Carrying a Loaded Firearm

In the recent past, there has been a robust debate over gun control in California. Given the different arguments put forward, you can quickly get confused about some aspects of gun ownership. 

Though the Second Amendment protects your right to bear arms, there are certain restrictions placed on handling loaded firearms in public. Other than the relevant federal laws, the state of California has its gun laws that regulate the carrying of loaded weapons. These are among the strictest gun control regulations in the entire nation.

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Recent Gun Control Measures

To further enforce gun ownership regulations, the state recently passed bills that implemented the following changes:

  • Increased age of purchasing shotguns and rifles to 21, up from 18 years.
  • Made it harder to own devices with multi-burst triggers.
  • Recommended lifetime bans on firearm ownership for anyone convicted on charges of domestic violence, or inadvertently hospitalized on mental health grounds more than once in a given year.

 Laws concerning the carrying of loaded firearms are contained in California penal code 25850.

California’s Gun Laws

Under California’s Penal Code 25850, it is illegal to carry a loaded firearm in public or a vehicle in your possession. This applies to any public place or street located in an incorporated city or prohibited part of the unincorporated territory. 

While California’s restrictive gun control regulations are meant to enhance public safety, sometimes innocent civilians might find themselves on the wrong side of such laws. To determine whether a gun is loaded, law enforcement officers are authorized to scrutinize any firearm you carry in public, either on your person or in a vehicle.

Refusing to allow an officer of the law to inspect the firearm could lead to arrest.

What it Means to Carry a Loaded Firearm in Public

Due to the complex nature of the law, it can be hard to understand precisely what it means to be accused of carrying a loaded gun in public. To avoid confusion and ambiguity, there are specific definitions for various aspects of this violation.

According to Penal Code 25850(a), you’re guilty of breaking the law if you carry a loaded firearm on your person or in a vehicle in any public place.

A firearm is considered loaded if it meets the following criteria:

  • It contains an unexpended shell or cartridge.
  • It has a case that contains a powder charge or bullet inside or somehow attached to the firearm.

If you’re carrying a muzzleloader firearm, it will be considered loaded if it meets the following two conditions:

  • It’s primed or otherwise capped.
  • Has a charge of powder and a shot or ball in its cylinder or barrel.

These are the guidelines used by peace officers to determine whether a firearm in your possession is loaded.

A firearm is defined as a device intended to be operated as a weapon, which can expel a projectile through a barrel, using an explosion or another method of combustion. This encompasses devices capable of launching rocket-propelled projectiles, or any device containing incendiary materials.

A public place is referred to as any place that is open to the general population and includes most government buildings and infrastructure.  A prohibited area, on the other hand, is any place where the law forbids you to discharge a firearm.

Penalties for Violating California’s Gun Regulations

If found in possession of a loaded firearm, your case could be treated as a wobbler. This means it could be punishable as either a misdemeanor or a felony. Depending on the exact circumstances, you could be punished in the following ways:

  • If convicted of a crime, you could receive an informal or summary probation. You could also serve up to a year in jail and receive a fine of up to $1000.
  • Aggravating circumstances could easily see you convicted of a felony. A felony charge under such conditions could see you serve a term of up to 3 years in county jail as well as receiving a fine of up to $10,000.

Aggravating circumstances include previous convictions under the state’s gun laws, having a stolen firearm, having a gun that is not registered to you, and engaging in criminal activities as a member of a street gang.

These circumstances can escalate your conviction to either a wobbler or to a straight felony. 

Wobbler Conviction

Having considered the particular cause of your arrest as well as your criminal history, the violation will be treated as a wobbler if, apart from carrying a loaded firearm in public:

  • You have a previous conviction of a misdemeanor crime against an individual or property or have previously been convicted for violating California’s drug crime laws.
  • The Department of Justice does not recognize you as the owner of the loaded firearm that was found in your possession.

If convicted on felony charges, you face penalties of 16 months, or two to three years in county jail, and an additional fine of $1000.

Straight Felony Conviction

If charged with a straight felony, it cannot be reduced to a misdemeanor charge. Circumstances that might attract a straight felony conviction include:

  • Previously convicted of violating California’s gun laws.
  • If you've been found carrying a loaded firearm when you knew or had reason to believe the gun was stolen.
  • Having a firearm when you’re prohibited by law from owning, possessing or handling one, and
  • Being an active member of a street gang involved in criminal activities.

It’s important to understand that you could be found guilty of participating in a street gang even if your arrest on charges of carrying a loaded firearm is not directly linked to your active involvement in one.

Expungement of a Penal Code 25850 PC Conviction

Even after being prosecuted under a felony, it is possible for a jury to reduce the charge to a misdemeanor. It is also possible for a judge to expunge your criminal record after serving the probation period of a misdemeanor conviction. Such expungement will be subject to your adherence to the terms and conditions of the probation.

Collateral Consequences of a Conviction

A PC 25850 conviction can also lead to collateral consequences. These refer to some civil state penalties that automatically apply to your criminal conviction. In case you’re a legal immigrant and get convicted for carrying a loaded firearm, the state could deport you as an additional penalty. 

For you to be convicted of carrying a loaded firearm, the prosecution must prove beyond reasonable doubt that:

  • The gun in your possession at the time of arrest was indeed loaded.
  • You were aware of the presence of a loaded gun on your person, luggage or inside your vehicle.
  • You were in a public facility or place.
  •  Where applicable, you were not the registered owner of the loaded firearm.

If your attorney can successfully challenge the prosecutor based on these elements, you have a decent chance of beating the charges brought against you. It is important to note that you’ll still be considered to have committed an offense even if your loaded firearm is not in good working condition.

Prior Firearm Convictions

If you face charges of violating PC 25850 and have previous convictions relating to:

  • Committing assault with a deadly weapon (Penal Code 254 PC violation)
  • Shooting at a car or dwelling that is inhabited (Penal Code 246 PC violation)
  • Public display or brandishing of a deadly weapon (Penal Code 417 PC violation)
  • Any other violation of California gun laws,

You will serve a mandatory minimum sentence of three months in the county jail.

Owning a Firearm after a PC 25850 Conviction

Being convicted on a misdemeanor charge alone isn’t enough to have your gun ownership rights revoked. If the court also judges you to be a minor, or ward of the juvenile court, you’ll be banned from owning or having a firearm in your possession until you turn 30 years old.

Once convicted under a felony charge, you will be banned from owning, handling or possessing a firearm for the rest of your life. If your felony conviction occurs under a wobbler aspect of PC 25850, you have a chance of arguing for the reduction to a misdemeanor. If successful, you will have your gun ownership rights restored.

Theoretically, you could have your gun possession rights restored after successfully applying for a certificate of rehabilitation, and after receiving a governor’s pardon. This is a long shot though, and will not be applicable if your conviction involved the actual use of a firearm or any other dangerous weapon.

Under California law, a dangerous weapon is defined as any weapon, object, or instrument with a capability of causing great bodily harm or death. A loaded firearm is therefore considered a dangerous weapon under this definition.

Exemption from Prosecution

Under certain circumstances, you might be exempted from prosecution for carrying a firearm in public. Such circumstances include:

  • Being an active or honorably retired California peace officer.
  • Being a full-time peace officer employed by another state or the federal government. If you’re on official assignment in California, you won’t be prosecuted for carrying a loaded firearm in public.
  • Being an honorably retired federal agent resident in California with permission from your county sheriff to carry a loaded firearm. Federal agents include members of the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), the Drug Enforcement Agency (DEA), among many other federal agencies in the country.
  • Being a member of the US armed forces. This exemption only applies to members of the California National Guard or US military who are actively performing their duties.
  • Having completed a firearms training course approved by the Commission on Peace Officer Standards and Training (POST certification). Exempted individuals under this program include but are not limited to school district police officers, district attorney investigators, and animal control officers.
  • Having a loaded gun in a shooting range or for purposes of hunting. This exemption is subject to being permitted by the city council. You’re also required only to carry a loaded firearm in those specifically designated areas. While transporting the weapon from and to these facilities, it should always be in a locked repository.
  • Having a concealed carry permit.
  • Being a private investigator, armored vehicle guard, or security guard.
  • Having a loaded firearm on private property or your business premises.

For the last exemption, you’re only protected if the loaded firearm remains on your business premises or private property. If found with the weapon in a public setting other than the specified locations, you will be charged with violating Penal Code 25850.

Defenses to Carrying a Loaded Firearm

If you find yourself accused of taking a loaded gun, there are a few arguments you can make in your case. The most common are listed below:

  1. You didn’t know you were carrying a firearm

You might find yourself in a situation in which you’re taking a gun without being aware of it. This could be due to using a bag without checking its contents first, or someone else maliciously slipped the weapon into your luggage.

  1. You didn’t know you were carrying a loaded firearm

Sometimes you might be aware that you’re taking a gun but be unaware that it’s loaded. It’s only natural for people to make mistakes once in a while.

  1. You had a firearm, but it wasn’t loaded

In some instances, it might serve you well to plead to a lesser charge of carrying an unloaded weapon.

  1. You didn’t carry a loaded firearm in a public place

If you can successfully argue that you were not in a public place when you were arrested with a loaded weapon, you stand a chance of beating the charges brought against you.

  1. The loaded firearm was carried as a self-defense measure

This defense might work if you feel there’s a real possibility of your life being in danger. If for example someone has been stalking or threatening you, you might be justified to carry a loaded gun because you’re not sure of their exact intention.

  1. The arresting officer did not follow due process

If the arresting officer fails to read you your Miranda rights, or goes against the laid down protocols, your lawyer could argue for the charges to be dropped on a technicality.

  1. You are permitted by law to carry a loaded firearm

This defense applies if you’ve been wrongly arrested for carrying a loaded gun. Certain individuals are allowed by law to take such weapons in public places. If you’re a peace officer, active or retired federal agent, or have a permit from your county sheriff to carry a loaded firearm, you stand an excellent chance of charges being dropped.

  1. Outright misconduct on the part of the arresting officer(s)

Not every law enforcement officer you encounter will adhere to high ethical standards. Some of them might engage in corrupt activities like planting evidence, threatening or coercing you into confessing, making false reports, and conducting unreasonable searches.

Why You Need a Qualified Attorney

If you’re ever accused of carrying a loaded firearm in public, you should do your best to engage the services of an experienced lawyer as soon as possible. 

Attorneys understand the law and its complexities, so they can quickly figure out how to scrutinize and challenge evidence. If the evidence brought against you by the prosecution is defective, your lawyer will use that angle to cast doubt on the prosecution’s competence.

Due to their firm grasp of the inner workings of the justice system, attorneys can do the heavy lifting on your behalf as you prepare for the hearing of your case. Some legal procedures, such as filing paperwork and meeting certain deadlines, can overwhelm you if you choose to do them by yourself.

An attorney also has valuable insights concerning your case, as a result of taking part in many similar trials. Such insights can include how to cross-examine witnesses, how to spot loopholes and use obscure clauses of the law to your advantage. They are also better placed to negotiate plea bargains and settlements that might end up saving you a lot of time and money.

Have You Been Charged with Carrying a Loaded Firearm?

If you’ve been accused of violating California’s loaded firearm regulations, you should hire Leah Legal for the best defense of your case. Headed by the talented and aggressive Leah Naparstek, you can rest assured that she will use her legal prowess to fight for your best interests.

Her tireless energy and passion for improving the community make her your best bet for a positive outcome. Having successfully defended many other clients against seemingly insurmountable odds, her never say die attitude will inspire you to believe there may be hope for your case. To make an appointment and for a more in-depth discussion of your legal options, feel free to call my criminal defense law firm at 818-484-1100.