California man seen pointing AR-15 at protesters arrested, charged with assault

[RevolverRob]

I would like to point out that California, for non-peace officers, is a True Man, Old West state with no duty to retreat.

Huh, I was clearly mistaken. No duty to retreat, but also no stand your ground - it appears when you’re not on your home property, there is the standard burden of “reasonable” for the use of deadly force.

Does California consider brandishing to be equivalent of deadly force?

[RevolverRob]

Yeah, that's PC 245 in CA. No matter what your feels are.

Wow, I just went and looked up that chapter. If convicted under 245(3), assault with a machine gun, assault weapon, or .50 BMG rifle, this guy could serve anywhere from 4 to 12 years in state prison.

Assault with a simple firearm (non-AW) is WAY more lenient by comparison (245(2) for those wondering).

[paherne]

Huh, I was clearly mistaken. No duty to retreat, but also no stand your ground - it appears when you’re not on your home property, there is the standard burden of “reasonable” for the use of deadly force.

Does California consider brandishing to be equivalent of deadly force?

Brandishing is not deadly force in CA.

The relevant CA Penal Code section is:

417.(a) (1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.

(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.

(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer’s uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years.

(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.

(e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(f) As used in this section, “public place” means any of the following:

(1) A public place in an incorporated city.

(2) A public street in an incorporated city.

(3) A public street in an unincorporated area.

[RevolverRob]

Brandishing is not deadly force in CA.

The relevant CA Penal Code section is:

417.(a) (1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.

(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.

(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer’s uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years.

(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.

(e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(f) As used in this section, “public place” means any of the following:

(1) A public place in an incorporated city.

(2) A public street in an incorporated city.

(3) A public street in an unincorporated area.

Hmm, well he should try to plead out to brandishing and serve 3-6 months in county. Maybe that will give him some time to sit and think about his whole set of decisions leading up to this incident and use his brain better in the future. (One can hope).

[AlwaysLearning]

I would like to point out that California, for non-peace officers, is a True Man, Old West state with no duty to retreat.

Indeed. Here are the California Criminal Court jury instructions regarding self defense by an aggressor/initiator of a fight. What's especially notable about California is that a person who starts a fight (!) but chooses to clearly withdraw, can then use deadly force to protect themselves from an advancing opponent. I've been told by very experienced criminal defense attorneys that when they want to know a summary of the law for a particular criminal law section, they look at the official jury instructions.

The original case on this issue is People v. Hecker, 109 Cal. 451 (1895). As far as I can tell this is still good law in California. As a California Supreme Court case it's unlikely to be overturned.

Once upon a time, California gun laws were pretty reasonable -- a person could carry a loaded gun in their car through the early '80s, and in many rural places it was tacitly accepted until pretty recently, despite being illegal. Nowadays, of course, most of the rural parts of CA, as well as the more conservative leaning urban counties (Orange, San Diego, Sacramento) widely issue CCW permits.