District Court Ruling Clarifies Whether a Victim’s Fear is Necessary to Prove Brandishing Charge

Case Alert 
By Ray Hill 
Professor Emeritus, Santa Rosa Junior College 

Brandishing a firearm at an occupied motor vehicle does not require that a person (victim) experience fear (417.3 P.C.)  

Facts: While stopped at a traffic signal in Orange County, the defendant pointed a handgun in the direction of another driver who had taken a picture of the defendant’s license plate (the defendant had reportedly been driving recklessly). The defendant had pulled up adjacent to the victim’s passenger side and displayed the handgun. He left the scene, and the other driver (the victim) called 911. Subsequently, officers went to the defendant’s home and recovered a handgun in his vehicle. The defendant was charged with felony brandishing a firearm at a person in a motor vehicle. 

An Orange County trial court magistrate granted the defendant’s motion to dismiss the brandishing count, reasoning there was no evidence the victim actually experienced fear as a result of the defendant’s action. 

Held: 4DCA reversed the trial court and ruled the felony brandishing count should be reinstated, determining that 417.3 P.C. does not require proof that a victim subjectively or objectively experience fear. The statute only requires that the defendant’s conduct “would likely cause a reasonable person to experience ....