Carrying A Concealed Firearm

Penal Code 25400 criminalizes carrying a concealed weapon in your direct possession or vehicle. The offense is a wobbler charged as a misdemeanor or felony, depending on the facts of a case. Because of the dangers posed by persons carrying concealed weapons without a license, the court is often keen to prosecute to the fullest extent of the law. If you face charges under PC 25400 in Santa Ana, CA, we invite you to contact Darwish Law. Let us go through the prosecution's evidence, find out how it was obtained and devise a strong defense strategy to ensure the best outcome.

The Second Amendment of the U.S. Constitution gives citizens the right to keep and bear arms necessary to their security. While Penal Code 25400 seems to infringe this right, an attempt to challenge the statute failed. In June of 2016, a federal court ruling in Peruta reaffirmed that the law is constitutional and it remains effective in California. If you carry a concealed weapon, you must apply for a license and show "good cause" for needing the gun.

Carrying a Concealed Firearm (Penal Code 25400) Defined

Under Penal Code 25400, carrying a concealed firearm without a license is illegal. The offense involves carrying a revolver, pistol, or any lethal weapon you can hide in your direct possession. The statute prohibits the following:

  • Carrying a concealed firearm in your immediate possession, like in your waistband or ankle holster

  • Carrying a concealed firearm in a vehicle under your control or direction

  • Causing the illegal concealed carrying of a gun in a car where you are an occupant

There are crimes closely related to PC 25400, although it is imperative to note that these are separate offenses. For instance, Penal Code 26350 makes it a crime to openly carry an unloaded firearm within a public setting. On the other hand, Penal Code 25850 criminalizes carrying a loaded gun. The prosecution will always consider the facts of your case before deciding the most befitting charges to impose.

Penal Code 25400 is complex, making it best to consult with a skilled criminal attorney before you even consider owning a gun. For instance, the law allows certain people to carry concealed firearms without breaking the law. However, they must abide by specified conditions to avoid prosecution under PC 25400.

The persons exempt from the statute include:

  • Peace officers on active duty or honorably retired

  • U.S. military members

  • Licensed firearms dealers

  • Licensed hunters and members of target shooting organizations

  • Bank guards

Penal Code 25400 Elements

The prosecution must establish three vital elements beyond a reasonable doubt to convict you of carrying a concealed firearm. These elements include:

  • You had a concealed handgun in your direct possession or a vehicle in your control

  • You knew about the concealed gun's presence

  • The firearm was reasonably concealed

Let us look at the legal definitions of some of the terms and phrases used to describe PC 25400:

Concealed Firearm

A firearm can be any lethal weapon like a handgun, pistol, shotgun, or revolver that you can conceal in your direct possession. Any device usable as a weapon that expels a projectile by the force of combustion or explosion also falls under the category of a firearm. This is as long as the barrel is less than 16 inches.

PC 25400 makes it illegal to carry these weapons in a concealed fashion. To "conceal" means to hide from plain view.

If you carry a firearm in plain view, the prosecution can impose charges under Penal Code 26350. If the weapon is partially concealed but still visible, you will face charges under Penal Code 25400.9.

In Your Direct Possession

A concealed gun carried "on the person" or in their direct possession means that the weapon was in their garment or something they are holding. You can face charges if the firearm is in your pocket, holster, bag, purse, etc.

You "Knew About the Gun's Presence"

The prosecution can prove intent by establishing that you "knew" about the presence of the gun in your possession. You could have concealed it in your car or asked someone to do so. The court could not convict you under PC 25400 if you did not know of the presence of a firearm because someone else put it in your vehicle.

Penal Code 25400 Penalties

Carrying a concealed firearm is a wobbler offense often charged as a misdemeanor unless aggravating factors exist. Some factors that favor felony instead of misdemeanor charges include a history of violence, a prior conviction, refusal to cooperate with the police during the arrest, or a motive to use the concealed weapon. The prosecution will also charge you with a "straight" felony if:

  • The firearm was stolen.

  • You are not licensed to carry.

  • You are prohibited from possessing a gun because of a prior felony conviction.

  • You are affiliated with a criminal street gang.

A misdemeanor conviction attracts the following penalties:

  • Summary probation, or

  • Imprisonment for up to 1 year in county jail

  • A fine not exceeding $1,000

When a PC 25400 violation is a felony, the punishment will include:

  • A jail sentence for 16 months, 2 or 3 years

  • A $10,000 maximum fine

Best Defenses to Fight PC 25400 Charges

California has complex firearm laws that frequently change. It is easy to face gun crime charges even when you have no intention of breaking the law. Unfortunately, ignorance of the law is not a valid defense. It is crucial to hire a competent attorney to help you understand the charges you face and the best way to fight them and achieve a favorable outcome.

Some of the best defenses against PC 25400 charges include:

Concealed Gun Permit

If you have a Carry Concealed Weapon (CCW) permit, producing it in court is the surest way to have the charges dropped. The license will only bear the intended fruit if it was issued in California. You can apply for a CCW through the police department or county sheriff's office.

For your application to be successful, you must satisfy the following:

  • Show "good cause" that justifies the permit

  • Show good moral character

  • Provide a gun safety course certificate

  • Provide proof of being a resident or a business person within the county or city

Lack of Knowledge about the Concealed Firearm

One of the critical elements the prosecution must prove beyond a reasonable doubt is that you knew about the presence of the concealed gun. Therefore, you cannot be convicted for a PC 25400 violation if someone else placed a gun in your car without your knowledge.

A competent attorney can help prove that someone else placed the gun in your car. Claiming the "lack of knowledge" will not work if you put the weapon in your vehicle, purse, or bag, forgot about it, and then carried it without realizing it. "I genuinely forgot the gun in my purse" is not a valid defense to fight PC 25400 charges.

The Firearm Was Within Your Home or Business

If you have a valid license to possess a gun, the law allows you to have the concealed firearm in your home or business place.

You cannot legally carry a concealed weapon into a business where you work as an employee. You must be the owner or a co-owner of the business to be exempt from PC 25400. Taxi drivers are also exempt from the statute if they keep their weapons concealed in their work vehicles.

You Had the Gun in a Locked Container in Your Car

It is legal to carry your firearm in your car if you have a firearm license and the gun remains safely in the trunk or a locked container (except for the glove compartment). If your attorney can prove that you only carried the concealed firearm in a manner the law allows, the judge will likely drop the case.

Fourth Amendment Violation

The Fourth Amendment of the U.S. Constitution protects you from unreasonable searches and seizures. For instance, the police have no right to pull you over without probable cause and ask to see what is in your glove compartment.

If you were not pulled over for other legal concerns like a broken light, overspeeding or reckless driving, a skilled criminal defense attorney could argue that the police violated your constitutional rights. Also, evidence obtained from patting you down or searching your car without a warrant or probable cause cannot be used in court.

Police Misconduct

A reliable lawyer will always search for reasons to file motions to dismiss illicitly obtained evidence. The move weakens the prosecution's case and can quickly force the judge to drop the case. Another possible outcome is that the prosecutor will be more willing to offer you a favorable plea bargain.

Your attorney can file a Pitchess motion if the police engaged in any of the following misconduct:

  • Providing inaccurate or falsified information in the police report

  • Planting evidence

  • Giving a false testimony against you to strengthen the case

  • Violating your civil rights during the arrest or interrogations

  • Coercing your confession during interrogations

The court tends to rely heavily on physical and verbal evidence from the police. Filing a Pitchess motion will trigger an inquiry into an officer's conduct. If the officer has faced misconduct complaints in the past, the judge will likely drop the case, or the jury will pass a not guilty verdict.

You Only Carried the Concealed Weapon in Self-Defense

Self-defense or the defense of another person provides a legally justifiable reason to break the law. If you had reasonable belief that your life was in grave danger because someone threatened you, for instance, proving that this much is true can get your charges dismissed.

Related Offenses

Gun laws are expansive. The prosecution will investigate the facts of your case and charge you under PC 25400 or other similar offenses. Other crimes related to carrying a concealed firearm include:

Open Carry of Unloaded Firearm — Penal Code 26350

Under Penal Code 26350, it is unlawful to openly carry an exposed and unloaded firearm into your car or a public place. The offense is a misdemeanor, and the prosecution must prove the following elements beyond a reasonable doubt before convicting you:

  • You carried an unconcealed and unloaded firearm

  • The gun was in your direct possession or your car

  • You had the weapon while in a public area

A competent criminal defense attorney can devise clever legal strategies to contest Penal Code 26350 charges. One of the best defenses is that you were not in a public place and owned the property where the police arrested you. The court will also likely dismiss the case if you are exempt from the law because you are a licensed hunter or a target shooting organization member.

A conviction under PC 26350 is punishable by:

  • A county jail sentence for up to 1 year

  • A fine not exceeding $1,000

Carrying a Loaded Firearm — Penal Code 25850

Penal Code 25850 prohibits carrying a loaded firearm into a public street, public place, or a vehicle if you do not have a valid CCW license. A simple violation is a misdemeanor, and the prosecution must prove three crucial elements to convict you.

These elements include:

  • You carried a loaded firearm in your direct possession or your car

  • You knew about the presence of the gun

  • You were in a public street or public place where the law prohibits discharging a firearm

The legal definition of a "public place" is a location open to general use by the public. On the other hand, the term "loaded" firearm means that your gun had at least one shell or cartridge in the firing chamber, magazine, or clip attached to the weapon. It is also important to note that even though the prosecution must prove that you knew about the presence of the gun, it is not necessary to prove you knew that the weapon was loaded.

Carrying a loaded firearm is generally a misdemeanor, although it can be a wobbler or a straight felony if aggravating factors exist.

A misdemeanor conviction attracts the following penalty:

  • Imprisonment for up to 1 year in county jail

  • A $1,000 maximum fine

Carrying a loaded firearm in a public place becomes a wobbler if the accused is not a registered gun owner or has a prior misdemeanor or drug crime conviction. The penalty for a felony conviction includes:

  • Incarceration for up to 3 years in county jail

  • A fine not exceeding $1,000

If charged with a straight felony, the minimum sentence will involve spending at least three months behind bars. You can face "straight" felony charges if:

  • You have a past felony or gun crime conviction

  • You possessed a stolen firearm

  • You are unlicensed to carry

  • You have affiliations with a criminal street gang

  • You are a felon with a firearm or have lost your gun rights for some reason

Straight felony charges are punishable by:

  • 3-year sentence in county jail

  • A fine of $10,000 maximum

Felon in Possession of a Firearm — Penal Code 29800(a)(1)

Penal Code 29800(a)(1) is commonly referred to as a felon in possession of a firearm or felon with a gun. The statute makes it a crime for convicted felons, narcotic addicts, people convicted of violent crimes, or those with active felony warrants from buying, owning, or possessing guns.

Violating Penal Code 29800(a)(1) is a felony, and the prosecution must prove the following elements beyond a reasonable doubt:

  • You fall into at least one of the categories of people prohibited from possessing a firearm

  • You bought, received, had, or owned a gun

  • You knew about the presence of the firearm in your actual, constructive or joint possession

Fighting Penal Code 29800(a)(1) is challenging, making it imperative to have a skilled criminal defense attorney in your corner. One of the best defenses is to present a justifiable reason why you bought, received, possessed, or owned the gun. The judge can drop your charges if you can prove that:

  • You wanted to dispose of the gun

  • You snatched the firearm from someone in self-defense

  • You only possessed the firearm momentarily and only for the duration necessary to drop it at the police station

  • If you were delivering the gun to the police, you gave them prior notice of your intentions

A Penal Code 29800(a)(1) violation is always a felony. If convicted, you will face the following penalties:

  • Incarceration in county jail for a maximum of 3 years

  • A $10,000 maximum fine

Find a Criminal Defense Attorney Near Me

If you are facing charges for carrying a concealed firearm in Santa Ana, CA, you should seek the counsel of a knowledgeable criminal defense attorney immediately. At Darwish Law, we understand firearm laws in detail and can dispense in-depth information about the nature of your charges and the severity of the penalties involved if convicted. Most importantly, we can help you devise a strong defense strategy to ensure you have the best chance of an acquittal, reduced charges, or a reduced sentence. If you need more information about firearm laws or want to schedule your free consultation, call us at 714-887-4810.