After the amendment of the California constitution for the second time, residents can now own and possess certain types of firearms legally. However, there are strict laws surrounding firearm ownership and usage to protect people from all sorts of violent crimes that could result from the wrongful use of the weapon. Carrying a loaded firearm is unlawful, and you might be at risk of a prison sentence and hefty fines for the gun offense. We at Los Angeles Criminal Lawyer understand the consequences of any gun offense in California because of our significant experience protecting clients with different gun charges. Do not let this gun crime cripple your life or affect your gun ownership rights, contact our skilled attorneys immediately after an arrest for carrying a loaded firearm for a thorough investigation of your case and to help you create proper legal defense strategies.
An Overview of Gun Offenses
To regulate the possession, sale, and use of firearms, California has set the most restrictive gun laws in contrast to laws in other states. Many Californians can possess and own a firearm under certain strict conditions. To possess a gun legally in California without a license, you’ve to be at least age 21 and above. Still, some individuals are not eligible to possess firearms because of their criminal history and behavior, such as felons and drug addicts.
After acquiring your firearm, you must handle the weapon safely every time and anywhere, even when it’s not in use. Whether in your house or your car, you must store your unloaded gun safely in a locked container. Carrying a loaded firearm in a public area is considered a gun offense in California apart from a few exempted people, such as police officers and other law enforcement officials.
Unless you’ve got a valid license to carry a concealed weapon, if you carry a loaded or unloaded firearm in public, you can be charged for violation of California gun laws. Carrying an unloaded firearm is a different separate crime from carrying a loaded firearm. In this article, we will major in one specific gun offense of carrying a loaded firearm in California, aggravating factors of the offense and related offenses. You’ll want to retain a criminal lawyer with good knowledge and understanding of California gun laws like a Los Angeles Criminal Lawyer if you’re allegedly in trouble for carrying a loaded firearm to protect your interests.
Carrying a Loaded Firearm Crime Elements
Under California penal code 25850, it’s a criminal offense to carry or possess a loaded firearm in public areas, whether on your person or your car. The purpose of this law is to protect people from violent crime encounters with criminals with loaded firearms in public. Violations of Penal Code 25850 is a misdemeanor offense which affects several people in California. A law enforcement officer might arrest you for this offense, even if you carried the loaded firearm mistakenly. However, you'll not be guilty until the prosecutor proves specific crime elements of this offense to the tribunal above a reasonable doubt. The following are crime elements that the prosecutor can use to build a case against you for carrying a loaded firearm:
You Carried the Loaded Firearm on Your Vehicle or Your Person
You would not be guilty for violation of California penal code 25850 if you had an unloaded firearm during the time of the arrest. However, the prosecutor can still choose to file other gun charges against you, such as carrying an unloaded firearm in public. For the sake of proving this element of the crime, two confusing terms arise, that is, “firearm” and “loaded.” A firearm is any weapon device that discharges projectiles through a cylinder by an explosion force such as pistols or rifles. On the other hand, a firearm is “loaded” if it has an unexpended shell or cartridge in the chamber or if it is capped and has the power to shoot a shot or a ball. Under California law, the defendant is guilty of this offense if he/she had any type of a loaded firearm, whether in his/her vehicle or on his/her person.
You Were Aware that You Had a Firearm
The prosecutor carries the burden of proof to establish to the judge above a reasonable doubt that you had knowledge or intent to carry the loaded firearm. You would not be guilty of this offense if you were not aware of the presence of a firearm on your vehicle or your person. Therefore, you can always use this as a legal defense with the help of your criminal lawyer anytime there are allegations of you carrying a loaded firearm in public.
You Were in a Public Place
Being in a public place is the third crime element of this gun offense that the prosecutor must show the judge during the trial for the defendant to be guilty. A judge will take into account whether the defendant was in a public street or restricted area during the time of arrest before making the judgment for this case. For the sake of proving this element of the crime, a public place is any location or place which is accessible and open for anyone wishing to use the area.
To exercise the requirement of California penal code 25850, law enforcement officers have the authority to examine your type of firearm before making an arrest. Resisting a police arrest can constitute the possible cause of an arrest for this gun offense. To protect yourself from the potential penalties and consequences of the offense, you should consider seeking the services of a criminal lawyer for legal representation during trial.
During prosecution, your criminal defense lawyer should be very attentive and with excellent communication skills to be able to keep up with the trial back and forth type of communication for better legal defense strategy using the prosecutor crime elements of the alleged offense. The benefits of retaining a lawyer with excellent communication skills also reflect on your working relationship with the lawyer, which means he/she can be able to explain legal terms to you in a way and manner you can understand best.
Penalties for Carrying a Loaded Firearm in California
Just like any other gun offense, carrying a loaded firearm in California carries harsh penalties. It can also lead to loss of gun ownership rights if found guilty of the offense. Typically, the prosecutor will charge this offense as a misdemeanor if no other aggravating factors are surrounding the offense. The district attorney could choose to charge this gun offense a “wobbler,” meaning it could be either a felony or a misdemeanor offense. Under certain circumstances, the district attorney could also charge this offense as a straight felony. Violators of California penal code 25850 are subject to:
One-year jail sentence for a misdemeanor charge and up to three years jail term for a felony
A penal fine of up to $1,000 for both misdemeanor and felony charges
Informal probation of three to five years if there is no jail sentence for misdemeanor charges. If there is a jail sentence, the probation period will likely be shorter
The district attorney will charge carrying a loaded firearm as a straight felony if there are other aggravating factors or circumstances surrounding the offense. Aggravating factors in crime make the offense severe in terms of penalties. Here are some of the aggravating factors which could make carrying a loaded firearm a straight felony in California:
The defendant was not the legally registered holder of the firearm
The defendant has prior conviction history for a crime against property or person
The defendant is a member of a notorious street gang
The defendant has a prior criminal conviction history for crimes such as possession or distribution of controlled narcotics
The defendant was not authorized to own a gun due to health issues such as mental illness
When the district attorney imposes straight felony charges, the defendant will be subject to a maximum fine of $10,000 and three years of custody in the county jail. Additionally, to non-citizens, there might be immigration consequences with the Depart of Homeland Security (DHS). There are always immigration consequences such as deportation for violators of gun laws in California. It will be in your best interest if you have a criminal defense lawyer in your corner after an arrest for violation of California penal code 25850, whether you’re a US citizen or not.
Common Legal Defenses for California Penal Code 25850
Bearing in mind the possible penalties and consequences for violation of California penal code 25850, you’ll sorely rely on your criminal defense lawyer for protection against the gun charges. A knowledgeable criminal defense lawyer can raise the following arguments as a legal defense for violation of Penal Code 25850:
You Carried the Firearm for Self Defense
If you’ve got a reasonable and trustworthy belief that you could be at risk of imminent danger or bodily harm, you can carry your firearm with you in California for self-protection against the danger. The use of self-defense as an argument of defense is applicable in most criminal cases and can exonerate you from the charges. For instance, if there is an existence of a restraining order and you had a reasonable belief that the person subject to the restraining order would try to attack you or cause imminent bodily injury to you or someone else. In that situation, the judge might find it reasonable to carry a loaded firearm for self-defense if there is an existence of a restraining order because any reasonable or standard person would do the same under similar circumstances. This legal defense is viable if the defendant is a registered legal holder of the firearm and has no criminal history.
There Were Unlawful Search and Seizure
A law enforcement officer has no legal right to search you or your vehicle without a probable cause or valid search warrant. Law enforcement officers will only have the legal right to conduct a search and seizure exercise on you or your vehicle only if you’re lawfully under arrest for a particular criminal offense. Even if the law enforcement officers have a valid search warrant, their search should not exceed the scope of their search warrant. The judge will not take into consideration pieces of evidence seized through unlawful search and seizure. Therefore, this legal defense could also exonerate you from this firearm charge if your criminal lawyer can demonstrate to the judge that the search of the evidence was unlawful.
You Didn’t Have Knowledge of the Presence of the Firearm
Contrary to the prosecutor’s crime elements that you were aware of the presence of the firearm on your vehicle or your person, your criminal defense lawyer can also raise this argument as a legal defense for carrying a loaded firearm in public. Lack of knowledge or awareness of the presence of a firearm on your person or your car does not constitute a violation of California penal 25850. Such a case is possible if someone mistakenly delivers a package to you with a loaded firearm unknowingly that you couldn’t possibly realize as well. In that situation, you'll not be guilty of carrying a loaded firearm because you were not aware of its presence in the package.
The Firearm You Had in Possession Was Not Loaded
Although a person might be carrying a firearm, it doesn’t necessarily mean it’s loaded as many people tend to presume. The defendant should not be guilty of carrying a loaded firearm offense if he/she had an unloaded firearm in possession during the time of the arrest. But the district attorney may choose to impose other charges on the defendant, such as violation of penal code 26350, which makes it a punishable crime to carry an unloaded firearm in public openly.
You’re Exempted by California Law to Carry a Loaded Firearm in a Public Area
A specific class of people is in exemption from criminal accountability under California penal code 25850, meaning they can legally carry or possess a loaded firearm in a public area. These people include (but not limited to):
An FBI agent
Individuals with a concealed gun permit
If you don’t fall under the exempted list of people with legal authority to carry and possess a loaded firearm in public, the judge will find you guilty for violation of Penal Code 25850. However, your criminal defense lawyer can still find numerous legal defenses to exonerate you from this criminal charge.
The Defendant Was Not in a Public Area or Any other Prohibited Area During the Time of Arrest
Being in a public area or any other restricted area during the time of arrest with a loaded firearm is one of the vital crime elements for violation of penal code 25850, which the jury takes into account before giving the final judgment for this offense. If for some reason, the arresting officer is unable to explain the location that he/she arrested you, the judge might have to dismiss the case based on weak evidence to prosecute you because the officer cannot determine if the area was public or not. Prohibited/restricted areas where people must not carry a loaded firearm include places close to schools, state buildings, post offices, or federal buildings. Carrying a loaded firearm in hunting areas does not constitute a violation of California penal code 25850 because it is not a public place as defined under the statute.
Other Criminal Offenses Related to Violation of Penal Code 25850 in California
Prosecutors will always try to find other related criminal offenses to charge you when their evidence is not viable in court to hold you guilty for violation of penal code 25850. Other times the prosecutor might find enough evidence to convict you of this offense and other related offense(s) at the same time. Below are other criminal offenses related to violation of California penal code 25850:
Carrying a Concealed/Hidden Firearm
A person violates Penal Code 25400 of the California gun law if he/she carries a concealed firearm without a valid license for the possession of such a concealed firearm. A concealed firearm could be any type of firearms such as a revolver or a pistol that is hidden or rather kept as a secret from the public. The prosecutor will generally file this charge as a misdemeanor if there are no other aggravating circumstances. In that case, the guilty defendant may face an imprisonment of up to one year in the county penitentiary and additionally pay a fine amounting up to $1,000.
Carrying an Unloaded Firearm in Public Openly
Most prosecutors will try to impose this charge on a defendant if they lack enough evidence to convict him/her for violation of penal code 25850. According to Penal Code 26350 of California’s gun law, possessing or carrying an unloaded firearm in a public space is a misdemeanor offense that is punishable by a jail sentence of one year and up to $1,000 fine.
Find a Criminal Lawyer Near Me
Carrying a loaded firearm, whether it's functional or not, could cost you your freedom and also make you incur unnecessary losses due to the hefty fines the judge imposes for the crime. We invite you to contact the Los Angeles Criminal Lawyer at 310-502-1314 to schedule a free consultation with our team of skilled criminal lawyers when you face gun charges in California.