What is a Firearm Crime Under California Law?
California Penal Code 16520 defines a firearm as a device intended to be used as a weapon, from which a bullet is discharged through a barrel, by the force of an eruption or other forms of combustion. California law prohibits some people from possessing a firearm. They include:
- Any person sentenced of a felony crime in any jurisdiction In California, felony crimes carry maximum possible sentences (including life imprisonment in some instances). Apart from the sentence and heavy fines, those convicted with a felony incur harsher consequences than in cases of misdemeanors. Under the California three strikes law, felony convicts have limited access to certain kinds of licensing which include possession of a weapon or explosive.
- A person who suffers from mental illness The Gun Violence Restraining Order Law prohibits a person who poses a danger to others or him/herself from having legal access to firearms. Mentally ill people are considered capable of harming themselves or other people, thus, are legally prohibited from accessing or using firearms.
- Minors PEN 25400 PC allows 18 years and above citizens legally allowed to own a firearm, or transport a gun provided it is not loaded. Anyone under 18 years is prohibited from owning and may be jailed in a juvenile prison if found in possession of a firearm.
- People who pose dangers through the influence of narcotics In California, anyone who is suspected to pose dangers to himself or other people because of the use of drugs (narcotics) are legally exempted from owning firearms.
- Anyone with multiple sentence records Under the Penal Code section 417, it is illegal to flash a weapon publicly, disturbing another person’s peace, but in exclusion of instances where the act is for self-defense. If such a person is sentenced, high chances are that they won’t have legal access to firearms after subsequent convictions.
- A person sentenced to misdemeanor offenses Any person imprisoned of crimes like domestic violence or another form of violent hate crime offenses, or usage of firearms unlawfully is prohibited from purchasing or possessing any firearm. But California law allows possession of a firearm after a period of ten years after conviction.
How Should I Legally Own and Operate a Firearm?
A firearm is a portable gun, pistol, or any other rifle. Under the law, 18 years and above citizens can possess or purchase a rifle or shotgun. Possession of firearm depends on whether the law prohibits you from owning them. If you are not forbidden, you legally have the right to carry or keep the gun in your apartment or at your working place that you run as the owner. To legally move a gun from one area to another, it has to be in a sealed container and unloaded as required by the California law.
Crime Against California’s Carrying a Concealed Firearm Law
Under Penal Code section 25400 PC, it is an offense to carry a concealed weapon. The weapon could be hidden in a number of ways:
- Carrying a firm while using any vehicle under your direction or control;
- Hiding the firearm upon your person, for example, carrying a revolver hidden in your jacket;
- Carrying a firearm in a vehicle, and you are an occupant of the said vehicle.
There are three elements or requirements of the crime under California Penal Code section 25400 PC:
- You were aware of the presence of the concealed firearm & you concealed a firearm in a van or in your pocket & the firearm was substantially concealed.
The law means that you substantially can be in possession of a concealed weapon which does not matter if the weapon is hidden on your person or in anything you are grasping. Also, the law requires that you should be in a position to know the existence of a firearm. By this, it prevents a person to be wrongly charged or accused of a crime he/she was not in knowledge of committing.
Under PEN section 25400, California law includes the followings as examples of firearms: pistols, handguns, rifles, revolvers, shotguns, and Tasers.
How Am I Punished for Moving a Concealed Weapon?
Under California law, moving a concealed weapon is a crime. By violating Penal Code section 25400 PC, it is regarded as a misdemeanor where if convicted, you can potentially get one-year imprisonment in a county prison or $1,000 in maximum fines. If the prosecutor finds out that you intended to use the concealed weapon, the defendant’s intent will automatically weigh into the prosecutor’s favor.
You can also be charged as a wobbler crime either a felony or a misdemeanor. If you are convicted with a misdemeanor, you face a one year in county jail with the addition of a maximum of $1000 fine or you can face just the maximum fine only.
If one is sentenced as felony convict, they may face a trial period with up to 1 year of county jail, or sixteen months, two to three years in the county jail which may have an additional fine of a maximum of $10,000.
Also, if already faced conviction of any felony or any other California offense, and you are convicted under Penal Code section 25400 PC violation you can serve a minimum of three months sentence in the county jail. If in any case, you face the judgment of any concealed gun violation and previously faced conviction of: incursion with a dangerous weapon, fire at an occupied residential house, or flourishing a weapon; you are to be confined between three and six months in county jail.
In addition to the above penalties that one attains from the charges, you may lose your weapon.
California Crime of a Felon with a Weapon
Penal Code section 29800 PC, California felon with a gun, prevent or prohibit the following group of people from possessing a firearm:
- Those convicted as felons;
- Any person who has been sentenced of misdemeanors; A person who is addicted to narcotic drugs.
In inclusion to the above group, the law also prohibits ownership of a firearm to:
- Illegal aliens;
- A person who has been released under dishonorable conditions from the federal work like the military;
- Anyone who has renounced his or her citizenship; Fugitives.
If you possess, own or receive any firearm, and you fall in one of the above categories, your rights to own a gun may be revoked for life, or it can be reversed after a minimum of ten years.
Is it a Crime to Carry a Loaded Gun in Public?
Penal Code section 25850 PC prohibits moving a loaded weapon in public and may lead to serious penalties if found guilty. In most cases, it is regarded as a misdemeanor but still, one can be sentenced with a felony if the prosecutor presents aggravating circumstances.
Prosecutor can arraign you for carrying a loaded gun in a van or public place even if the weapon is inoperable. A loaded firearm, to be proven by the prosecutor, must have an unexpended cartridge or shell which consist of a case that holds a charge to shoot and a peace officer has examined it and proven that it is, indeed, loaded.
In California, it is unlawful to publicly carry a firearm either loaded or not except that you have a firearms license.
Under Penal Code section 25850, a person has to be in the knowledge that they were moving a loaded gun to be convicted. In a case where you were not aware that your gun was loaded, and you were carrying it in your person or in the car, then you are not culpable of this crime.
The sentence for carrying or moving a loaded gun is similar to the penalties one attains for moving a concealed weapon under California Penal Code section 25400.
This offense also leads to the deportation of legal immigrants or alien, if convicted.
California Ban on "Generally Prohibited Weapons"
Penal Code 16590 PC prohibits manufacturing, selling or possessing dangerous weapons. These weapons are illegal to possess even in privacy, and regardless of a permit ownership to carry a concealed weapon.
Some of the illegal weapons in California are:
- Concealed dirks or daggers (PEN section 21310)
- Cane swords (PEN section 20510)
- Lipstick case knives (PEN section 20610)
- Shuriken (PEN section 22410)
- Air gauge knives (PEN section 20130)
- Ballistic knives (PEN section 21110)
- Can guns (PEN section 24410)
Under the California law, possession of an illegal weapon is regarded as a “wobbler” transgression.
If convicted of charges under Penal Code 16590, you face losing the weapon and; (a) If sentenced of a misdemeanor, you face an utmost sentence of 1 year in county jailhouse, a maximum fine of $1000 or both fine and jail; (b) If convicted of a felony violation, you face sixteen months, 2 or three years in prison, a $10000 maximum fine, or both fine and jail
Offense of Possession of Firearms in Restricted Places
According to the California law, there are places where one is forbidden from possessing a weapon as follows:
Penal Code Section 626.9 PC, possession of a firearm on school grounds This offense is punishable under California Penal Code section 626.9 California Gun Free School Zone Act. Possession of a firearm surrounding 1,000 feet from a school or a discharge or an attempt to shoot in a school area zone it is a violation of the Penal code.
This offense is punishable by seven years in county prison. 5.2 Penal Code 171.5 PC, Airports and Passengers Vessel Terminals. According to the law, it is unlawful for any person to possess a weapon knowingly, within any sterile field of an airfield or terminal. Some of the items as listed by the law are; any firearm, knife, any hand grenade or any unauthorized tear gas weapon. The law does not apply to any authorized personnel either by the state or the company.
Violation of Penal code section 171.5 PC, a person may be sentenced for a period not exceeding six months imprisonment in county jailhouse or $1000 maximum fine or both jail time and fine.
Crime under Penal Code Section 12022.4, “Aiding or Abetting a Felony with a Firearm”
According to this section, a person who during a commission or attempted commission of a felony, offers to furnish a firearm to the person to commit a felony, is convictable under the Penal Code. In inclusion to the sentence for the felony (underlying or attempted), you will receive an additional term of one, two, or three years in state prison.
What Charges are related to PEN Section 245(a) (2) pc, “Assault with a Firearm”
Under this section, it prohibits assaulting someone with a firearm. It does not necessarily point out that you actually injured someone, what required is for someone to be charged is just an attempt to commit. You do not need a specific target or victim to be charged with violating this law.
This offense is a wobbler where you may be sentenced with either a felony or misdemeanor.
Does Shooting in an Inhabited Dwelling or Occupied Car Amount to a California Crime?
Under California Penal Code section 246 PC, shooting at an inhabited dwelling or occupied car is a felony offense. A person can be sentenced to a maximum seven years imprisonment. If the victim suffers great injuries or dies, the defendant could face an additional 25 years imprisonment or even a life imprisonment. Also, conviction by felony for this crime may ban you from owning or purchasing a firearm.
Legal Defenses to Firearm Charges
The defense attorney can rely on various arguments in the defense against firearm charges. The charges can vary from the offense committed. The arguments include (but not limited to):
You Were Legally Permitted to Carry a Firearm.
For one to prevail on this defense one has to prove that he or she has a valid license. If you have a license or a permit for carrying firearms under the California law, then carrying a gun does not violate the law.
You Were Not Aware You Were Carrying a Firearm.
If you do not realize that you were carrying a firearm, then you are not culpable of violating Penal Code 25850 PC. This applies when the gun is not actually on your person but in a bag or any other thing you are carrying. The defense can easily prove that you were not aware of the firearm.
This may help the defense to override the criminal charges and they may be dismissed. If police misconduct is suspected in your case, the defense can run a motion to find out if other people have made a complaint about the officer in the past. If it is found, the prosecutor or the judge can dismiss your charges.
Examples of misconduct incorporate:
the police lie in the report he or she gave; your confession was coerced; or the police put a firearm on your person or in your van or anything you were carrying.
The Firearm Was Not Loaded.
Under Penal code 25850, it is an offense to carry a loaded firearm. The defense can reason that you have not committed the offense since the firearm was not loaded and prove that you had a legitimate or reasonable reason that the gun was not loaded, you may be able to prevail based on a “mistake of fact” defense.
You Were Carrying The Gun in Self-Defense.
Under California Penal Code 26045 PC, California self-defense law permits you to carry a gun if you reasonably believe you are in danger or against another person who has been found to pose a threat on you
The Gun or The Firearm Was Locked in a Container.
Under California Penal Code section 25400 PC, it allows someone to carry a concealed gun in a locked container or a trunk in the vehicle if you are legally entitled to own or possess a firearm.
The Firearm Was Procured During an Illegal Search.
The fourth amendment constitutional rights protect unreasonable searches and seizures in California. For a search to be conducted in your place or anything you own, an officer must have a valid California search warrant or probable cause, or he or she must have your consent to conduct a search. A weapon found and confiscated during an illegal search would amount to an element of evidence being dismissed.
Find a Vista Firearm Crime Attorney Near Me?
If you require a qualified and experienced attorney or a law firm who can escalate the above arguments to defend you against the above charges as well as other firearm crimes. Vista Criminal Attorney Law Firm has attorneys who can successfully defend you and take you through to all phases of court. Please call 760-691-1551 to speak to one of our criminal defense attorneys today.