished in a public place, the court may sentence you from 3 months to 1 year in county jail and a fine of $1000. If it is brandished near a day care center, or in the presence of a police officer, the penalty increases to 1 year in county jail or up to 3 years in state prison.
As is the case with all weapon offenses, the sooner you contact an attorney once you are arrested, the sooner they may begin a proactive approach in addressing the charges that might be brought against you given your unique circumstances. Negotiations with the prosecution in how proceed with the charges will be crucial to how the court will ultimately decide in sentencing. It could very well be the case that the evidence available from initial discovery stages will not be sufficient to prove the necessary elements of this section beyond a reasonable doubt. Therefore it is imperative that you contact an experienced weapons attorney in San Diego immediately to better your chances of reducing the charges, sentencing, or possibly having the case dismissed in its entirety.