The Second Amendment rights come with a fair share of challenges. California has laws in place that regulate the entire process of gun ownership. The regulations require mandatory background checks when purchasing guns and also extend to the kind of firearm you can possess. These laws also specify the individuals who are permitted to possess firearms.

California is deemed to have the harshest gun laws in the country. That is why firearm violations result in significant penalties. It is best to familiarize yourself with some regulations, particularly the ones regarding prohibited weapons, to avoid prosecution. However, if you are already facing charges for possessing a prohibited weapon in Santa Ana, contact the California Criminal Lawyer Group for legal assistance.

Prohibited Weapons Under California Law

Penal Code 16590 sets forth a list of weapons considered "generally prohibited" in the state. According to the law, any individual who produces, imports, stocks, presents, displays for sale, lends, offers, or possesses any weapon included in this list can face a misdemeanor or felony charge based on the situation. The weapons are listed below:

  1. Prohibited Knives and Swords

  • Air gauge knives, per PC 20310.
  • Belt-buckle knives, per PC 20410.
  • Cane swords, per PC 20510.
  • Lipstick case knives, per PC 20610.
  • Shobi-Zeus, per PC 20710.
  • Writing pen knives, per PC 20910.
  • Ballistic knives, per PC 21110.

  1. Prohibited Martial Art Weapons

  • Shurikens, per PC 22410

  1. Prohibited Firearms

  • Firearms not immediately recognizable as guns, per PC 24510.
  • Cane, wallet, or zip guns, per Penal Codes 24410 PC, 24710 PC, and 33600.
  • Undetectable guns, per PC 24610.
  • Short-barreled rifles and shotguns — Rifles and shotguns with a barrel length of fewer than 18 inches) per PC 33215.
  • Unconventional pistols, per PC 31500.

  1. Prohibited Ammunition or Equipment

  • Camouflaging gun containers, per PC 24310.
  • Ammunition that includes explosive agents per PC 30210.
  • Multiburst trigger activators, per PC 32900.

  1. Other Prohibited Weapons

  • Metal replica grenades or metal military practice grenades, per PC 19200.
  • Brass knuckles, per PC 21810.
  • Leaded canes, per Penal Code 22210.
  • Slungshot Batons, sandbags, sand clubs, or blackjacks, per PC 22210.

What Prosecutors Must Prove in a Prohibited Weapons Case

A jury will only find you guilty of an offense if the prosecution establishes the following facts as accurate:

  • You manufactured, imported, kept, offered, or exposed for sale, gave, lent, or possessed a weapon on the generally prohibited list under PC 16590.
  • You knew or reasonably should have known that the weapon was on the generally prohibited list.
  • You did not fall within any exception or exemption to the generally prohibited weapons list under California law.

Let us scrutinize each component.

Knowingly

“Knowing" means you knew the weapon was on the generally prohibited list. It also means that you should have known the weapon was restricted based on the circumstances.

"Knowing" is a legal term that refers to the mental state or intent required to establish criminal liability. Prosecutors should demonstrate that you had knowledge of it or should have had knowledge of it based on reasonable grounds. Only then will they have proven that you had "knowledge" of a fact or circumstance under California law,

In a violation of PC 16590, a prosecutor does not need to prove that you intended to use the object as a weapon. Instead, it is enough for the prosecutor to demonstrate that:

  • You knew or
  • Reasonably should have known that the object could be used as a weapon.

Legally, possession of a prohibited weapon can be charged as a crime. Individuals will be prosecuted even if they did not intend to use the device as a weapon. The law focuses on the weapon's characteristics rather than its intended use. It implies that if you have a prohibited item in your possession and were aware or should have been aware that the device could function as a weapon, you could face charges for breaking PC 16590, regardless of your intention to utilize it.

Possession of the Weapon

Possession of a prohibited weapon generally refers to having actual or constructive control over an object on the generally restricted list. This includes any weapon identified explicitly as restricted under the law and any weapon with the same characteristics as those listed under the law.

Actual possession refers to having the weapon on your person or within your immediate control. Examples include having it in your hand or your bag.

Constructive possession pertains to having authority over the weapon, regardless of whether it is in your physical proximity or under your direct control. For instance, if you store a banned weapon in a safe at your residence or in a storage facility that you manage, you could be deemed to have constructive possession.

Note: You could be charged with possessing a prohibited weapon, even if you did not own the device. All that is needed is for you to have control over it.

Exempted Individuals and Weapons

Specific individuals are exempt from prosecution under PC 16590. This means that any weapons in their possession are also exempt. These exemptions include the following:

  • Law enforcement officers — Sworn law enforcement officers authorized to carry weapons as part of their official duties are exempt from prosecution for possessing certain weapons that are otherwise prohibited under PC 16590.
  • Antique firearms — Firearms deemed antiques, as defined under federal law, the Gun Control Act of 1968 (GCA), are exempt from prosecution under PC 16590. Antique guns were generally manufactured before 1899. They do not use conventional ammunition or are no longer in production.
  • Collectors — People who collect weapons and have them on display in their homes or a museum are exempt from prosecution under PC 16590 as long as the objects are not functional and cannot be fired.
  • Movie prop weapons — People who use weapons as movie props or for theatrical performances are exempt from prosecution under PC 16590 as long as the weapons are not functional and cannot be fired.
  • Certain types of knives — Certain types, including those used in hunting or fishing, are exempt from prosecution under PC 16590 as long as they are used for their intended purposes and are not carried as weapons.
  • Weapons possessed by forensic labs — Forensic laboratories are authorized to possess and transport certain weapons to conduct official investigations and testing.

Defenses You Can Raise in a PC 16590 Case

Although possessing prohibited firearms is a serious offense, you can challenge the allegations through any of the following defenses:

  1. The Device in Your Possession Was Not Prohibited

You can assert that the object was not a generally prohibited weapon as a defense if you can prove that the specific weapon in question does not fall under the definition of a prohibited weapon under California law.

For example, tools or instruments commonly used for non-violent purposes, like hammers or screwdrivers, are not designed to be used as weapons. Therefore, they are not prohibited under the law, despite their potential to be used as one.

Other laws and regulations could govern its possession or use even if the object is not a generally prohibited weapon. For example, the ownership of specific knives or firearms is regulated under different sections of the Penal Code, particularly sections 20200 to 20225, or federal law (the National Firearms Act).

  1. Lack of knowledge

Prosecutors should prove that you knew or should have reasonably known that the object in your possession was prohibited. Therefore, it is a defense to assert the lack of knowledge.

You could argue that you did not know the object in your possession was a prohibited weapon. Under this defense, you must show that you lacked knowledge that the device in your possession was a prohibited weapon. The courts require you to submit evidence that you did not know the device was a prohibited weapon.

You could demonstrate a lack of knowledge by showing that you had no reason to believe the object was a prohibited weapon. Alternatively, you could show that you innocently obtained the device without knowing its controlled status.

For example, you could have purchased a cane sword for your grandmother, believing you bought a cane, only to be stopped at the airport and arrested for possessing a prohibited weapon. In this situation, presenting your conversations with the cane seller would be the ideal approach to proving your lack of knowledge.

  1. You are Licensed to Handle Prohibited Weapons

Penal Code 31700 grants the California Department of Justice (DOJ) authority to issue licenses to handle or possess prohibited weapons. This law allows authorities to issue gun licenses for specific purposes. It includes but is not limited to assault weapons, short-barreled rifles or shotguns, machine guns, or silencers/suppressors.

According to PC 31700, the DOJ can issue permits for the sale, transfer, importation, or possession of short-barreled rifles, shotguns, machine guns, or silencers. The license can be obtained from the DOJ under PC 31700. Authorities only issue gun permits for limited purposes, including law enforcement, military use, or use in entertainment productions.

The DOJ has strict criteria for issuing permits for these types of weapons, and applicants must demonstrate a legitimate need for the license. Additionally, individuals who are issued permits to possess prohibited weapons must adhere to strict rules and regulations regarding using and storing these weapons.

The jury will likely find you not guilty of the offense if you present a valid permit.

  1. Unlawful Search and Seizure

Under the Fourth Amendment, law enforcement protects individuals against unreasonable searches and seizures. Courts could suppress any evidence obtained from the unlawful search or seizure if law enforcement violated your Fourth Amendment rights during a search or seizure.

In a PC 16590 case, you can raise an unlawful search and seizure defense if the officers discover the prohibited weapon following an illegal search or seizure. You could assert this defense if law enforcement officers did not have a valid warrant or probable cause to search or seize the prohibited weapon.

You must show that you had a reasonable expectation of privacy when officers searched your premises and found the weapon. Thus, the search and seizure violated that expectation of privacy.

Proving a reasonable expectation of privacy requires showing that you had a subjective expectation of privacy. Further, it requires that this expectation be objectively reasonable. This means that you must have taken steps to keep the searched or seized item private, and society would generally recognize this expectation of privacy as reasonable.

Factors that courts consider to determine whether the defendant had a reasonable expectation of privacy include:

  • The location of the searched or seized item — The level of anticipation of privacy is higher in your domicile or personal possessions than in a communal area.
  • The degree of intrusion — A person could have a stronger expectation of privacy if the search or seizure is invasive or intrusive—for example, a search of their body or personal belongings.
  • The steps taken to protect privacy — An individual has a stronger expectation of privacy if they keep the searched or seized item private, for example, by closing a door or locking a safe.

To get a case dismissed due to a Fourth Amendment breach, defense lawyers could apply the following tactics:

  • Motion to suppress evidence — The most common strategy defense attorneys use is filing a motion to suppress evidence. This motion requests the court to eliminate any evidence police officers acquired from the illegal search or confiscation.
  • A pretrial motion to dismiss —Defense counsel could also present a pretrial request to terminate the case founded on a Fourth Amendment violation. Attorneys use this strategy when there is insufficient evidence to support the charges against the defendant once the unlawfully obtained evidence is excluded. If granted, the case will not proceed to trial.
  • Challenge the search warrant — If law enforcement obtained a search warrant to search the defendant's property, the defense attorney could challenge the warrant's validity. This can be achieved by contending that the warrant was grounded on incorrect or deceptive facts or that law enforcement did not possess reasonable suspicion to obtain the warrant.
  • Challenge the consent to search — If law enforcement obtained the defendant's permission to search their property, the defense attorney could argue that the consent was not voluntary or was obtained through coercion.

These strategies could be used individually or in combination, depending on the case's specific circumstances.

If you succeed in establishing an illegal search and seizure defense, all evidence collected as a consequence of the illicit search or seizure will be barred from the trial as evidence. This could significantly weaken the prosecution's case.

Penalties If Convicted of a PC 16590 Violation

A prohibited weapons charge is a wobbler offense. Prosecutors can pursue prosecution for a misdemeanor or felony violation.

Misdemeanors are punishable by:

  • A maximum of one year in jail and/or
  • Up to $1,000 in fines.

Felonies are punishable by:

  • A maximum of three years in jail and/or
  • Up to $10,000 in fines.

Impact of a Conviction on Gun Rights

The Second Amendment rights of an individual could be affected by a charge of possessing a prohibited weapon, contingent on the specific details and context of the case. Individuals have the right to bear arms. However, it is not absolute. It is subject to certain restrictions, including regulating the possession of certain weapons.

The law prohibits people with felony convictions from owning, possessing, or controlling firearms and ammunition. Penal Code 29800 outlines this prohibition.

Penal Code 29800 is a "wobbler" offense. Prosecutors can pursue felony or misdemeanor charges, depending on the facts of the case and the prosecutor's discretion.

If charged as a misdemeanor, the maximum penalties for a PC 29800 violation are:

  • Up to one year in county jail and/or
  • A fine of up to $1,000.

If charged as a felony, the maximum penalties for the violation are:

  • Up to three years in prison and/or
  • A fine of up to $10,000.

Expunging a PC 16590 Violation

It is possible to have a PC 16590 conviction expunged or dismissed from your criminal record, provided you meet specific requirements.

You must have the following to be eligible for expungement:

  • Completed probation.
  • Paid all fines and restitution, and
  • Not currently facing any criminal charges.

In addition, you must not have been sentenced to prison for the offense. Expungement is not available for felony convictions that resulted in a state prison sentence.

If you meet these eligibility requirements, you could petition the court to have your PC 16590 conviction expunged or dismissed. If the judge grants the petition, the sentence will be set aside and the charges dismissed.

Note: Expungement does not entirely erase the conviction from your criminal record. The sentence will still be visible to certain government agencies. It could be considered in certain circumstances, like when applying for specific professional licenses or jobs.

Crimes Related to Prohibited Weapons Offenses

  1. Brandishing a Weapon, PC 417

Brandishing a weapon, also known as "assault with a deadly weapon," is a criminal offense punishable under PC 417. It is exhibiting a firearm, a deadly weapon, or any other object threateningly to intimidate or scare another person.

To prove the crime of brandishing a weapon under PC 417, the prosecution must establish the following elements beyond a reasonable doubt:

  • You drew or exhibited a deadly weapon or firearm in the presence of someone else.
  • You did so in a manner that was threatening or a way that could reasonably be interpreted as a threat, and
  • You intended to use the weapon to intimidate or scare the other person.

A deadly weapon can include any object capable of causing grave bodily injury or death. Examples include knives, baseball bats, or any other device that an individual can use as a weapon. The weapon does not need to be loaded or even operable to be considered a deadly weapon for the purposes of PC 417.

The penalties for brandishing a weapon can vary depending on the circumstances of the offense. These circumstances include:

  • Whether the weapon was a firearm and
  • Whether anyone was injured.

If convicted of brandishing a weapon under PC 417, you could face the following penalties:

  • Up to one year in county jail and/or
  • A fine of up to $1,000.

If a firearm was involved, the penalties could be more severe. They could include up to three years in state prison.

  1. Carrying a Loaded Firearm in Public, PC 25850

PC 25850 makes it a crime to carry a loaded gun in a public place or a vehicle on a public street or highway.

Carrying a loaded firearm in a public place without a valid license or permit is a crime. It does not matter whether the gun was concealed or openly visible. A public place is any area accessible to the public or where people are likely to be found. These include streets, parks, and shopping centers.

If convicted of carrying a loaded firearm in public without a license or permit under PC 25850, you could face severe penalties. These include:

  • Up to three years in county jail and/or
  • A fine of up to $1,000.

  1. Carrying an Unloaded Firearm in Public, PC 26350

PC 26350 makes it illegal to carry an unloaded handgun in a public place or on a public street or road.

A person could face prosecution under PC 26350 for carrying an unloaded handgun in a public place. It does not matter whether the gun is carried openly or concealed.

You could face severe penalties if convicted of carrying an unloaded firearm in public under PC 26350. These include:

  • Up to six months in county jail and/or
  • A fine of up to $1,000.

Contact an Experienced Criminal Defense Attorney Near Me

Are you or a loved one facing a PC 16590 violation in Santa Ana?

Contact the California Criminal Lawyer Group for assistance. Our team is ready to offer legal services. We will develop the right defense strategy to secure the best legal outcome. Contact us today at 714-844-4151, and let us help you fight for your rights.