It is an offense under the California Penal Code 25850 for anyone to carry a loaded firearm in public. If the court finds you guilty of possessing a loaded firearm in public, you could face criminal charges for violating PC 25850. In addition, you could face a misdemeanor or a felony. Often, prosecutors prosecute this crime as a misdemeanor for first-time offenders. Then, however, the prosecutor could charge the offense as a felony. Carrying a loaded firearm in public is a serious crime because it attracts severe punishment, including jail. If the prosecutor accuses you of having a loaded gun in public, you should immediately contact a skilled firearm defense attorney. At the California Criminal Lawyer Group, we are ready to defend people facing criminal charges in Santa Ana.
Carrying a Loaded Firearm Explained
Penal Code 25850 highlights various violations which could lead to prosecution. Generally, the prosecutor could prosecute you for violating this statute if you carry a loaded firearm on your person or in your vehicle in a public area or street.
Penal Code 25850 also makes it an offense when you do the following:
- Carry a firearm violating Gun-Free School Zone Act
- Carry a gun while an active member of a gang
- Carrying a loaded concealed firearm when you are an unregistered owner
- Carrying a loaded firearm while you are not a registered owner
- Carrying a stolen firearm
Elements Of The Offense
If the prosecutor accuses you of violating Penal Code 25850, he/she has a burden to prove you are guilty of this crime. This statute requires the prosecutor to demonstrate some elements for you to face charges. Some of the factors include:
- You carried a loaded firearm on your person or in your vehicle
- You were aware you had the firearm
- When carrying a loaded firearm, you were in a public area, on a public street, or in a location deemed unlawful to discharge a firearm
A Loaded Firearm
According to the law, a firearm is loaded if:
- The cartridge or shell is in a magazine or clip attached to the firearm
- An unexpected cartridge or shell is in the firing chamber
Additionally, this statute requires you to know about the firearm's presence. Therefore, the prosecutor can only prosecute you under Penal Code 25850 if you know of the firearm's presence. However, this statute does not require that you know that the gun is loaded.
Typically, the working condition of the firearm does not matter. The only issue is if the gun was loaded and could fire.
Definition Of "Firearm" Under California Law
The law defines a firearm as a device designed to work as a weapon, from which projectiles discharge from its barrel by an explosion. Common firearms include shotguns, rifles, revolvers, tasers, and pistols. Pellet guns and BB guns do not fall under this definition because they are not fired by combustion and are not firearms.
A Public Area
Public areas are regions open to anyone wishing to visit for everyday or general use. Public areas include but are not limited to parks, streets, or highways. On the other hand, standard zones include but are not limited to shops, transport facilities, malls, hospitals, schools, apartment buildings, and office buildings.
Firearm Discharge or Possession in a School area
Dealing or possessing a firearm in a school area is a crime according to the Gun-Free School Zone Act Penal Code 626.9. This statute defines a school area as any location within 1,000 feet of a public or private school.
Penal Code 626.9 only punished the possession of firearms directly on school grounds before its amendment in 1994. As a result, you could face severe penalties for violating this law, including a significant jail term independent of the punishment you face for simultaneously violating any other firearm law.
Exceptions To Penal Code 25850
Penal Code 25850 offers exceptions to some individuals, meaning they cannot face carrying a loaded firearm charge under this statute. The exempted individuals include:
- If you are a concealed carry weapons (CCW) license holder
- Legally carrying a firearm for hunting, firing range, or you store the gun in a locked container
- If you are an authorized security guard or money transporter
- If you are an honorably retired peace officer
- If you are an active military personnel
- If you are a peace officer, including firefighters, correction officers, probation officers, federal agents, and police officers
Concealed Carry Statutes
It is a crime for any person to carry a loaded or unloaded firearm openly. However, exceptions are available under the law to carrying a loaded gun. The law permits people with concealed carry weapons (CCW) licenses to carry firearms. An ordinary person with a concealed carry weapon license can carry a gun legally in public. However, the license is restricted to pistols, revolvers, or other firearms a person can hide.
The LA Sheriff's Department has the authority under Penal Code 26150 to issue a concealed carry weapon license. Generally, the department sets the eligibility criteria according to Penal Code 26150 and the department's policies and procedures. By extension, it is upon the department's discretion to decide who is eligible for a concealed carry weapon license.
You can conceal a firearm on your person in a purse, briefcase, bag, pocket, or anything holding that hides the gun. You can only conceal a firearm in a car if it is in the trunk, or a locked compartment, excluding the glove box.
Possessing a concealed carry weapon license also comes with restrictions. For example, having a CCW license does not permit you to do the following:
- Carry illegal firearms — According to Penal Code 16590, it is a crime to carry short-barreled rifles or short-barreled shotguns. Under the law, short-barreled rifles and guns have barrels that do not exceed 18 inches or an overall length that does not exceed 26 inches.
- Carry assault weapons — It is a crime under Penal Code 30600 for any person to carry BGM rifles or assault weapons. Penal Code 30510 highlights assault weapons, including AK47, Norinco 56, poly Technologies AKs and AK47
- Brandishing a firearm violates Penal Code 417 — The law only allows brandishing a gun if you are acting in self-defense
Penalties For Violating Penal Code 25850
You will face penalties under Penal Code 25850, depending on your case's circumstances. The prosecutors often prosecute a simple violation of Penal Code 25850 as a misdemeanor. Some of the penalties you could face include the following:
- A fine that does not exceed $1,000, or
- A jail term of one year in county jail, probation, or both
The prosecutor could charge you with a misdemeanor or felony (wobbler offense) if there are aggravating factors in your charges. The district attorney will decide which charges to pursue after reviewing your charges. Some of the factors the prosecutor will consider before charging include:
- If you have a prior charge for a misdemeanor violation or a drug crime
- If you are the firearm's registered owner
If the prosecutor charges you with a misdemeanor, you could face the following penalties:
- A fine that does not exceed $1,000, or
- A jail term that does not exceed one year in county jail, or both
However, if the prosecutor charges you with a felony, your penalties will escalate to the following:
- A jail term that does not exceed three years in state prison, or
- A fine that does not exceed $1,000, or both
The prosecutor will also charge you with an automatic felony for carrying a loaded firearm if any of the following is true:
- You were lawfully barred from owning or possessing a firearm
- You were a member of a criminal group at the time of the offense
- You possessed the gun illegally
- You have a prior felony or firearm charge
- You stole the firearm
The penalties for an automatic felony include the following:
- A fine that does not exceed $10,000
- A jail term that does not exceed three years in a state prison
The court will also impose a mandatory jail term that does not exceed three months if you carry a loaded firearm and have a previous charge for certain crimes. The offenses could include:
- Shooting at a dwelling house or an inhabited vehicle under Penal Code 246
- Assault with a deadly weapon under Penal Code 254(a)(1)
- Brandishing a weapon under Penal Code 417
Additional Repercussions For Violating Penal Code 25850
If you are guilty of carrying a loaded firearm, you could face adverse effects on your immigration and firearm rights. Typically, a firearm violation is a deportable crime. Upon being convicted of having a loaded gun and being a non-citizen, you could be deported to your mother country and be marked as inadmissible. Being labeled "inadmissible" in the United States means you will never be accepted back. However, it is at the discretion of Immigration and Customs Enforcement (ICE) to determine whether to deport you. They often decide once they evaluate the facts of your charges.
Under Penal Code 29800, the law does not allow you to receive, purchase, or possess a firearm if you are charged with a felony. If you violate Penal Code 29800, you risk additional charges, whose penalty includes a jail term that does not exceed three years in state prison.
Possessing a firearm is not limited to law enforcement officers finding the gun in your hand or on your person. It also constitutes constructive and actual possession. Constructive possession involves consciously controlling a gun, either directly or indirectly, through someone else. On the other hand, you could be in actual firearm possession, provided you intentionally have direct physical control over it.
When you lose your firearm rights, the law allows you to restore your rights by doing the following:
- Seeking the expungement of your charges — Under Penal Code 1203.4, you have the right to request an expungement of your PC 25850 charges from your record. The judges will set aside your charges and seal the records. Doing so relieves you from possible challenges a criminal record presents when you return to the community after the conviction.
- Seeking a reduction of your criminal charge — You can plead "no contest" and have your charges reduced. For example, you can plead "no contest" to a misdemeanor charge to avoid a felony conviction. This will assist you in restoring your gun rights.
Unfortunately, the courts cannot grant your expungement request if you serve a prison sentence. In this case, you can only restore your rights by obtaining a certificate of rehabilitation and a governor's pardon. You need to apply for the certificate through the court, and if the court grants your application, it will issue an order declaring you are rehabilitated. You will then be required to forward the certificate to the governor's office as a pardon application. Your rights will be restored once the governor pardons you.
Defenses To Penal Code 25850 Charges
A firearm conviction results in significant punishment after conviction. With the help of your attorney, you can raise several defenses to contest your charges. The ideal defense strategy depends on the facts of your charges. Some of the defenses you could present include the following:
Illegal Search And Seizure
In some cases, law enforcement could find you with a firearm in your car through an unlawful search. A search is illegal if the law enforcers do not have probable cause or a warrant to search your vehicle. The court could exclude evidence from your charges if it was obtained through an unlawful search. The evidence could be excluded via a Penal Code 1583.5 motion or a motion to suppress. A motion to suppress evidence often leads to dismissal or reduction of your charges. This could happen if the prosecutor fails to provide substantial evidence to proceed to trial.
Legal Exception
You can avoid a conviction by claiming some exceptions to Penal Code 25850. Under the law, a claim of exemption is a valid defense for carrying a loaded firearm in public. You can present the following exceptions based on the facts of your charges:
- You are a member of the U.S military
- You are an FBI agent
- You are an honorary or active retired peace or police officer
- You are a recreational shooter
- You have a concealed carry weapon license
The court could dismiss the charges against you once you provide sufficient evidence.
Lack Of Knowledge
Under Penal Code 25850, the law requires the prosecutor to prove that you knew the firearm you carried was loaded. You will not be guilty if the prosecutor fails to provide the evidence.
You can contest your charges using this defense, mainly if the firearm or the car in which the gun was located belongs to another person. For example, you could take your friend's car to rush to town. While on the road, the police pull you over on suspicion of drunk driving. Upon searching the vehicle, the law enforcers find the firearm below the driver's seat and arrest you for carrying a loaded gun without a license. In this case, you are innocent because the firearm belongs to your friend.
The prosecutor will have difficulty proving that you knew of the firearm's presence and that it was loaded. Your attorney will show the court your lack of knowledge by demonstrating that the car and the gun belong to your friend.
The firearm Was Not Loaded
You can only face the charges under Penal Code 25850 if you carry a loaded firearm. You will not face charges if the gun is not loaded. On the other hand, if you use this defense, you acknowledge that you carried a gun. You could therefore face charges under Penal Code 2630. Penal Code 2630 prohibits individuals from having an unloaded or exposed handgun in public places or vehicles.
Related Offenses
The prosecutor could charge you with the following offenses related to carrying a loaded firearm:
Carrying A Concealed Weapon — Penal Code 25400
The prosecutor could prosecute you under Penal Code 25400 if he/she finds you guilty of carrying a concealed firearm on your person or in your vehicle. According to this statute, you could face charges for the following acts:
- Causing another person to carry a firearm in a vehicle you are a passenger.
- Carrying a handgun concealed in a car within your control or direction
- Carrying a concealed firearm on your person
If the prosecutor accuses you of violating Penal Code 25400, this statute requires that he/she prove the following elements:
- You concealed a firearm in a vehicle or on your person
- You knew of the concealed firearm's presence
- The gun was significantly concealed
You could also face charges under Penal Code 25400 if you carry a concealed firearm without a carry concealed weapon (CCW) license. However, taxicab drivers with concealed weapons in their cars cannot face charges under PC 25400 because the law allows taxicab drivers to keep their guns hidden in their vehicles.
Violating Penal Code 25400 without aggravating factors is often charged as a misdemeanor. The penalties you could face include the following:
- Misdemeanor or summary probation instead of a jail term
- A jail term that does not exceed one year in a county jail
- A fine that does not exceed $1000
Aggravating factors could include:
- Intention to use the concealed weapon
- Your record of violence
- Prior charges
- Failing to cooperate with the police during your arrest
Violating Penal Code 25400 with aggravating factors is often charged as a straight felony or wobbler. The prosecutor could charge you with a straight felony because of the following reasons:
- You possess the firearm illegally
- You committed a crime under PC 29800 when you were arrested for carrying a concealed weapon
- Penal Code 29900 prohibits you from owning a firearm for trying to commit or committing a violent crime, including but not limited to carjacking, rape, robbery, and murder
- You are a member of a criminal gang and an active participant
- You were previously charged with a felony or other firearm crimes
The penalties for straight felonies include:
- Probation time that does not exceed one year instead of a jail term
- A jail term of sixteen months, two or three years in a state prison
- A fine that does not exceed $10,000
The prosecutor could prosecute Penal Code 25400 as a wobbler if:
- You were previously charged with a misdemeanor for an offense against someone else or their property
- You were previously convicted of a dangerous crime or narcotics in addition to a PC 25400 violation
- You are not a registered owner of the loaded firearm in the Department of Justice's database
- You have a loaded gun or ammunition in a place you can easily access
If the prosecutor charges you with a misdemeanor, you could face the following punishment:
- A fine that does not exceed $1000
- A jail term that does not exceed one year in a county jail
If the prosecutor charges you with a felony, you could face the following penalties:
- Probation that does not exceed one year
- A jail term of sixteen, two, or three years in a state prison
- A fine that does not exceed 10,000
Openly Carrying An Unloaded Firearm In Public — Penal Code 26350
It is a crime under PC 26350 to openly carry an unloaded firearm. If the prosecutor accused of violating PC 26350, he/she must prove the following elements:
- You had an unloaded and exposed gun
- You had the gun on your person or in a car
- You had the gun in a public area or on a public street
Violating PC 26350 is often charged as a misdemeanor, which attracts the following penalties:
- A fine of $1,000
- A jail term of one year in a county jail
Find a Santa Ana Criminal Defense Attorney Near Me
Violating gun and weapon laws is a serious crime with adverse penalties. You must consult a competent criminal defense attorney if you face PC 25850 charges. The California Criminal Lawyer Group will help create a convincing defense to fight your charges and negotiate for a reduction of your charges. We excellently understand gun laws and the criminal justice system. Contact us at 714-844-4151 and talk to one of our Santa Ana attorneys.