Gun Crimes

California’s Penal Code section 25850 outlaws the carrying of a loaded firearm either on your person or in your vehicle. In order to sustain a conviction under this section, the prosecutor must show that 1) a loaded firearm, designed to be used as a weapon was on the defendant’s person or in his vehicle, 2) the defendant knew he was carrying a firearm, and 3) at the time, the defendant was in a public place. A firearm is loaded under the law if an unexpended cartridge is placed in the firing position or in an attached clip or magazine. Carrying a loaded firearm is punishable as a misdemeanor by up to one year in county jail and a $1000 fine. A number of factors however, raise this crime from a misdemeanor to a felony punishable by up to 3 years in county jail pursuant to PC 1170(h), including whether the firearm was stolen, unregistered, or used in a crime, or whether the defendant suffered a prior conviction, is a felon, or is alleged to be a gang member or a member of another prohibited class of persons.

California’s Penal Code section 25400 outlaws the carrying of a concealed firearm either on your person or in your vehicle. In order to sustain a conviction under this section, the prosecutor must show that 1) a firearm, designed to be used as a weapon, with a barrel less than 16 inches in length was substantially concealed on the defendant’s person or in his vehicle, and 2) the defendant knew he was carrying a firearm. Carrying a concealed firearm is punishable as a misdemeanor by up to one year in county jail and a $1000 fine. A number of factors however, raise this crime from a misdemeanor to a felony punishable by up to 3 years in county jail pursuant to PC 1170(h), including whether the firearm was stolen, unregistered, or used in a crime, or whether the defendant suffered a prior conviction, is a felon, or is alleged to be a gang member or a member of another prohibited class of persons. Carrying a concealed firearm is not a lesser included offense of carrying a loaded firearm so these crimes are frequently charged together potentially subjecting a defendant to twice the penalty. This law necessarily has some carve outs. For instance it is not illegal to have a concealed firearm in your home or business or in your vehicle’s trunk or another locked container not your glove compartment.

California’s Penal Code section 26350, which went into effect in 2012, now prohibits even the open carrying of an unloaded firearm in public which is punishable as a misdemeanor by up to one year in county jail and a $1000 fine.

The California Penal Code is rife with other laws that prohibit possession of weapons in certain places and others that prohibit the possession of certain types of weapons at all.

The law treats firearms even more seriously where they are used. California Penal Code section 417 defines brandishing a firearm as drawing or exhibiting a firearm or other deadly weapon in a rude, angry or threatening manner. Brandishing a firearm is a wobbler, meaning that it can be charged as either a misdemeanor or a felony. Where charged as a misdemeanor, brandishing is punishable by a minimum of 30 days in county jail but up to one year and a fine of $1000. Where the crime occurs on the grounds of a child care facility, in the presence of an officer engaged in his duties, or against the occupant of a vehicle, it can be charged as a felony carrying up to 3 years in county jail pursuant to PC 1170(h).

The use of firearms also aggravates other crimes, the most severe of which is California Penal Code section 12022.53. Under this law, if a firearm is used in the commission of certain very serious felonies including the attempt of those felonies, in addition to the punishment for the underlying offense, a defendant can be punished by 10 years in state prison for using the gun, or 20 years in state prison for firing the gun, or 25 to life for killing or seriously wounding someone with the gun.

A number of specific defenses are available to someone charged with a firearm offense. In many instances, the discovery of the firearm may have been the product of an illegal search or police might have engaged in overreaching and illegal conduct in order to discover the firearm. A good defense attorney will recognize these situations and file a motion to suppress evidence or a Pitchess motion. In addition, many firearm offenses are specific intent crimes, requiring that the prosecutor prove beyond a reasonable doubt that you had knowledge that you possessed the weapon. Raising the specter of a reasonable doubt with respect to a specific intent crime is the job of a skilled criminal defense attorney.

The information contained on this website represents opinion only and is not intended to, nor should be relied on as legal advice of any kind. Should you wish to consult with an attorney, contact an attorney at the Law Office of Jesse Terrell at (323) 638-4712.
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