California is among the states famous for its stringent firearm regulations, particularly as far as carrying loaded firearms publicly is concerned. Whereas the Second Amendment to the United States Constitution protects citizens’ right to bear arms, California statutes tightly regulate where, when, and how you can carry a gun. Any violation of these rules, even unintentional violations, can subject you to severe criminal consequences. If you have been accused of a gun offense, including carrying a loaded gun, consulting a knowledgeable criminal defense lawyer is crucial to safeguard your rights.
At CCLG: Los Angeles Criminal Attorney, our lawyers have been successfully defending clients facing prosecution for gun offenses for years. We can assist you in navigating the criminal process flawlessly and obtaining a favorable outcome. Once you share your case, we will thoroughly analyze the facts and develop the most compelling legal strategies that can improve the odds of your criminal charges being reduced or dismissed altogether. Contact us today to obtain the help you need.
An Overview of the California Crime of Carrying a Loaded Firearm
Section 25850 of the Penal Code criminalizes carrying a loaded firearm. According to this law, it is criminal to carry any loaded gun on you or inside an auto on public streets or in public areas within an incorporated city or a restricted unincorporated area. A firearm is deemed loaded when ammunition is in a position that permits the gun to be fired.
Many people unconsciously violate this statute by carrying loaded firearms under their car seat or in their vehicle’s glove box. Unluckily, ignorance of the law is not a legitimate defense. That is why you need to consult defense counsel if you are arrested for a gun offense.
Under PC 25850(b), a police officer may examine a gun carried publicly to determine if it is unloaded or loaded. Declining to submit to inspection might provide probable cause for arrest under PC Sec. 25850.7.
The law does have a few exceptions. It allows specific persons to carry a loaded gun legally, including:
- Individuals inside their home or business place
- Licensed anglers and hunters participating in legal outdoor activities
- Licensed security persons
- Retired or active law enforcement
- Persons possessing a valid and current CCW (Concealed Carry Weapon) permit
These exceptions, however, have strict restrictions. A lawyer can assist in interpreting these regulations to see whether you are eligible for a valid defense contingent on any of the mentioned exemptions.
Open Carry vs. Concealed
California strictly restricts both concealed and open carry. Publicly displaying any loaded firearm is mostly forbidden, especially in densely populated areas and cities. Concealed carry, on the other hand, necessitates a valid concealed carry weapon license. Local authorities issue this license at their discretion.
If a police officer catches you carrying a concealed loaded gun without a license, you can face severe legal consequences. In these kinds of cases, a criminal defense counsel can review whether the stop, search, and seizure were legal and contest any procedural mistakes in court.
Elements The Prosecuting Attorney Must Prove
For the jury or judge to find you criminally liable for violating PC 25850, the prosecuting attorney must demonstrate three facts making up the crime beyond any doubt. These are known as elements constituting the crime. They are the following:
- You carried a gun that was loaded in your automobile or on you
- You were conscious of the fact that you had carried the gun
- You carried the gun publicly, on any public street or public place in an incorporated area or city, where discharging a gun was unlawful
A public street or place is one open to general and common use and easily accessible to any person wishing to visit without any barrier. Prevalent examples include businesses or city streets open to the general public. The following places apply to this statute:
- A public place in a forbidden area of a county, or a county and a city
- A public street or public place in an incorporated city, or a county, and a city
- A public street in a forbidden area of an unincorporated area of a county, or a county and a city
California courts have ruled that a public place is not the same as public property.
A firearm, or a gun, is a machine intended to be utilized as a weapon, from which a projectile is discharged via a barrel through an explosion. Prevalent examples of machines categorized as guns are revolvers, pistols, shotguns, and rifles. The law does not categorize BB guns and pellet guns as firearms.
Lastly, under California statute, a loaded gun is one with an unexpended shell or cartridge in its magazine, attached clip, or firing chamber.
Remember that to be found criminally liable under PC 25850, you must be aware that you had carried the firearm. However, the prosecution need not prove that you knew the gun in question was loaded. It also does not count whether the gun was operable at the time of arrest.
Consider this scenario: Henry is driving. He has a friend, Alex, in the car. Alex places his firearm in Henry’s car’s glovebox but does not tell Henry the gun is loaded, so Henry has no idea. In this scenario, Henry should not be found criminally liable under PC 25850, as he never knew that the weapon was loaded.
On the contrary, consider that Henry saw Alex place his gun in the glovebox before he started driving. He knows the gun is there, but, for some reason, he assumes it cannot be loaded. Law enforcement pulls Henry over, and they determine that the firearm is loaded. Henry can be convicted of violating PC 25850 despite not knowing that he never knew the firearm was loaded.
Consequences for PC 25850 Violations
Violating PC 25850 is typically a misdemeanor violation. A conviction can subject you to no more than 12 months in jail and a fine of $1,000. However, when aggravating elements are present, violating PC Section 25850 is a felony.
If you do not own the firearm in question or were previously found criminally liable for specific drug or misdemeanor offenses, violating PC 25850 becomes a wobbler offense. A misdemeanor is punishable by a maximum of 12 months in jail and no more than $1,000 in court fines. A felony is punishable by 3 years, 2 years, or 16 months in jail and a court fine not exceeding $10,000.
If you have a prior gun or felony conviction, the firearm was stolen, you belong to a street gang, the firearm was not legally possessed, or you have been lawfully banned from possessing firearms, you will be subject to felony charges. A conviction carries a term of 3 years, 2 years, or 16 months, and a fine of no more than $10,000.
Note that after you have been convicted of PC 25850, you will be subject to a minimum jail sentence of 3 months if a court has previously found you guilty of brandishing a gun or weapon, shooting an occupied automobile or inhabited structure, or assault using a dangerous weapon.
Firearm Rights
Under California law, being found criminally liable for any felony offense will strip you of your right to possess, purchase, or own a gun. And since carrying loaded firearms can be a wobbler felony or a straight felony, you can lose your right to bear arms if convicted of a felony. This ban applies to both adult and child offenders prosecuted and convicted in adult criminal court.
A conviction for a misdemeanor should not impact your firearm rights unless you are adjudged a ward of the juvenile court in the case. In this case, you may not possess, own, or buy a gun until you are thirty years old.
However, if the jury or judge found you liable for a wobbler felony, you might successfully restore your firearm rights by requesting the court to reduce your felony charges to misdemeanor charges and petitioning to have the charges dismissed. The only other avenue to restore your firearm rights after a conviction of a felony is via a governor’s pardon.
Immigration Consequences
Based upon the circumstances surrounding the case, a conviction under 25850 PC can lead to deportation. Thus, if you are an immigrant accused of violating PC 25850, you should hire a lawyer to try to have your charges dismissed or lowered to a non-deportable violation.
Defending Against PC 25850 Violation Charges
The following defenses can persuade prosecutors, juries, and judges to have PC 25850 charges dismissed or lowered:
You Never Knew You Had Carried the Gun
In a PC 25850 violation case, your lawyer can gather all the necessary evidence to cast reasonable doubt regarding what you knew or were not aware of. For example, maybe surveillance footage exists of somebody planting the firearm in your auto or person.
The Gun Was Not Loaded
Your lawyer can work closely with a forensic expert who might successfully prove that the firearm in question does not satisfy the legal description of loaded. However, in this case, you may still be charged with carrying an unloaded firearm.
Illegal Searches and Seizures
Many weapon crimes, including PC 25850 charges, are pursued after authorities pull suspects over to investigate. It could be that you:
- Had your vehicle been illegally parked
- Were speeding
- Resembled a person who is a suspect of a violation.
While the law enforcement officer is frisking or talking with you, they notice you have carried a loaded gun. In any case, the Fourth Amendment to the United States Constitution safeguards you from illegal searches or seizures. Before a police officer can legally search you and your property, the law requires that they have the following:
- Probable cause for conducting the search. Probable cause is the reasonable belief that you pose a danger to the officer’s safety or are participating in criminal activity.
- A legal search warrant that permits them to search you or your property. They must strictly adhere to the search warrant’s scope.
- Your authorization to search you or your property
Any gun found and taken during an invalid search is not admissible as evidence. In this case, your defense counsel can file a motion to suppress evidence, requesting the presiding judge to strike out the gun as evidence. Should the judge grant this motion, the unlawfully obtained firearm will be excluded as evidence. When this happens, the district attorney may be compelled to drop the charges against you for the absence of evidence.
Police Misconduct
If an arresting officer commits one or more of these acts, they have committed police misconduct:
- Coerces you into confessing
- Gives false testimony regarding the facts surrounding your case
- Writes false information in the police report that the weapon was loaded, but it was empty
- Plants a loaded weapon in your vehicle or on your person
- Otherwise, it violates your rights
If your defense counsel discovers police misconduct like the one above, they can file a Pitchess motion. If the motion is successful, you can check whether other individuals have previously complained about the misconduct of the same arresting officer. If you fell victim to officer misconduct, the presiding judge or prosecutor may drop the accusations against you. Alternatively, the jury might return a not-guilty verdict following the jury trial.
You Carried the Firearm to Defend Yourself
You may successfully challenge accusations of violating PC 25850 by arguing self-defense. This legal defense will apply if you had reason to believe your life was in danger due to other individuals’ specific conduct or threats, which warrants the basis for a court-issued restraining order.
The Law Exempts You
As mentioned earlier, PC 25850 may not apply to certain groups of people. If you fall under one of these groups, you may have a valid defense. These people include the following:
- Recreational shooter
- A U.S. military member
- An agent of any federal law enforcement agency, such as the FBI
- Honorably retired or active California peace officer or police officer
- A CCW permit holder
- Authorized money transporter or security guard
The Gun Was In Your Business or Residence
Provided you otherwise have the right to carry a firearm, you can carry any loaded gun in your home or business you own (not a place you simply work). Generally, the rule does not apply to individuals who work or live in their vehicles. When arguing this defense, your lawyer can try to prove to the district attorney that they do not have enough evidence to show you carried a loaded gun outside your business or home. If they succeed in proving this, the D.A. should dismiss the case.
Record Expungement
You can have your PC 25850 conviction record erased from your criminal record after you finish serving your felony or informal probation term or jail time (whichever the court imposed). After an expungement, your conviction record will no longer show on criminal background checks.
A conviction record, particularly a felony conviction, can make it difficult for you to obtain employment, rent an apartment, enroll in higher education, and obtain a professional license. Employers, landlords, licensing boards, and educational institutions usually conduct criminal background checks, and finding a felony conviction may be problematic.
An expungement removes most of these hardships. Since your conviction record will no longer reflect on background checks, you can even answer “no” if you are asked whether you have been convicted of the expunged crime.
However, remember that expunging your record will not hide it completely from the government or law enforcement agencies. The record remains fully accessible to police agencies and prosecutors. If you are rearrested or apply for a particular law enforcement or government position, you will be required to mention the expunged conviction.
PC 25850 Violations and Related Crimes
Some violations share certain elements with the crime of carrying a loaded firearm. The law, therefore, deems these crimes related. The prosecuting attorney can prosecute you for any of the related crimes instead of or alongside a 25850 PC violation based on the elements they can prove. The crimes include the following:
PC 25400, Carrying a Concealed Weapon
25400 PC criminalizes carrying any concealed gun in an auto or on you. Carrying any concealed weapon is a violation of the law, whether or not the gun is loaded. The punishment for violating this law is contingent on your criminal history and the facts surrounding the case. The crime can be a felony or a misdemeanor. A misdemeanor conviction carries a maximum of 12 months in custody, summary probation, and a court fine of no more than $1,000. A felony conviction, on the other hand, carries no more than three years in custody and a court fine of $10,000
PC 26350, Openly and Publicly Carrying an Unloaded Gun
PC 26350 criminalizes openly and publicly carrying an unloaded gun. This law repealed California’s restrictive open carry laws. Violating PC 26350 is considered a misdemeanor. Upon conviction, you will face time in county jail for up to 12 months and a court fine that does not exceed $1,000. The judge could impose both a court fine and custody time if you do not own the gun in question or if you were also carrying unexpended, dischargeable ammunition. Also, these consequences are for every unloaded firearm you carry.
PC 26500, Selling Firearms Without a License
PC 26500 makes it illegal to lease, transfer, or sell a gun without a legal permit to do so. Every firearm you transfer, lease, or sell without a license attracts a distinct violation. Violating PC Section 26500 is a misdemeanor. If you are found guilty, your punishment will include no more than six months in county jail and a court fine of no more than $1,000. These consequences are imposed for every gun you sell when you have no legal permit.
PC 29800, Felon with a Firearm
Under PC 29800, a felony with a gun is the offense where any convicted felon purchases, possesses, or owns a gun. If authorities catch you carrying a loaded gun and you had previously been convicted of any felony, you may face a felon in possession of a firearm charge alongside or instead of 25850 PC violation charges. Violating PC 29800 is a felony. If convicted, you can be imprisoned for a maximum of three years or face hefty fines.
Other violations related to carrying a loaded gun include the following:
- Carrying a gun in violation of the Gun-Free School Zone Act
- Carrying a loaded gun when you are not the registered owner
- Unlawful possession because of a conviction, mental illness, or court order
- Carrying a gun while actively participating in a criminal street gang
- Carrying a stolen gun
Tips to Remain Compliant
The best way to avoid prosecution for carrying a loaded gun or any other firearm-related offense is to remain compliant with the law. These practices can help you:
- Avoid carrying a gun while intoxicated with alcohol or drugs
- Keep all documents of your gun ownership up-to-date
- Obtain a concealed carry weapon license if you intend to carry a gun regularly
- If you are transporting guns, transport them while they are unloaded and locked away in a container
- Keep being informed of the updates to the state’s gun regulations
If you have any doubt, consult a skilled criminal defense lawyer to clarify your legal obligations.
Evolving Legal Trends and Laws
California often updates its gun laws to address public safety concerns. These are the latest updates:
- Harsher red flag statutes
- Increased regulation on ghost firearms
- Restrictions on high-capacity magazines
- Tighter criminal background checks
What is legal now might be illegal tomorrow. Regular consultations with a defense counsel will ensure you stay in adherence to the current legislation.
Find an Experienced Criminal Defense Counsel Near Me
Carrying a loaded gun in California without the right legal clearance is a severe crime that can subject you to harsh penalties and long-term repercussions. Whether you meant to violate the law or you made a genuine mistake, the California legal system often offers little leniency without expert legal representation. A skilled defense counsel can be your strongest ally. At CCLG: Los Angeles Criminal Attorney, we have a track record of success fighting for clients accused of gun-related crimes. We assist clients in navigating the intricate legal process, asserting their rights, and pursuing the most favorable outcome. Do not risk your future and freedom. If you are facing charges in Los Angeles or the surrounding areas, contact us today at 323-922-3418 for a complimentary, confidential consultation and case evaluation, and take a step towards safeguarding your future and rights.
