Specific laws provide guidelines for handling guns in the interest of public safety. You must adhere to these laws, even though the Second Amendment otherwise protects your right to possess firearms in your home for self-defense and in some circumstances outside the home. Under California Penal Code 25850, carrying a loaded gun on a public street, in a public place, or in a car if you do not have a valid concealed weapons license is unlawful. This offense can result in a misdemeanor conviction with a maximum sentence of one year in county jail, and a fine. If you face carrying a loaded firearm charge in Pasadena, CA, or the surrounding Los Angeles area, you should seek the services of a skilled and competent criminal defense attorney. At The Law Office of Ann Gottesman, Ann can help you fight these gun charges.

Carrying A Loaded Firearm Under California Law

California PC 25850 outlines several violations that could lead to criminal charges. Primarily, you could be convicted under PC 25850 if you carry a loaded firearm in your car or on your person in a public location or on a public street. This law also makes the following a crime:

  • Carrying a firearm in violation of the Gun-Free School Zone Act.
  • Carrying a gun while you are an active member of a gang.
  • Carrying a loaded concealed firearm when you are an unregistered owner.
  • Carrying a loaded firearm when you are not the registered owner.
  • Carrying a stolen firearm without possessing the proper permit.

 The Elements of The Crime

If the prosecutor accuses you of carrying a loaded firearm, PC 25850 requires that he/she prove the following elements beyond a reasonable doubt:

  • You had a loaded gun on your person or in your car.
  • You were aware that you possessed the firearm.
  • While carrying the loaded firearm, you were in a public location, on a public street, or in a place deemed unlawful to possess a gun.

The Definition of Firearm Under California Law

According to Penal Code 25850, a firearm is a device meant to be operated as a weapon and from which projectiles are discharged from the barrel of the device by an explosion. Firearms typically include revolvers, shotguns, tasers, pistols, and rifles. Pellet guns and B.B. guns are not firearms because they do not meet this definition and are not fired by combustion.

A loaded Firearm

According to the law, a firearm is loaded if:

  • An unexpelled cartridge or shell is in the firing chamber or
  • The cartridge or shell is in a magazine or clip attached to the firearm.

The law also requires that you be aware of the firearm's presence to be guilty of the crime of carrying a loaded firearm. You do not need to be aware that the gun was loaded for you to be guilty under PC 25850.

You could face charges under this statute regardless of whether or not the firearm was in working condition. The court considers whether the gun was loaded and capable of firing.

Public Location

Public places are open to anyone wishing to tour them for common or general use. Public areas include but are not limited to parks, streets, or highways. Common places, on the other hand, include but are not limited to:

  • Shops.
  • Transport facilities.
  • Malls.
  • Hospitals.
  • Schools.
  • Apartment buildings, and
  • Office buildings.

Possessing a Gun or Discharging a Gun In a School Zone

According to Penal Code 626.9, the Gun-Free School Zone Act, it is an offense for any person to possess or discharge a firearm in a school zone. Under PC 626.9, a school zone is any area within 1,000 feet of a public or private school.

Penalties For Violating Penal Code 25850

The facts of your charges will determine the type of punishment you will face upon conviction. You could face misdemeanor charges if you violate Penal Code 25850. Misdemeanor charges attract the following penalties:

  • A fine that does not exceed $1000.
  • A jail term that does not exceed one year.

The violation of PC 25850 could also be a wobbler. You will likely face misdemeanor charges but could face felony charges if there are aggravating factors. The prosecutor or district attorney will decide which charges to file after reviewing your case. The filing deputy will consider the following factors:

  • If you have a previous criminal record for a misdemeanor or felony offense,
  • If you are a registered firearm owner,
  • Any other aggravating or mitigating factors.

You will face the above penalties if you are convicted of a misdemeanor. However, if the judge sentences you to a felony, you will face the following penalties:

  • A fine that does not exceed $1,000.
  • A jail term that does not exceed three years.

Automatic Felonies

You could face automatic felony charges if you violate PC 25850 and any of the following is true:

  • You were previously banned from owning or possessing a firearm.
  • You were a member of a criminal gang at the time of the offense.
  • You possessed the gun illegally.
  • You previously faced firearm or felony charges.
  • The firearm was stolen.

A straight felony attracts the following penalties:

  • A fine that does not exceed $10,000.
  • A jail term that does not exceed three years.

Mandatory Minimum Jail Term

The judge will impose a mandatory minimum jail term that does not exceed three months if you violate PC 25850 and have prior charges for certain crimes. The offenses include:

  • Shooting at a dwelling house or an inhabited vehicle, according to PC 246.
  • Assault with a deadly weapon, according to PC 254 (a) (1).
  • Brandishing a weapon, according to PC 417.

Other Repercussions for Violating PC 25850

If you are convicted of carrying a loaded firearm, you could face negative immigration consequences and lose your gun rights.

Immigration Consequences

Crimes involving firearms are deportable offenses for non-citizens. If you are guilty of violating PC 25850, you could be subject to deportation to your country of birth. However, it is only after evaluating the circumstances of your case that Immigration and Customs Enforcement (ICE) will decide whether to deport you. You could also be inadmissible in the United States. In this case, you cannot re-enter the United States if you travel abroad.

Firearm Rights Repercussions

A conviction for violating PC 25850 could affect your Second Amendment rights. Penal Code 29800 prohibits people convicted of felony charges from receiving, purchasing, possessing, or owning a firearm. You could face additional charges for violating PC 29800. The violation of PC 29800 attracts a jail term that does not exceed three years.

Possession is not limited to law enforcement finding a firearm in your vehicle or on your person. You can be in active or constructive possession of a gun. You could be in active possession if you knowingly have direct physical control over a gun. On the other hand, you could be in constructive possession of a firearm if you consciously control the gun directly or indirectly through someone else.

Restoring Your Gun Rights

If you previously lost your gun rights, you can have your gun rights restored by:

  • Applying for a Certificate of Rehabilitation and securing a governor’s pardon — You will receive an order confirming your rehabilitation if the judge grants your certificate of rehabilitation application. The certificate will be sent to the office of the Governor as a pardon application. A pardon will restore your lost firearm rights.
  • Having your charge expunged — Penal Code 1203.4 permits you to file an expungement request to remove the PC 25850 violation from the records. If the court grants your request, the judge could set aside your charges and seal the records. This act frees you from the possible challenges a criminal record presents when you return to the community post-conviction. However, the judge will not grant you an expungement if you have served a prison sentence.
  • Having your charges reduced — You can enter into a plea deal to reduce your charges. You can plead guilty to misdemeanor charges and avoid a felony conviction. If the judge convicts you of a felony, you can restore your constitutional rights by petitioning the court to reduce the felony to a misdemeanor.

Exemption For Penal Code 25850 Charges

You could be exempt from PC 25850 requirements under certain circumstances, including:

  • Being a security guard, armored car guard, or private investigator.
  • Having a concealed carry permit.
  • Having a loaded firearm for purposes of hunting or at a shooting range This exemption is only valid if you can carry a gun, according to the city council. You must carry the loaded firearm only in designated locations. The gun is also supposed to be in a locked repository while you are transporting it to and from these facilities.
  • Having a loaded firearm on your business premises or private property However, your exemption is only valid if the loaded gun remains on your private property or business premises. You could face charges under PC 25850 if you have a weapon in a public setting other than the designated area.
  • Completing a gun training course approved by the Commission on Peace Officer Standards and Training (POST certification). Under this program, exempted people include, but are not limited to, animal control officers, district attorney investigators, and school district police officers.
  • Being a member of the U.S. armed forces, including the U.S. military who are actively carrying out their duties or National Guard.
  • A retired federal agent resident and having consent from the county sheriff to have a loaded gun. Federal agents include the Drug Enforcement Agency (DEA), Internal Revenue Service (IRS), and the Federal Bureau of Investigation (FBI), among other federal agencies.
  • Being a full-time peace officer employed by the federal government or another state. You cannot face charges for carrying a loaded firearm if you are on official assignment.
  • Being an honorably retired or active peace officer.

Defenses To Penal Code 25850 Charges

You can face significant penalties if the judge convicts you of carrying a loaded firearm. However, there are several vital defenses that you could raise to challenge your charges. The best defense strategy depends on the facts of your charges. Generally, some of the defenses you could use include:

You are a Victim Of Unlawful Search And Seizure

Law enforcement could sometimes find the gun through an unlawful search and seizure. An investigation is illegal if the law enforcement officers do not have probable cause or a warrant. The court could exclude any evidence secured through an unlawful search if your attorney files a motion to suppress evidence or a PC 1583.5 motion. If the prosecutor does not have enough evidence to proceed to trial, motions to suppress evidence can lead to reduced charges or dismissal of your charges.

Legal Exemption

You can claim an exemption to PC 25850 to avoid carrying a loaded firearm charges. The exemptions are valid reasons for the PC 25850 violation. The following are the exemptions you could raise depending on the facts of your charges:

  • You are a member of the U.S. forces.
  • You are an FBI agent.
  • You are an active or honorably retired police or peace officer.
  • You are a recreational shooter.
  • You are a concealed carry weapons license holder.

The judge could dismiss your charges after proving your exemption from PC 25850 laws.

Lack of Knowledge

To face charges under PC 25850, you must know your firearm was loaded. If you were unaware, you are not guilty of the offense. This defense could be valid, mainly if the gun or the car in which the firearm is stored belongs to another person.

The Firearm Was Not Loaded

A loaded firearm is one of the elements in a PC 25850 case that the prosecutor must prove. You can only face charges under PC 25850 if you carry a loaded gun. However, if you use this defense, it means accepting that you have a gun. You could, therefore, be guilty of violating PC 2630. PC 2630 makes it a crime to openly carry an exposed or unloaded handgun in a public place or in a car.

You Carried The Firearm For Self-defense

You can carry your firearm for self-protection if you reasonably believe you could be at risk of imminent danger. A self-defense claim is allowed in many criminal cases and can exonerate you from a conviction. For example, if there is a restraining order and you believe that the person subject to the order could attempt to attack you or cause you harm, you can use this as a defense. In this case, the court could find it reasonable for you to carry a loaded gun for self-protection because any reasonable person could do so under the same circumstances. You could use this defense if you have no criminal record. You could also employ this defense as a registered legal firearm holder.

You Were Not In A Public Area or Prohibited Area At The Time Of Your Arrest

A vital element of violating PC 25850 is being in a public area or any other prohibited location with a loaded firearm at the time of your arrest. The judge will consider this element before making the final judgment. The judge can dismiss your charges if the arresting officer fails to prove that you were in a public place at the time of your arrest. The judge could drop your charges based on weak evidence and because the officer failed to clarify if the arrest area was public or private.

Related Offenses

You could face charges for the following offenses alongside or instead of carrying a loaded firearm:

Carrying A Concealed Weapon — PC 25400

It is a crime under PC 25400 to carry a concealed firearm on your person or in a car if you do not have a valid Concealed Carry Weapon license. You could be guilty of violating PC 25400 if you commit certain acts using a revolver, a pistol, or any other concealable firearm. According to the law, the prohibited acts include:

  • Carrying a gun concealed upon your person.
  • Carrying a gun hidden in any car that is under your direction or control.
  • Causing a firearm to be carried hidden in any car that you are a passenger.

If the prosecutor accuses you of carrying a concealed weapon, PC 25400 requires that he/she prove the following elements:

  • You carried a gun that was hidden in your car or on your person.
  • You were aware of the presence of the concealed firearm.
  • The gun was significantly hidden.

A violation of PC 25400 without aggravating factors is usually a misdemeanor. The penalties you could face include:

  • A fine that does not exceed $,
  • A jail term that does not exceed one year in a county jail.

The judge could also grant you summary or misdemeanor probation. However, certain circumstances could lead to a jail term or a fine:

  • If you refuse to cooperate with the police during your arrest.
  • If law enforcement discovers that you intended to use a concealed firearm.
  • An existing criminal record.

A violation of PC 25400 becomes a straight felony or wobbler if there are aggravating factors. Felony charges attract the following penalties:

  • A jail term of 16 months, two years, or three years in a county jail.
  • A fine of up to $10,000.
  • Probation with a one-year jail term in a county jail.

The defenses you could use to challenge your PC 25400 charges include:

  • Police misconduct.
  • You carried the weapon in self-defense.
  • You are a victim of illegal search and seizure.
  • The gun was within your residence or place of business.
  • You have a license.
  • The gun was in a locked container in your car.
  • Lack of knowledge.

Openly Carrying An Unloaded Firearm In Public — Penal Code 26350

It is an offense under PC 26350 for any person to carry an unloaded handgun in public or in a car. If the prosecutor accuses you of openly carrying an unloaded firearm in public, he/she must prove the following elements:

  • You carried an unloaded or exposed handgun.
  • You had the gun inside a car or on your person.
  • You had the firearm on a public street or in a public place.

You could face misdemeanor charges for violating PC 26350. Misdemeanor charges attract a fine that does not exceed $1000. You could also face a jail term that does not exceed one year in a county jail as opposed to a state prison.

The judge could also impose a fine and a jail term if:

  • You are the unregistered owner of the firearm.
  • You are carrying unexpended, dis-chargeable ammunition.

You can raise several defenses to fight your PC 26350 charges. The applicable defenses include:

  • Law enforcement subjected you to illegal search and seizure.
  • You were exempt from the law.
  • You were not in a public place.

Unlicensed Sale Of Firearms — Penal Code 26500

It is an offense under PC 26500 for any person to sell, lease, or transfer firearms without a valid permit or license. However, exceptions exist for sharing guns between family members, but the transfer is only allowed for the kind of gun permitted under the license. The guns allowed under PC 26500 include:

  • Short-barreled shotguns.
  • Short-barreled rifles.
  • Rockets.
  • Handguns.
  • Revolvers.
  • Rocket-propelled projectile launchers.
  • Pistols.

The individuals restricted from possessing or acquiring a gun under this statute include:

  • Individuals younger than 21 years are not allowed to buy guns.
  • People who have mental health problems.
  • Individuals charged with certain misdemeanor offenses.
  • Individuals with two or more charges under PC 417.
  • Narcotic addicts.
  • Individuals charged with any felony crime in any jurisdiction.

A violation of Penal Code 26500 is a misdemeanor. Misdemeanor charges under this law may result in the following penalties:

  • A fine that does not exceed $1,000.
  • A jail term that does not exceed six months in a county jail.

The defenses you could present to challenge your PC 26500 charges include the following:

  • You are a victim of illegal search and seizure.
  • You were exempt.
  • You have a valid license.
  • Police misconduct.
  • You are a victim of false accusation.
  • Any element of the offense is shown not to be met.

Find a Criminal Defense Attorney Near Me

California has laws governing guns and weapons. Violating these laws could result in serious legal consequences that may affect a person’s employment, right to own or possess firearms in the future, and freedom. You should seek assistance from a skilled criminal defense attorney if you face charges for carrying a loaded firearm or similar charge. At The Law Office of Ann Gottesman, Ann will personally handle your case and work hard to achieve the best possible result.

Contact Ann at 626-710-4021 for a free consultation.