Citizens residing in California can obtain licenses and permits to own a firearm, provided they follow the statutory regulations that restrict firearm use to avoid illegal activities. Despite the availability of such legal licenses, most gun owners often find themselves facing charges for a gun offense, depending on the circumstances of their case. The California Penal Code contains several provisions in different sections, with each prohibiting unlawful firearm use. It is crucial to learn about these gun offenses to keep off trouble, mainly because some of the charges you may face involve mere possession, even if you caused no harm. Moreover, understanding each gun offense's overview will give you a guide to developing several defenses based on the unlawful action you get involved in.
Apart from acquainting yourself with the penal code provisions on gun offenses, you also need to get in touch with a criminal defense attorney who is conversant with defense cases on gun offense charges. In doing so, you will build a persuasive defense in any trial you face, regardless of the charges pressed against you. Seeking criminal defense services from the Orange County Criminal Defense Attorney Law Firm is an excellent first step to understanding the nature of gun offense charges you face. We dedicate ourselves to providing credible and comprehensive information concerning your case and preparing strong legal arguments to counter the prosecution built against you during the trial.
The Classification of Gun Offenses
Any criminal charge categorized as a gun offense should meet several requirements to ensure that the defendant faces a fair trial. The prerequisites to be satisfied dictate that the defendant's unlawful actions must include the possession or handling of a firearm, creating a possibility of injuring, assaulting, or violating set restrictions.
Consequently, the offenses mentioned in different sections of the Penal Code must encompass any of the primary elements before a prosecutor can enter gun offense charges against the defendant. Sometimes, the prosecution must prove the criminal elements will depend on the type of weapon used, the location of the unlawful possession or handling of the gun, and whether the defendant injured any victims present during the illegal operations. The primary gun offenses listen in the California Penal Code are:
Possessing a Gun or Another Firearm in Unauthorised Areas
Possessing a firearm in some restricted regions may warrant your arrest, translating to facing gun offense charges. Therefore, it is essential to identify the areas that restrict gun possession and use because any violation of the regulations will automatically attract criminal charges. The penalties differ depending on the location you carried your gun to, with the possibility of facing additional gun possession punishments in high-security areas. The following are some of the areas where gun possession will attract criminal charges:
Possessing a Gun Within a School
Following section 626.9 of the Penal Code, it is unlawful to possess a gun or firearm within a specified distance of 1,000 feet of a school. When charged with gun possession on school grounds, the prosecutor must prove several elements for the judge to find guilty, based on the statutory provisions. He/she may also rely on evidential sources such as witness testimonies, school surveillance footage, and police reports taken down after your arrest to prove the allegations' accuracy.
Firstly, the prosecutor must show that you violated the 1,000 feet radius restriction, and proceeded into the school grounds with full knowledge of your firearm possession. It is important to note that the definition of a school includes any public or private learning institution.
Additionally, gun possession in any teacher's quarters within a public or private university amounts to the offense because the teacher's residence is within school grounds. Thus, you will be answerable to criminal charges even if you did not directly aim to enter the school's learning section.
Lastly, there must be sufficient evidence to prove that you tried to discharge the gun you possessed and that you did not take anyone's safety into account as you attempted to discharge the weapon.
If the prosecutor succeeds in proving all the elements of crime, you will face a seven-year county jail sentence.
Gun Possession in an Airport
Under section 171.5 of the Penal Code, it is unlawful to possess a firearm, BB device, any rounds of ammunition or equipment imitating a gun within an airport. When handling your case, the prosecutor must prove that you were aware of possessing any of these firearms and that you were within a passenger terminal or any other airport location.
Similar elements of the offense attract a different charge under section 171.7, whereby the possession of a gun within a public transportation facility is unlawful as well. In this case, the mentioned transportation facilities include trains, subways, and buses, among others.
Both offenses attract misdemeanor charges. Consequently, you may face a maximum sentence of six months in county jail or pay a $1,000 fine.
Assaulting Using a Firearm
The penal code provision found under section 245(2)(a) makes it unlawful to assault a victim using a gun for any purposes. Like other gun-offense penalties, you may receive different punishments depending on the weapon used to assault a crime victim and the position that your assault victim held.
An important point to understand is that the term assault refers to any attempts you make to cause someone to reasonably believe that he/she could face impending danger. Such a belief may arise from the way you conduct yourself, and the use of an instrument that creates the possibility of harming the victim. Thus, the prosecutor will have shown that you attempted to injure another by firing a stray bullet, aiming at the victim, or trying to load it to shoot at the victim.
Moreover, assault charges may be entered against you even though the victim suffered no actual harm. The main point for the prosecutor is to prove that your actions could harm the victim, or make him/her fear facing injuries or severe bodily harm. The prosecutor does not also have to prove a direct victim of your actions, especially if you drew the gun in a public gathering or any other area with many people present.
The possible penalties vary depending on whether you used a:
In this case, your assault charges will amount to a wobbler crime, meaning that you could face felony or misdemeanor penalties. The variation depends on the severity of your assault, and whether your actions resulted in consequent damage as the crime victims tried to avert the danger.
As a felony, you could receive a state prison sentence for two to four years maximum.
charges will land you in the county jail for a minimum of six months that could be enhanced to a one-year jail sentence.
Machine Gun, 50 BMG Rifle or an Assault Rifle
Undertaking criminal assault activities using such advanced firearms inevitably attract more severe consequences, with the offense falling under felony charges. Consequently, you are eligible for a sentence ranging between four, eight, or twelve years in state prison.
Additionally, assault using a semiautomatic gun will lead to hefty penalties, mainly because it could have devastating consequences for the crime victim. The use of a semiautomatic pistol will get you a three to nine-year sentence in state prison.
Another category of assault using a firearm focuses on assaulting school personnel when the victim is undertaking professional duties. For example, if you attack a teacher whom you ought to have known was a school employee, the prosecutor will build an assault case against you. The principle element to prove is that you were aware that your victim was a school employee and that you assaulted the person during his/her daily engagement in school duties. Thus, your criminal activity is likely to occur within the school environment, exposing the assault victim and students to a traumatic experience.
Consequently, the offense is a wobbler crime that may attract misdemeanor or felony charges. Facing felony charges leads to a prison sentence for four to eight years in state prison. Alternatively, you may face misdemeanor penalties, leading to six months to a year in county jail.
Brandishing a firearm is similar to assaulting using a gun because both offenses involve intimidating a victim using a weapon. However, a distinction is drawn between the attacks under section 417 of the Penal Code. In brandishing a gun, you do not necessarily attempt to inflict injury or harm to your victim.
The prosecutor's main elements to prove should show your action of drawing the gun and displaying or exhibiting it in a threatening manner that may come off as angry or rude. Therefore, the offense's primary focus will be that you used the gun to exhibit intimidation to the receiving party.
There are varying degrees of punishment disposable to the crime, depending on the actions you engaged in. If you brandished your weapon to any victim in general, the offense falls under the misdemeanor category, warranting punishment of a maximum of one year in county jail, or payment of a $1000 fine.
However, if you brandish your gun to police officers to try and resist arrest, the penal code provisions enhance the punishment into a felony. Subsequently, you will face a state prison sentence, ranging between two to four years.
The offense may also fall under the wobbler crime category for brandishing your gun against specific groups of people. To qualify for a wobbler crime brandishing charge, the prosecutor must prove that you engaged in any of the following activities:
- You displayed your gun in a threatening manner to someone inside a vehicle.
- You exhibited your firearm rudely or angrily in front of a peace operations officer.
- You revealed your weapon in a day-care facility during working hours when children were bound to be present.
If you are guilty of any of the listed criminal activities, you could face misdemeanor penalties and go to the county jail for one to three years.
As a felony, you may face a prison sentence that requires you to serve time for sixteen months to three years in a state prison facility.
Causing Bodily Harm When Brandishing a Firearm
Moreover, you may engage in the advanced version of the offense of brandishing a firearm by causing bodily harm to the crime victim. The Penal Code provides for this as a different offense altogether under section 417.6, mainly because, in this case, you will not only make threats using the weapon but also inflict injuries on the affected party.
The prosecutor must prove several elements to distinguish this offense from the original crime, to ensure that the aspect of causing harm to a victim comes out clearly. Firstly, he/she must prove that you brandished your gun, either by exhibiting or drawing it in a rude demeanor to threaten those around you.
The second and most significant element to prove is that your weapon's act of brandishing caused severe bodily harm to the victim of your crimes by firing the gun, hitting the victim with it, or any other violent actions. Thus, the person may have suffered bone fractures, damaging of vital organs, or even irreversible body disfigurement.
Apart from this, the prosecutor also needs to prove that your action was willful and deliberate to prove that you possessed the criminal intention. Therefore, your defense attorney may rely on the counterclaim of an accidental infliction of injury to discount the prosecutor's allegations.
The wobbler crime attracts different punishments depending on the circumstances of your case. A misdemeanor charge will land you in the county jail for up to one year. On the other hand, felony punishment results in a maximum prison sentence for up to three years.
Gross Negligence in the Discharge of a Firearm
As a firearm owner, the law expects you to exercise gun control in a reasonable manner that does not expose others to avoidable risks. Consequently, firing or negligently discharging your gun will attract severe penalties because of the possible risk exposed to unknowing individuals. Additionally, the offense covers the negligent discharge of BB devices because they can cause significant harm to victims. A BB device shoots projectile bullets, similar to other standard guns like pistols.
The prosecutor should prove that your action to discharge the firearm was voluntary, meaning that it was not accidental. Evidence to support this may come from witness statements or any video footage captured as you discharged the firearm negligently.
The second element to prove is that your actions were negligent. The term grossly negligent involves acting in such an unprecedented manner that no reasonable person would think of doing. Thus, your efforts should include the complete disregard of human life and safety. For example, if you fire your gun in a crowded gathering, you will have acted in a grossly negligent manner for disregarding the safety hazard you create for the victims present.
Your actions may or may not cause a victim's injury, depending on the accuracy of your shots. Nevertheless, the prosecutor does not need to prove that anyone was hurt because of your actions. It is sufficient evidence to prove that you disregard other's safety by discharging the gun and that your negligent conduct could potentially harm a victim.
The consequences of your actions may attract a felony charge, whereby you will face a sentence of sixteen months to three years in jail. As a misdemeanor, you will face a one-year jail sentence. An important point to note is that the discharge of a BB device only attracts misdemeanor charges and can not be a wobbler crime.
Shooting an Occupied Dwelling Place
Anyone who shoots at an occupied building, vehicle, tent, or house is guilty of a gun offense following section 246 of the Penal Code. During your criminal trial, the prosecutor will rely on specific factors to make a convincing case against you. For example, shooting an occupied dwelling place does not require the defendant to enter the building or shelter. It is enough for you to shoot within the vicinity of the dwelling place for the sake of entering a charge against you.
Additionally, you will also be guilty of the crime for aiding or abetting another person to shoot. Thus, you do not have to be the principal offender who fired a shot to face charges, as long as you helped the person commit the offense.
The crime attracts severe penalties, mainly because it violates property and liberty to enjoy personal space. Thus, you may face a sentence of three to five years in state prison for shooting an occupied dwelling place.
Conversely, a similar charge exists under section 247(b) prohibiting the shooting of an unoccupied building, aircraft, or car. The prosecutor's elements to prove are identical to the offense under section 246 of the penal code. However, shooting any of the mentioned unoccupied areas amount to a wobbler crime, depending on where you fired your shots.
Shooting an unoccupied dwelling place or an abandoned car is a wobbler crime that may result in:
- Up to one year in county jail as a misdemeanor.
- Up to three years in state prison as a felony.
Shooting at an uninhabited aircraft is a felony in California, resulting in sixteen months to three years in state prison.
The Effects of Gun Offense Convictions
Apart from the jail term sentences and fine penalties issued for the various gun offenses, you are likely to face other consequences for your actions that often limit your liberties in the future. Some of the effects of facing gun convictions include:
Facing Sentencing Enhancements
Some of the criminal activities under the gun offenses category would attract sentence enhancements, primarily if you possessed a gun to help you commit a felony. Therefore, most defendants will receive additional punishment for using their weapons to enable illegal operations. For example, if you brandished your gun to scare a victim into letting you get away with carjacking, you could face additional sentences.
Relinquishing the Right to Own Firearms
Additionally, you may find it challenging to acquire licenses to own firearms in the future because of an existing gun offense criminal record. Subsequently, apart from having your current gun confiscated upon conviction, you may also be unable to purchase another firearm upon release from jail.
Defenses Available for Gun Offenses
Your criminal defense attorney plays a significant role in preparing and presenting defenses for any of the mentioned gun offenses, depending on unique case circumstances. Therefore, we recommend working with your lawyer closely to provide all the vital details that help in establishing a persuasive defense during the trial. Some of the arguments you may present are:
The Arresting Police Engaged in Police Misconduct
Such a defense works well where you genuinely did not engage in any illegal activities. Promoting the officers handling your case to plant evidence forces you to give self-incriminating testimonies or make false allegations in the police report. To do this, your defense lawyer should gather adequate evidence to back your claims. If the presentation is successful, the entire case will be struck out of court to effect an unfair trial.
You Were Unaware of Possessing a Gun
Sometimes, the defendant may not have known that he/she carried or possessed a gun until it is too late. For example, if you are a licensed gun owner who kept the firearm in your car most times, you may find yourself in trouble when making a trip to the airport to pick up a loved one. Despite your genuine claim, the airport authorities may hand you over to the relevant officers who will then file a case against you. Therefore, it is up to your lawyer to prove that you genuinely did not know that you carried the gun with you.
It was Impossible to Harm Anyone With Your Gun
The defense works for specific cases, including an assault charge. Since one of the main elements to prove is that your actions could lead to a victim's injury, you may raise the defense to show that you could not cause such harm in reality. For example, you may have used an unloaded gun with the safety feature during the alleged assault, which means that there was no possibility of the gun firing. If presented accurately, this defense may absolve your charges or reduce the penalties you will face significantly.
Find a Criminal Defense Attorney Near Me
Most gun offense cases involve misconstrued events that lead to the unfair arrest of a defendant. The result of such an occurrence may lead to facing criminal charges for an offense you did not plan to commit. At the Orange County Criminal Defense Attorney Law Firm, we understand the complicated nature of gun crimes and work hard to present the best defenses. If you need a defense attorney in Orange County, California, call us today at 714-740-7848.