According to California PC 25850, it is a criminal offense to carry a loaded firearm in public or a vehicle. You could face charges under this statute if you carry a loaded gun in your person or the car while in a public place. A violation under PC 25850 is a misdemeanor. However, if aggravating factors exist, the offense becomes a wobbler. If the prosecutor accuses you of this crime, Orange County Criminal Defense Attorney Law Firm can help you fight the charges.
Elements of the Crime
You could be guilty under PC 25850 if you drive in a public place with a loaded firearm in your vehicle. If you walk in the streets, through a park, or in any public place with a gun in your bag, you could be guilty of carrying a loaded firearm. Similar charges would apply if you walk or drive in the neighborhood with a loaded gun in your pocket.
For the prosecutor to convict you of carrying a loaded firearm, he/she must prove several elements of the crime:
- It should be evident that you carried a firearm in your person or your vehicle.
- The prosecutor should prove that you were aware that you were carrying the firearm in your person or vehicle.
- You must have had the firearm in a public place or street or in any other area where the discharging of a gun is illegal.
According to the Law, any place that is open to general for common use and accessible by any person is a public place.
Definition of a Firearm
Many questions arise regarding the meaning of firearms, according to PC 25850. Any device from which you can discharge a projectile by an explosion through a barrel is a firearm. The device must be designed for use as a weapon.
Some of the items that qualify as firearms include tasers, pistols, shotguns, revolvers, and rifles. In the context of the Law, devices like BB guns and pellet guns do not qualify as firearms.
A firearm is loaded if it has an unexpected shell or cartridge in the firing chamber. These components could also be available in a clip or magazine attached to the firearm.
You can't be guilty under California PC 25850 if you were not aware of the existence of the firearm. However, a conviction under this statute does not require you to have known that the gun was loaded.
If you drive in your vehicle and have no clue that your gun is in the car, you can't be guilty under PC 25850. However, you would have to prove, through the help of an attorney, that you were unaware of the firearm's existence.
In some instances, you might be aware that your gun is in the vehicle, but you assume that the weapon is not loaded. If the police stop your car and find the loaded weapon, you could be guilty under PC 25850. As long as you were aware of the gun's presence, you will be liable even if you did not know that the gun was loaded.
Consequences of Carrying a Loaded Firearm
In most cases, an offense under PC 25850 is a misdemeanor as long as aggravating factors are not present. The consequences for the crime include jail time not exceeding one year in a county jail in California. The court might also require you to pay a fine that does not exceed $1,000.
It is important to note that certain aggravating factors could make the crime of carrying a loaded firearm a wobbler or an automatic felony. If you have a prior conviction for a similar offense, you have to serve a minimum jail time of three months.
A violation under PC 25850 is a wobbler if you are not the registered owner of the firearm. The offense will also be a wobbler if you have a prior conviction for another misdemeanor or drug-related crime. The prosecutor can charge a wobbler crime as a misdemeanor or a felony.
If the crime under PC 25850 is a felony, the penalties will include imprisonment in a California county jail for three years. You might also have to pay a fine that does not exceed $1,000.
The crime of carrying a loaded firearm will be an automatic felony if you have a prior felony conviction for a firearm-related offense. If you were carrying a stolen gun at the time of arrest, you would face felony charges. You will also get felony charges if you were a member of a criminal street gang when committing the offense. If you did not have lawful possession of the firearm, the violation under PC 25850 would be a felony. Felony charges will also apply if the Law prohibited you from possessing or owning a firearm. If the offense is a felony, charges include imprisonment in a county jail for up to one year. The court might impose a hefty penalty of up to $10,000.
Minimum Jail Time of Three Months
In some instances, you have to serve a minimum jail time of three months after committing the crime of carrying a loaded firearm. The minimum jail time will apply if you violate PC 25850, and you have a prior conviction for specific offenses. The offenses include assault with a deadly weapon under PC 254(a)(1). Other qualifying crimes include brandishing a weapon under PC 417. You will also get a minimum of three months of jail time if you have a prior conviction for shooting an inhabited house or vehicle, according to PC 246.
A violation under PC 25850 could have negative immigration consequences, especially if you are not a citizen of the United States. According to the United States Immigration Law, certain criminal convictions could lead to deportation from the United States. You could also be marked as inadmissible into the United States after committing the crime under PC 25850. Firearm offenses are among the deportable crimes.
It is particularly important to seek a qualified attorney after committing a crime under PC 25850 if you are not a citizen of the U.S. Hiring an attorney will help you mitigate the negative immigration consequences that could result from the conviction.
Effects on Your Gun Rights
A conviction under PC 25850 could hurt your gun rights in California. According to the Law, a felony conviction could affect your gun rights. The prosecutor could charge the offense of carrying a loaded firearm as a felony. In this case, you will lose your right to possess or own a gun in California.
Expungement of the Conviction
After a conviction for carrying a loaded firearm, you could apply for an expungement of the criminal record. Before you qualify for the expungement, you have to complete and meet all the requirements of probation. You also have to complete the jail term recommended by the court.
You could still get an expungement of the criminal conviction even if you violate the terms of probation. However, whether you get an expungement of your conviction after violating the terms of probation will depend on the judge's discretion.
If you get an expungement as outlined under PC 1203.4, you will no longer bear the criminal conviction's negative consequences. For instance, the conviction will not appear in your background check results as you look for a job or seek tenancy. You will be free from all the disabilities and penalties arising from the conviction.
Common Legal Defenses
With the help of an experienced criminal defense attorney, you can come up with a defense to challenge the evidence the prosecutor presents against you. Convincing legal defenses could lead to a reduction or dismissal of your criminal charges. Some of the typical legal defenses for a criminal conviction include:
You Were Not Aware that You Had the Firearm
You can only be guilty of carrying a loaded firearm if you were aware that the gun was in your person or your vehicle. However, if you did not know about the firearm's presence, you can fight the charges successfully. For instance, another person might have put a gun in your jacket's pocket or your backpack without your knowledge. In this case, you would not be guilty under California law. However, you will need a strong defense to prove that you were not aware of the firearm.
The Firearm was Unloaded
You will only be guilty under PC 25850 if the firearm you were carrying was loaded. If the firearm was not loaded, you could fight the charges. It is not a crime to carry a firearm in public as long as it is not loaded.
You could also fight the charges if the weapon you were carrying does not qualify as a firearm. For instance, you should not face charges if you carry a pellet gun or a BB gun.
You Did Not Know the Firearm Was Loaded
You might have known that you were carrying a firearm, but you were not aware that it was loaded. Perhaps, you always carry an unloaded firearm in your vehicle. However, your friend or relative loads the gun one day without your knowledge. If the police arrest you for having a loaded gun in public, you could quote a mistake of fact defense. You can point out that you genuinely thought or believed that the firearm was unloaded. However, even if this defense would work in fighting the crime of carrying a loaded gun, you might still be at fault. You would be guilty under California PC 26350 for carrying an unloaded firearm in public.
The Law Allows You to Carry a Firearm
California law allows specific categories of people to carry firearms in public. Therefore, if you are exempt from criminal liability under this statute, you can carry a gun without violating PC 25850.
The Law allows you to carry a firearm if you are an active or an honorably retired law enforcement officer. If you are an agent of an enforcement agency under Federal Law, you have a right to carry a firearm. Members of the U.S military are also eligible to carry a gun. You could also carry a gun if you are a recreational shooter.
You could also carry a firearm in public if you have a Concealed Weapons Permit in California. The Law can allow you to carry a firearm such as a revolver or a pistol, which is easy to conceal in your person. To get this permit, you must be a person of good moral character. A good cause for the issuance of the license should exist. For instance, the permit would be necessary if you or your family member is in danger. You have to meet specific residency requirements to be eligible to receive this permit. You must also have completed the required course of firearms training to get this permit.
Certain people are restricted from obtaining a CCW permit. These people include persons convicted of certain misdemeanors and felonies outlined under the ' felon with firearm' law PC 29800. People who are addicted to narcotics are restricted from carrying a firearm. If you lose your gun rights due to a conviction for domestic violence, you will not be eligible to obtain a CCW permit. You cannot get the permit if you have a mental illness.
According to PC 26015 and PC 26030, private investigators and security guards are exempt from the ban on carrying a loaded firearm. However, the investigators and the security guards have to adhere to some set regulations.
You can carry a loaded gun if you have a license that allows you to engage in legitimate hunting activities. While hunting at permissible locations, it is okay to carry a loaded gun. However, while carrying the firearm to and from the hunting premises, you have to ensure that the gun is in an enclosed container.
The Police Subjected You to Illegal Search and Seizure
If the police discovered that you were carrying a loaded firearm through an illegal search, you could fight the charges based on this fact. Before searching, the police should have a valid warrant and a probable cause. If the police obtain the evidence through an illegal search, your attorney could request the removal of the illegally acquired evidence from your case. If the judge approves the exclusion of illegally obtained evidence from your case, it could reduce or dismiss your charges.
You Did Not Carry the Firearm in a Public Place
According to the Law, a public place is an open place accessible by the public. You can't be guilty of carrying a loaded firearm if you did not carry the firearm in public. For instance, if the police arrest you at your private resort, you can point out that you were not in a public place. It is not a crime to carry a loaded gun in a private place.
You Were Carrying a Firearm in Self-Defense
You can also fight charges for carrying a firearm in public by pointing out that you were carrying the firearm in self-defense. You can carry a loaded firearm if you believe that you or another person is in danger. If the police arrest you for carrying a gun, you can inform them that the gun's purpose is to deflect the imminent threat.
Three crimes are closely related to the crime of carrying a loaded firearm. You could get charges for the related offenses alongside PC 25850 charges or instead of PC 25850 charges. Some of the related offenses include:
California PC 25400 - Carrying a Concealed Weapon
According to California PC 25400, it is a criminal offense to carry a concealed weapon on your person or vehicle. You could be guilty of this offense if you carry a weapon hidden in a vehicle as long as it is under your control. Weapons that are easy to hide within a person or a car include pistols and revolvers. You could still face charges if you cause the carrying of a firearm within another person or vehicle. You do not have to personally carry the concealed weapon for you to be guilty.
To charge you with this offense, the prosecutor would have to prove that you concealed a weapon such as a pistol or a revolver on your person or vehicle. It should be apparent that you were aware of the concealed weapon. The prosecutor also has to prove that the weapon was significantly concealed. The California PC 25400 seeks to punish a person for carrying a concealed weapon. You cannot be guilty under this statute if you carry a firearm in plain view.
If aggravating factors are not present, the crime of carrying a concealed weapon is a misdemeanor. The penalties for the offense include jail time of up to one year in county jail. The court could also subject you to a fine that does not exceed $1,000. The court could also grant you summary probation instead of jail time. If aggravating factors are present, a violation under PC 25400 could attract felony charges.
California PC 26350 - Openly Carrying an Unloaded Firearm in Public
According to California PC 26350, it is a crime to carry an unloaded weapon in a public area openly. This Law revoked the open carry law in California. It is a misdemeanor offense to carry an unloaded firearm openly. After a conviction for this offense, you could serve jail time of up to one year in a county jail in California. The court might also require you to pay a fine that does not exceed $1,000. You could get both the jail time and the fine if you carry a firearm while you are not the firearm's lawful owner.
Before 2012, a person who had a license to own a firearm would openly carry the gun according to the 'open carry' laws. It was okay to keep a gun in plain sight as long as a person did not take the firearm to restricted areas. However, with the passage of PC 26350 in 2012, it is no longer legal to carry either a loaded or an unloaded gun.
California PC 26500 (a) - Unlicensed Sale of Firearms
According to California PC 26500(a), it is a criminal offense to lease, sell, or transfer firearms if you do not have a license. Even if you have a license to sell or transfer guns, you must deal with the type of firearm you are authorized to handle.
The unlicensed sale of a firearm is a misdemeanor offense. The penalties for the offense include imprisonment in a county jail for not more than six months. You might also have to pay a fine that does not exceed $1,000. This punishment will apply for every firearm that you sell without a valid license.
You can fight charges under this statute by pointing out that you are a victim of police misconduct. You could also file a defense if the police misrepresented the facts of your case. If you feel that there was a violation of your rights in any way, you can use it as a basis for your defense.
The Role of an Attorney
An attorney will play a significant role in determining the outcome of your case. You should never attempt to fight a criminal offense on your own. Some of the functions that an attorney will play in your case are:
- Advising you on the best legal course of action
- Helping you to gather facts of your case and the necessary paperwork
- Identifying lapses in the prosecutor's evidence
- Challenging the evidence that the prosecutor presents against you
- Helping you come up with a convincing defense for your case
Find a Experienced Criminal Attorney Near Me
If you are accused of carrying a loaded firearm, you should seek immediate legal counsel. Orange County Criminal Defense Attorney Law Firm can evaluate your case and help you develop a good defense strategy. Contact us at 714-740-7848 and speak to one of our attorneys.