Brandishing a Gun in San Diego
Imagine being accused of handling a firearm in an unsafe manner and now you have to defend yourself from a conviction that will have a serious impact on your life. In addition to a 10-year gun ban you are looking at a minimum 90 days mandatory custody if you plead guilty to this charge. There is no alternative to custody because the Sheriff Department in San Diego does not allow CPAC or home detention if any firearm is used in the commission of the crime. It is important that you hire a criminal attorney in San Diego who will fight to make sure you avoid jail time and that this is not the consequence or outcome in your case. There are lesser-included offenses and lesser-related offenses that have a significantly lesser impact on your life.
Understanding the Second Amendment of the United States Constitution
All citizens are guaranteed the right to keep and bear arms whenever they see fit. However, this right is in conflict with California State law, which always appears to be hindering our federal constitutional gun rights. Unlike the rest of the country, California has some of the harshest gun laws in the United States. Everyone should be able to equip him or herself whenever they deem it necessary to bear arms under the United States Constitution. This conflict between California state law and the Federal Constitution has been ongoing for many years even though there exists an assumption of reasonable handling of a gun to protect oneself against unreasonable threats. However, in San Diego, you are limited in the reasonableness of this federal constitutional right and can be prosecuted under penal code section 417 for brandishing a firearm.
Understanding Penal Code Section 417
Penal Code section 417 makes it clear that every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon or firearm in a rude, angry, or threatening manner may be prosecuted under this statute.
What is the definition of brandishing a firearm?
In order to prove that you brandished a firearm in violation of Penal Code 417, the prosecutor in your case must prove beyond a reasonable doubt that you:
Drew or exhibited the firearm in the presence of another person and
Did so in a rude, angry or threatening manner or unlawfully in a fight or quarrel and
Did not act in self-defense or in the defense of others
It is extremely important to understand the self-defense argument that this statute pays extremely close attention to when describing the elements of this charge. In San Diego County you are entitled to a reasonable self-defense claim if it was reasonable at the time that you were in imminent harm or danger and it was apparent to you at the time when you drew or exhibited the firearm or deadly weapon.
Understanding the Reasonable Self-Defense Argument under Penal Code 417
The reasonable standard to a self-defense claim has to be interpreted by the person who perceives the threat. Every person can act differently in the same situation where there exists an imminent danger of harm. This is often referred to as the fight or flight doctrine. In any self-defense case, you must present an expert that can describe the physiological responses people go through when placed in a situation where they are confronted with danger. We work with the best fight or flight experts in the country who will testify on your behalf that this physiological response is not cognitive but rather it is something that each of us is born with and causes us to react in a certain way under the threat of harm.
It is important to discuss this entirely with your attorney about the extent to which you felt threatened or fear of immediate harm under the circumstances. We often provide psychological evaluations so that the court can perceive the response as a legitimate defense under the circumstances. Often times our clients are not violent or dangerous people by nature and the reaction to a perceived event should not dictate that they are a criminal but rather merely trying to survive. This defense works the majority of the time in getting not guilty verdicts across the board on various cases involving confrontations with others in San Diego.
Who has the right to own a firearm?
Everyone over 18 years old has the right to purchase a firearm as long as they are not a convicted felon, convicted of certain misdemeanor offenses or have mental health issues. In California, you can carry a gun legally with a conceal carry permit. However, it is often difficult to be issued a CCW permit without the existence of special circumstances to carry. Often good cause for issuance requires an ongoing danger at work resulting in theft or physical harm. Carrying large amounts of cash or constantly being confronted in hostile situations may be sufficient to show good cause. Also, these circumstances can be seen as mitigation in your criminal case in getting charges reduced or dismissed. Anyone who legally can carry a handgun must go through training such as obtaining a valid handgun safety certificate.
What is the penalty for brandishing a weapon in San Diego?
If you are convicted of brandishing a firearm under Penal Code 417, there exists a 10-year ban on owning any firearms. However, if you have been convicted more than once of this offense then it will result in a lifetime ban on firearms. Also, this ban applies to ammunition as well.
The most common convictions that prevent a person from owning firearms are convictions for domestic violence-related charges. Please check out our domestic violence page to see the consequences for the type of consequences that exist.
As a Second Amendment Defense Lawyer in California, we take a systematic approach in hammering state law by focusing on the supremacy clause of the federal constitution. Often time’s individuals have to carry firearms for their jobs or employment and losing this right can be detrimental to their livelihood and families. There is a due process right that everyone should be treated equal who are similarly situated and should not be collaterally affected by California State Gun Laws.
Please give us a call if you have lost your gun rights and want to fight to get them reinstated due to a criminal conviction. There are options in getting a felony reduced to a misdemeanor, which will reinstate your gun rights as well as modifying probation terms to circumvent gun restrictions against individuals who must carry a firearm as part of their employment.
Gun Charges are elevated to Felonies for People with Prior Gun Convictions
It is often the case that a prior felony conviction for a firearm offense will elevate the charge to a felony when normally it would be charged as a misdemeanor. Most gun charges in California are wobblers and can be filed either as a misdemeanor or felony. The issuing attorney at the District Attorneys Office in San Diego will look at factors in aggravation in filing felony charges. The most common factor in aggravation is similar related prior criminal charges. A felony conviction for carrying a concealed weapon can result in three years in State Prison with a $10,000 fine. It is important you hire proper representation that knowledge about the nuances of gun charges in California. We have handled hundreds of gun-related offenses throughout San Diego County. You are in good hands the moment you pick up the phone and speak to us about the specific details about your case.
Possession of a firearm without a concealed carry permit is illegal and you will be prosecuted for brandishing a firearm under additional open carry violations as well. However, the prosecution must prove beyond a reasonable doubt that the person charged is aware the gun is in their possession at the time. Furthermore, mistake by the complaining witness can be a clear defense. Often times complaining witnesses of crimes do not actually look at the weapon being used and cannot even describe the details of the weapon. This leads to faulty eyewitness testimony and upon cross-examination, it is easy for someone to confuse a firearm with a stun gun in the middle of the night.
There are other variations of penal code section 417 such as not using laser scopes or pointers in a threatening manner with specific intent to cause reasonable fear of bodily harm. However, all these statues carve out the self-defense caveat we discussed earlier.
You are protected against all unreasonable searches and seizures
If you are confronted by law enforcement, you should not consent to any search or seizure of your person without a warrant. If they do not have enough to charge you or hold you under reasonable suspicion of a crime, then they cannot pat you down for contraband or weapons under a terry stop. The stop and frisk of an individual is only limited to the extent of the detention. If your reasonable expectation of privacy is abridged you must not resist arrest but only make it clear that they did not have consent to search so that your lawyer will have an opportunity to file a suppression motion on any items found on your person that was a result of the unlawful search and seizure.
It is important to the officers in your case to procure the firearm in order to prosecute the case. They are fully aware that there is generally no expectation of privacy in things held out to the public and they will use this to their advantage. If they show up to your home investigating an incident that occurred, do not open the door and ask to see a warrant. The purpose behind this search is to effectuate an arrest that will result in you behind bars. You should contact a lawyer immediately if you feel uncomfortable answering any questions by law enforcement.
Your Go-to Lawyer for Defense if Charged with Brandishing in San Diego
It is essential to hire a lawyer that is well versed in the complexities of gun laws in the state of California. It is in your best interest to consult a few lawyers until you find someone who is an active gun enthusiast and who fights to actually defend our second amendment rights. Attorney Vik Monder has been recognized by the San Diego Gun Owners Pack for getting positive results for our military members who are charged with gun crimes in San Diego County, be it brandishing a firearm or unlawful sale of firearms.