Penal Code § 417.4 PC – Brandishing an Imitation Firearm in California

Penal Code § 417.4 PC makes it a crime to draw or brandish an imitation firearm in a threatening manner, such that it places others in fear. A conviction is a misdemeanor punishable by a minimum of 30 days and up to 6 months in jail.

The language of the statute reads that:

417.4. Every person who, except in self-defense, draws or exhibits an imitation firearm, as defined in subdivision (a) of Section 16700, in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor punishable by imprisonment in a county jail for a term of not less than 30 days.

Examples

• jumping out from an alley and aiming a BB gun at someone.
• pushing a neighbor and then pointing an imitation gun at them.
• yelling threatening words at someone and then waving a replica weapon in their face.

Legal Defenses

Three common defenses include showing that you:

• did not perform a threatening act.
• did not make someone fear bodily harm.
• were acting in self-defense.

Penalties

A violation of this code section is charged as a misdemeanor (as opposed to an infraction or a felony).

The crime is punishable by custody in county jail for a mandatory minimum of 30 days and up to 6 months.

Note that a judge can award you with misdemeanor (or summary) probation in lieu of jail time.

Our California criminal defense attorneys will address the following in this article:

• 1. When is it a crime to draw an imitation firearm?
• 2. What are the best defenses to Penal Code 417.4 PC?
• 3. What are the penalties for violating PC 417.4?
• 4. Can I get a conviction expunged?
• 5. Are there similar crimes?

PC 417.4 prohibits brandishing an imitation gun in a threatening way.

1. When is it a crime to draw an imitation firearm?

A prosecutor must prove the following to successfully convict you of brandishing an imitation firearm:

1. you drew or exhibited an imitation firearm in a threatening manner against another person,
2. your actions caused someone to fear bodily harm to themself or someone else,
3. that fear of harm was reasonable,¹ and
4. when you drew or exhibited the imitation firearm, you were not acting in self-defense or in defense of someone else.²

An “imitation firearm” is a device that is so substantially similar to a real firearm in color and overall appearance that a reasonable person would believe that it is a real firearm.³

2. What are the best defenses to Penal Code 417.4 PC?

Here at Shouse Law Group, we have represented literally thousands of people charged with firearm crimes, including brandishing an imitation gun. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries.

There was no threatening act

You are guilty under this statute only if you drew an imitation weapon in a threatening manner. To show that you did nothing threatening, we would rely on such evidence as:

• video surveillance video
• eyewitness accounts
• eyewitness mobile phone videos and/or photos

Brandishing the imitation gun in a joking way or a theatrical way is not the same as a threatening way. Unless the prosecutors can prove guilt beyond a reasonable doubt, your charge should be dismissed.

There was no fear of bodily harm

You can be convicted under this statute only if your actions caused another person to fear bodily harm. To show that your acts could not have reasonably caused someone to experience fear, we would rely on the same evidence listed above.

Even if the state presents testimony of the alleged victim that they were scared, we may be able to override it by video evidence and other credible eyewitness testimony.

You acted in self-defense

Brandishing an imitation firearm is lawful in California as long as you reasonably feared that you or someone else faced immediate bodily harm, and your actions were proportional to the threat you faced.

The best evidence to prove you acted in self defense or defense of others is video surveillance footage and eyewitness accounts. Though if we have none of this evidence, we instead concentrate on impeaching the accuser’s credibility.

Often we can use the accuser’s own words against them to show that they had a motivation to lie or were not mentally competent at the time of the incident. Once prosecutors see the accuser is an unreliable witness, the charge should be dropped.

3. What are the penalties for violating PC 417.4?

A violation of this code section is a misdemeanor offense.⁴

The crime is punishable by imprisonment in county jail (as opposed to state prison) for a minimum of 30 days and up to a maximum of 6 months.⁵

A judge does have the authority to award you with misdemeanor probation in lieu of jail time.

Brandishing an imitation gun is a California misdemeanor.

4. Can I get a conviction expunged?

If you are convicted under this statute, you can get the conviction expunged, per Penal Code 1203.4 PC.

This is provided you successfully complete:

• jail time, or
• probation (whichever was imposed).

5. Are there similar crimes?

There are three crimes related to drawing a fake gun. These are:

1. brandishing a weapon or firearm – PC 417,
2. aiming or pointing a laser scope or pointer – PC 417.25, and
3. assault with a firearm – PC 245a2

Brandishing a weapon or firearm – PC 417

Penal Code 417 PC is the California statute that makes it a crime to brandish a firearm or deadly weapon. “Brandishing” means to:

• draw or exhibit a deadly weapon or firearm, or
• use a deadly weapon in a fight.

Note that while PC 417.4 pertains to fake firearms, this law focuses on real firearms or weapons.

Aiming or pointing a laser scope or pointer – PC 417.25

Penal Code 417.25 PC is the California statute that makes it a crime to point a laser scope, or a laser pointer, at another person in a threatening manner.

As with brandishing an imitation firearm, a violation of this statute is charged as a misdemeanor and is punishable by up to 30 days in jail.

Assault with a firearm – PC 245a2

Per Penal Code 245a2 PC, assault with a firearm can be charged when you assault a victim using a pistol, rifle, shotgun, semiautomatic firearm, machine gun, .50 BMG rifle or assault weapon.

Unlike PC 417.4, you have to do more than just draw a weapon to be convicted under this law. For example, an assault can take the form of:

• pointing a firearm at an alleged victim,
• striking or “pistol-whipping” the victim,
• firing the gun at the victim, or
• actually shooting the victim.

Legal References:

1. See In re Michael D. (2002) 100 Cal.App.4th 115.
2. CALCRIM No. 985 – Brandishing an Imitation Firearm. Judicial Council of California Criminal Jury Instructions (2020 edition).
3. See same.
4. California Penal Code 417.4 PC.
5. See same.