A Guide on How to Expunge Brandishing Charge in CA

Brandishing a weapon in California is a serious offense with the potential for significant legal consequences.

This act, defined as the display of a deadly weapon in a threatening manner, can lead to criminal charges, fines, and even imprisonment.

A conviction for brandishing can have a profound and lasting impact on an individual's life, affecting employment, housing, education, and other critical areas. However, under specific circumstances, it may be possible to expunge it from a criminal record.

This guide will provide a comprehensive overview of brandishing, its potential consequences, and the process of expungement of this conviction in California. Goss Law can also advise on how to expunge money laundering charge in CA.

What Does "Brandishing" Mean Under California Law?

California Penal Code Section 417 PC defines brandishing as the act of "drawing or exhibiting any firearm, airgun, sharp instrument, or any other deadly weapon whatsoever, in a rude, angry, or threatening manner."

This encompasses a wide range of actions, including:

• Pointing a firearm at another person: Even if the firearm is unloaded, the act of pointing it at another individual constitutes brandishing.
• Aggressively swinging a knife: This action, even if not intended to inflict harm, can be considered brandishing under California law.
• Displaying a weapon in a threatening manner: Holding a baseball bat or a hammer above the head in a confrontational situation can be considered brandishing.

Examples of Brandishing

Below are common examples of brandishing:

• If an individual displays a knife or other weapon during a heated argument while driving.
• When a person brandishes a weapon during a heated argument with a family member or partner.
• If someone displays a weapon in a threatening manner during a dispute in a public place, such as a bar or a store.

Criminal Penalties for Brandishing

Brandishing is a serious offense with potential consequences that can significantly impact an individual's life. Common penalties include:

• County jail time: Brandishing a weapon other than a firearm (Penal Code 417(a)(1)) is a misdemeanor with at least 30 days and up to 6 months in county jail. Brandishing a firearm (Penal Code 417(a)(2)) is a misdemeanor with at least 3 months in county jail, and up to 1 year if it was a concealable firearm in a public place.
• Fines: Significant fines may be imposed, adding a substantial financial burden to the convicted individual. The amount of the fine can vary depending on the specific circumstances of the offense and the court's discretion.
• Probation: Misdemeanor probation may include conditions such as community service, drug testing, anger management classes, and other court-ordered requirements.
• State prison: Brandishing can be charged as a felony only in specific situations, such as a loaded firearm on the grounds of a day care center or youth facility while it is open (Penal Code 417(b)), a firearm in the immediate presence of a peace officer (Penal Code 417(c)), or a firearm drawn at someone in a vehicle on a highway (Penal Code 417.3). These can lead to 16 months, 2 years, or 3 years.

How a Brandishing Conviction Can Impact People's Lives

A brandishing conviction can have a significant and long-lasting impact on an individual's well-being, affecting various aspects of their personal and professional lives, such as:

• Employment: A criminal record can create significant obstacles in finding and maintaining employment. Many employers conduct background checks, and a brandishing conviction may deter potential employers from hiring an applicant. This can limit employment opportunities and significantly impact an individual's earning potential.
• Housing: Landlords may be hesitant to rent to individuals with criminal records, including those convicted of brandishing. This can limit housing options and create significant challenges in securing stable housing.
• Education: Higher education institutions may be less likely to admit applicants with a criminal history. This can limit educational opportunities and potentially hinder future career advancement.
• Immigration: For non-U.S. citizens, even misdemeanor offenses can have negative immigration consequences. A brandishing conviction for firearm possession can potentially lead to deportation, denial of immigration benefits, or difficulties in obtaining or maintaining legal status in the United States.
• Professional licenses: Certain professions require licenses, such as those in healthcare, education, and law enforcement. A criminal conviction, including brandishing, may result in the loss of those licenses, significantly impacting an individual's career.
• Personal relationships: A brandishing conviction can strain personal relationships, impacting family dynamics and social interactions.

Is Brandishing a Felony or a Misdemeanor?

Basic brandishing under Penal Code 417(a) is a misdemeanor. It can be charged as a felony only under the specific subdivisions and related sections described above, some of which are "wobbler" offenses that can be charged either way.

Factors That Influence the Decision to Charge Brandishing as a Wobbler Felony or Misdemeanor

Several factors influence the prosecutor's decision to charge brandishing as a felony or misdemeanor, including:

• The nature of the weapon: Felony brandishing applies only to firearms.
• Where and at whom: Felony charges are possible only in the specific situations described above, such as a loaded firearm at a day care center or youth facility, or a firearm in the presence of a peace officer.
• The specific circumstances of the incident: The prosecutor will carefully consider all the circumstances surrounding the incident, including the intent of the individual, the level of threat posed, and the potential for harm, for this decision.

Potential Legal Defenses

Several potential legal defenses may be available to individuals facing brandishing charges, such as:

• Self-defense: If the display of the weapon was necessary to protect oneself or others from imminent danger, the defense of self-defense may apply, but this requires demonstrating that the use of force was reasonable and necessary to prevent imminent harm.
• Lack of threatening intent: If the weapon was displayed unintentionally or without any intent to threaten, the prosecution may be unable to prove the elements of the crime.
• Object not a deadly weapon: If the object displayed wasn't a deadly weapon or firearm as defined by law, the charges may be reduced or dismissed.
• Mistake of fact: In some cases, an individual may be able to assert a mistake of fact defense if they reasonably believed that their actions were justified under the circumstances.

Can Brandishing Charges Be Expunged or Removed from a Criminal Record?

Yes, under certain circumstances, it may be possible to expunge a brandishing conviction from a criminal record in California.

What Is Expungement in California?

Expungement (a dismissal under Penal Code 1203.4) is a legal process that lets a person withdraw their plea and have the case dismissed. It does not seal the record. The record stays public and shows that the case was dismissed. Record sealing is a separate process (for example, under Penal Code 1203.425 for convictions and Penal Code 851.91 for arrests). Goss Law can provide insight on how to expunge vandalism charge in CA as well.

However, it's important to note that this legal action doesn't erase the conviction from all records. Law enforcement agencies and courts will still have access to them.

Eligibility Requirements for Expungement in California

To be eligible for expungement in California, individuals must meet the following requirements:

• Completion of probation: If the conviction resulted in probation, the terms of probation should generally be completed. However, the court has discretion to grant relief even if probation was not fully completed.
• No current charges: Individuals must not have any pending criminal charges at the time of the expungement application.
• Restitution: Unpaid restitution or restitution fines do not bar relief. The court cannot deny the petition for that reason.
• Timeframe: The specific timeframe for eligibility for expungement varies depending on the type of conviction and other factors. Generally, there may be a waiting period before an individual becomes eligible to apply for expungement.

The Benefits of Expunging a Misdemeanor or Felony Conviction

Expunging a criminal record can offer numerous benefits, including:

• Improved employment opportunities: A dismissed conviction can significantly improve job prospects and increase earning potential.
• Enhanced housing options: Landlords may be more likely to rent to individuals with cleared records.
• Increased educational opportunities: Colleges and universities may be more receptive to applicants with cleared records.
• Reduced anxiety and stress: Expungement can provide individuals with a sense of relief and closure.

Step-by-Step Process of Expunging a Brandishing Conviction in California

These are the steps convicted individuals are required to complete during the expungement process:

1. Determine eligibility:
   
   • Carefully review the eligibility requirements for expungement.
   • Gather all necessary documentation, such as court records and probation records.
2. File the petition:
   
   • Submit a petition for expungement to the appropriate court.
   • Include specific information about the conviction and the reasons for seeking expungement.
3. Court hearing:
   
   • Attend a court hearing where the judge will review the petition and make a decision considering the eligibility requirement.
   • Provide additional information or documentation, if required.
4. Order of expungement:
   
   • Receive the order of expungement if the petition is granted.

Is It Necessary to Work with a Criminal Defense Attorney?

Working with a Sacramento expungement attorney is highly recommended throughout the entire expungement process. Here's why:

How a Criminal Defense Attorney Can Help with the Expungement of a Brandishing Charge

A criminal defense attorney can:

• Evaluate eligibility for expungement and guide convicted individuals through the process.
• Gather necessary documentation for this process, such as court records and probation records.
• Draft and file the expungement petition on convicted individuals' behalf, ensuring that all necessary information is included and that the petition complies with all legal requirements.
• Present the petition at the court hearing and ensure their clients' rights are protected.
• Identify and address any potential challenges to the expungement application and develop strategies to overcome them.
• Negotiate with the court on their clients' behalf to achieve the best possible outcome in their cases.

Contact Goss Law for Legal Representation

Those looking to expunge a brandishing conviction in California should seek legal counsel from a criminal defense attorney.

Goss Law offers free consultations, and attorney Blair Goss can provide the legal representation you need and go to court with you. Contact Goss Law today!