PC 417(a) (1) Non-firearm (2) Firearm

PC 417(a) (1) Non-firearm (2) Firearm

Offense

Exhibit firearm (2) or deadly weapon not a firearm (1), in a rude, angry or threatening manner; or unlawfully use in fight

Aggravated Felony (AF)

Not AF: maximum 364 days

Crime Involving Moral Turpitude (CIMT)

Should not be a CIMT but some advocates fear it will be so charged.1Matter of G.R., 2 I&N Dec. 733, 738-39 (1946), citing People v. Sylva, 143 Cal. 62 (1904), comparing assault with a deadly weapon, which the BIA in this case stated requires specific intent to injure, resulting in the BIA finding that offense a “crime of moral turpitude,” to brandishing a weapon, which is a “general intent” crime, and the BIA implied, not therefore a crime of moral turpitude.”. Section 417(a)(2) does not distinguish between “loaded” or “unloaded” firearm, and the BIA stated that “[p]ointing an unloaded gun at another, accompanied by a threat to discharge it without any attempt to use it, except by shooting, does not constitute an assault. There is in such case no present ability to commit a violent injury on the person.”

Other Removal Grounds

417(a)(2) is not a deportable firearms offense, but see Advice.

See Advice if V has domestic relationship or is a minor.

Advice and Comments

AF, crime of DV: While no conviction should be held a COV, and therefore not a crime of DV, the best practice is a plea to rude rather than threatening conduct, especially if V is protected under DV laws.

Firearms: 417(a)(2) is not a firearms offense under the antique firearms rule.2Section 417 is not a deportable firearms offense because it uses the definition of firearms at Pen C § 16520(a). See CALCRIM 980-983 and see Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014), U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). See PC 29800(a). But try to plead to 417(a)(1) in case D is unrepresented and cannot raise this defense.

Child abuse. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

Misd firearms offense is a “significant misdemeanor” for DACA; see Advice at PC 25400.

2021-05-18T15:50:14+00:00Updated May 18th, 2021|