Prohibited weapons laws in California are some of the strictest in the United States. These laws range from what weapons you can have to who can have legal weapons. The laws are confusing and complex in most cases. Particular weapons are illegal, while others become illegal upon modifications on them like altering their ammunition type or enhancing their magazine size. Some weapons are permanently prohibited, meaning you cannot legally possess, manufacture or sell them in California.
If you are accused of breaching PEN 16590 in any way, engaging an experienced attorney is critical. Your lawyer will find clever defenses to favor you. At Orange County Criminal Defense Attorney Law Firm, we will aggressively defend you for the best outcome possible.
Prohibited Weapons According to PEN 16590
According to this statute, there are several types of weapons prohibited in California. Some of these weapons include:
Different kinds of firearms are prohibited in California. This means you cannot manufacture, sell, own, or modify any of them. These include:
- Rifles and short-barreled shotguns according to PEN 33215
- Firearms that are undetectable as found under PEN 24610
- Firearms that cannot be recognized immediately according to PEN 24510
- Weapons as found under PEN 31500 – unconventional pistols
- Wallet guns, zip guns, or cane guns as in PEN 24710, PEN 33600, and PEN 24410
Prohibited Ammunition or Firearm Equipment
According to the law, there are various types of ammunition or equipment used with firearms that are prohibited. These include:
- Firearm containers made to camouflage as found under PEN 24310
- Bullets made to have explosive agents in the as per PEN 30210
- Trigger activators that are multi burst according to PEN 32900
- Magazines that hold large capacities as per PEN 32310
According to this statute, there are many more weapons that their ownership, production, and sale in California are prohibited. These include:
- Particular swords and knives
- Some martial arts weapons
- Other unconventional weapons
However, for this article, we will focus on prohibited guns in California and the consequences of having them.
Illegal Activities Concerning Prohibited Guns or Weapons
It is illegal for you to do any of the following knowingly:
- Manufacture – When the law makes it illegal to manufacture these weapons or firearms, it also means modifying them. If you modified a particular firearm to change it from its original state to another that is prohibited, you are guilty of breaking the law. Similarly, it is unlawful for you to manufacture or make from scratch any of the illegal firearms listed above in California.
- Import to California – When you know a particular weapon is prohibited in California, it also means that you cannot bring it into the state. If you are found with this weapon even when it was legal in the other state, you face prosecutions for breaching the law.
- Offering to sell – The law prohibits you from selling any of the illegal weapons listed above. According to the statute, it does not matter whether you are the one that made the weapon or someone else did, but selling it to a third party is prohibited.
- Lending – When you own a prohibited firearm as listed above, it is illegal for you to lend it to another person irrespective of what they will use it for. Both you and the person will be prosecuted for having a prohibited weapon in California.
- Possession – When a firearm is prohibited in California, it means even having or owning it is illegal.
Based on this statute, two words require understanding and are important in convicting you of the offense. These are:
According to this statute, you will only be found guilty if you understood the object was a weapon, or it can be used as a weapon, in this case, a firearm. However, to be convicted of this offense, the prosecutor is not required to prove that you were to use the object as a weapon. Your knowing that the object was a weapon is enough to get you convicted of the offense.
According to the law, you will be said to be in possession of a particular object when you either:
- Have it in your possession
- You constructively possess it
Actual possession, in this case, means that you were found holding it, or you could easily and immediately access it. When the prohibited firearm is on your body or concealed in something you are wearing or holding like a pocket or bag, it means you are in actual possession of it.
On the other hand, constructive possession means you cannot access the firearm immediately, but you control it.
For instance, John comes into California with a rifle from another state. He decides to keep it hidden in his garage. A tip is received by police officers that John has a prohibited weapon, and they plan to arrest him on that suspension. They get a search warrant and visit John in his house. Upon searching the garage, the concealed rifle is found. In this case, John will be arrested and charged for illegally possessing a prohibited firearm and bringing it to California.
It is important to note that John did not have the prohibited weapon in his immediate possession, but he had control over it because it was in his garage.
Exempted People and Weapons from Prosecution
Under this statute, certain people and situations get exempted from prosecution. If you fall under the category of people or were involved in any of the situations below, you cannot be found guilty of violating the law. These situations and people include:
- Law enforcement agencies that have bought, received or have in their possession the prohibited weapons
- A school teaching martial arts cannot be prosecuted for having nunchakus
- If you own a curio or an antique shop and have a relic gun or ammunition at the shop
- Libraries, museums or historical societies that have these prohibited weapons cannot be charged with violating the law
- People in the entertainment industry using unloaded firearms while producing a movie, a TV show or video production
- Persons that turn in prohibited weapons to police departments or law enforcement agencies
- Forensic laboratories having these weapons
Determining Violation of PEN 16590
Being charged with violating PEN 16590 does not mean you will automatically be found guilty of the offense. For you to get convicted of this offense, the prosecutor must prove particular elements or aspects of the crime beyond any doubt. These elements are:
- You possessed or had, brought into California, manufactured or facilitated the manufacture, stored, exposed, sold, or offered to sell a prohibited firearm. Additionally, the prosecutor must show that you loaned, gave, received, or bought the prohibited firearm as listed under PEN 16590. In determining this fact, the prosecutor must show that you actually had the firearm with you or within reach, or you constructively had it as earlier discussed.
- Another critical element to prove for you to get convicted is that you engaged in activities considered unlawful about the prohibited firearm. The activities mentioned earlier include selling, manufacturing, having, offering, giving, buying, or exposing it for sale. Additionally, you are only guilty if you knew the object in your possession is a weapon or can be used as such.
- You knew of the potential for the object to be used to carry out illegal activities.
Based on these elements, you cannot be found guilty of violating this statute if you did not know that the item was a weapon or could be used as one. However, your intention on how you planned using the object as a weapon is not required for a guilty verdict. Equally, the prosecutor is not required to prove that the firearm is working. The most important aspect of a guilty verdict is that you knew it was a weapon.
In some cases, the reason for the weapon is taken into consideration while prosecuting you. Typically, most illegal guns are designed to be concealed easily but capable to silently attack. The prosecutor can prove your intentions with evidence and get you convicted of the offense.
If the prosecutor has included charges on manufacturing, selling, or having the prohibited firearms for sale, he or she must show your intentions to profit from the guns. California has more restrictions on guns. A gun or firearm in California is defined as:
- Any gadget or device
- Designed to be used as a firearm
- From where a projectile or missile
- Is released via a barrel
- Through explosion or any other kind of combustion
Most adults in California are allowed to lawfully own conventional pistols, long rifles, shotguns, conventional ammunition, or revolvers, as long as the restrictions under the law apply. At the same time, it is unlawful to sell, manufacture, or have a firearm even when it is a legal one when:
- A convicted felon from any jurisdiction
- An addict of drugs
- You have previously been convicted on two occasions for violating PEN 417, the law that makes it illegal to brandish a firearm or weapon
- Your record indicates prior convictions on particular misdemeanors
- You have a mental illness
- You are below the age of 18
It is essential to understand that a conviction for this offense is not based on whether the weapon is in working condition or not. The purpose of this is to offer protection against the fear people could experience if threatened using such a weapon.
Penalties for PEN 16590 Violation
California has steep penalties for any person found guilty of violating this particular statute. The offense is, however, prosecuted as either a felony or a misdemeanor. The prosecutor will typically look at your criminal background and the aspects of the particular offense in deciding on how to charge you.
If it is your first time to commit this crime and the allegations against you are related to metal or metal replica hand grenades, or hand grenades for military practice, the offense is an infraction. A guilty verdict will earn you a fine not exceeding $250. However, if your actions were in line with being an active member of an illegal street gang, the penalties are more severe.
If you are prosecuted on misdemeanor charges and found guilty, the possible punishments you face include:
- Misdemeanor probation in addition to a year of county imprisonment
- A cash fine to the maximum of $1,000
- Both jail time and a cash fine
If prosecuted on felony charges and convicted, the penalties you face include:
- One year county jail incarceration in addition to formal probation
- Imprisonment at the county jail for 16, 24 or 36 months when probation is not given
- A cash fine not exceeding $10,000
- Serving a jail time in addition to a cash fine
Aside from the above discussed legal punishments, there are various other consequences a conviction will carry. These include:
Sometimes, if convicted of this offense and you are a non-citizen, you may get deported or marked as inadmissible. However, with an experienced attorney and where no violence was involved, you will not face these negative consequences.
When you are found guilty of this offense, you will automatically lose your rights to own or have a gun if convicted on felony charges. This ban is for life, and the only way to restore these rights is if your felony sentence is reduced to a misdemeanor.
Adverse Effects on Your Professional License
You require a professional license to use a firearm to earn a living. A felony conviction can result in the revocation of your license or denial to renew it. This repercussion is serious because it means you may have to look for another way to make a living.
Possible Legal Defenses for Prohibited Weapons
A conviction on this offense carries strict penalties. When you are faced with allegations of prohibited weapons, finding an experienced criminal attorney to fight the allegations will help in getting a favorable outcome. Your attorney will formulate clever defenses that may include:
Illegal Police Search
In most cases, an individual gets charged with this offense if they were stopped by an officer carrying out an investigation. It is illegal for a police officer to search you or your property unless:
- They have a reason to believe you are involved in illegal activities, and because of the belief, they need to investigate you.
- A legal search warrant issued by a judge authorizing them to search you or your property is presented, and the search must be only to the scope indicated.
- You willingly allow the police officers to search you or your property.
If the search was carried out and was not following any of the above, it violated your rights. If this was the case, your lawyer could argue against the unlawful search, and any evidence obtained from this search is inadmissible in court. Without this evidence, it is unlikely you will get convicted of the offense.
You Did Not Know the Object in Your Possession was a Prohibited Weapon
One of the elements a prosecutor must prove regarding this offense is that you knew the object was a weapon and a prohibited one. If you did not know this fact, you could not be found guilty of the offense. The prosecutor must produce evidence supporting that you were aware the object in your possession was a weapon or could be used as a weapon. This is a challenging element to prove, and an argument to the contrary by your attorney can get the charges against you dropped.
You are Exempted and Permitted to Possess a Prohibited Firearm
Earlier in this article, a list of persons and situations that the law allows for prohibited weapons was given. If you belong in this category and met the specified conditions under the law, you are innocent of this offense. If you have a firearm outside the conditions outlined in the law, it is a crime, and you can get convicted for it. Your lawyer will produce evidence in court showing you are permitted by the law and exempted from prosecution for having a prohibited firearm. With the evidence, the charges against you get dismissed.
You Have Authority
When you have a permit to have a concealed gun, it is not to mean you can carry a prohibited weapon. According to PEN 16590, it is illegal to have any of the listed weapons, even with a license for concealed weapons. But, you may have a permit allowing you to have a prohibited weapon. For instance, if in the production of a movie, TV show, or documentary, the Department of Justice can issue a permit for unloaded guns to be used as props. Additionally, if you are a licensed firearm dealer, you can also be permitted to transport, have or trade-in magazines with enhanced capacities to buyers from other states.
If this is the case, your attorney will produce the permit in court and demonstrate you were within the law. When the evidence is sufficient, you will be found innocent of the offense.
Entrapment is a common defense strategy when you were coerced, persuaded, or lured into the illegal activity. When the police are trying to lay a trap, they may have an undercover officer persuading you to have a prohibited weapon. For instance, if you are suspected of belonging to a gang, an undercover police officer can ask you to buy a prohibited weapon. The law expects you to resist the temptation when you are an upright citizen. But, if the police officer keeps insisting, you may agree to it to let him leave you alone. If this is the case, you will not be found guilty of the offense because your actions were coerced, and you did not break the law willingly.
Your attorney can claim the behavior of the police was inappropriate and may result in the dismissal of your charge. If any of the following happened, your lawyer can present the misconduct in court and have the charges dropped. Such behavior includes:
- Planting or fabrication of evidence
- Carrying out an illegal search producing the firearm
- Coercing or persuading you to a confession
- Any behavior violating your constitutional rights
For you to get convicted on this offense, the prosecutor must prove beyond doubt that you violated the law as contained under PEN 16590. Your lawyer can challenge the evidence presented in court and create a doubt that may result in the dismissal of the charges against you.
Expungement of Your Record
When you get convicted of this offense, the judge will sentence you to any of the penalties earlier discussed, according to the law. The law allows a person that successfully completes their probation or sentence to have their record expunged.
If you complete your probation or sentence, you can petition the court through your lawyer to have your record expunged. The prosecutor may challenge your application while your lawyer will convince the court why your record should be deleted.
If the court grants your petition, your record will be expunged. However, if you had been convicted on a felony, your gun rights do not get restored even with an expungement.
Getting your criminal record deleted is important in your personal life. Most individuals with a criminal record face various challenges in their day to day life, but with an expunged record, it becomes easier. For instance, with a criminal record, it becomes difficult for you to get a job or keep one. Additionally, if you want to rent a house or apartment, potential landlords may deny you an opportunity because of your criminal record.
A criminal record is a matter of public knowledge or accessibility. Your potential employer, landlord, or even college can see your past if not deleted. Getting your record deleted affords you equal opportunities as other people without criminal convictions. Expungement is, however, at the discretion of the judge, meaning your lawyer must give a convincing case for you to get your record deleted.
Find a Orange County Criminal Lawyer Near Me
With the regular changes in firearm laws, it is possible to find yourself violating the statute despite your best efforts. When you are faced with the possibility of jail time and penalties for prohibited weapons, it is overwhelming. Call the Orange County Criminal Defense Attorney Law Firm at 714-740-7848 to handle your case and vigorously work toward a favorable outcome.