California firearm laws are among the strictest in the country. Whereas these laws and regulations were established to protect citizens from violent conduct, the practical outcome is that several well-meaning or innocent people are pronounced guilty of various firearm offenses, including carrying a loaded gun in public.
If you have been accused of publicly carrying a loaded gun or any other gun offense, you should hire an experienced defense lawyer as soon as possible to help you fight the charges. The consequences of breaking gun laws are harsher, and the earlier your attorney can start working on your case, the higher the chances of preventing a conviction.
The expert and knowledgeable lawyers we have at Darwish Law will do everything legally possible to obtain the best possible outcome for you. We will develop a solid defense strategy that may convince the judge to dismiss or lower your charges. Call us for help if you have been charged in Santa Ana, and we will start working on your case immediately.
An Overview of Carrying a Loaded Firearm Offense
Many restrictions on firearm ownership apply to the place, time, and ways in which guns may be legally possessed or owned. One of these limitations is outlined under California PC 25850, which illegalizes carrying or possessing a loaded gun in public. The prosecution must demonstrate the following facts for the judge to convict you under PC 25850:
- You carried a loaded gun in your vehicle or on your person.
- You knew you were carrying a gun.
- At the time, you were on a public street or in a public area in an unincorporated area or an incorporated city where it is illegal to fire a gun.
This penal code defines a firearm as a gadget utilized as a weapon from which a projectile is discharged/expelled via a barrel by an explosion/combustion force. A taser is considered a gun under this law, while a BB or pellet gun is not. Other examples of guns are shotguns, rifles, revolvers, and pistols.
A gun is deemed loaded when there is an anticipated shell/cartridge in the discharge chamber or a shell/cartridge in a clip or magazine affixed to the gun. And a public area is any area open to general and common use that anybody wishing to visit can readily access.
Note that you need to have known you had the firearm on you or in your vehicle for you to be pronounced guilty of violating PC 25850. However, you need not have known that your firearm was loaded for the judge to convict you.
Consider this example: Sheila is driving to work and does not know that her husband put her loaded firearm in the car trunk. In this case, the judge should not convict Sheila under Penal Code 25850 because she did not know the weapon was in the trunk.
In another example: suppose Sheila is driving to work. She knows her husband placed her gun in the car trunk but believes it is not loaded. A police officer pulls Sheila over, and after checking the firearm, they find it is loaded. In this case, the judge can convict Sheila under 25850 PC, even though she was unaware the gun was loaded.
The Penalties for Violating PC 25850
A simple PC 25850 violation is considered a misdemeanor offense. The consequences include up to one thousand dollars in fines and jail time for a period not exceeding one year. However, note that various aggravating circumstances can lead to a violation of PC 25850 being charged as a straight felony or wobbler. Additionally, you will be required to serve at least three months of jail term if you have certain past convictions.
Violating PC 25850 is considered a wobbler offense if you are not the gun’s registered owner or have previously been found guilty of a specific misdemeanor or drug crime. A wobbler crime is one that the district attorney can prosecute as a felony or misdemeanor. A misdemeanor violation carries the same penalties as the ones stated above. A felony conviction carries up to a thousand dollars in fines and imprisonment for a period not exceeding three years.
You will face straight felony charges for violating PC 25850 if either:
- You were lawfully forbidden from having possession or ownership of the firearm.
- The gun was not legally possessed.
- You were a criminal street gang member.
- The gun in question was stolen.
- You had a past firearm or felony conviction.
A conviction for a straight felony will subject you to up to ten thousand dollars in fines and jail time for a maximum of three years.
Three-Month Mandatory Minimum
If you violated PC 25850 and have already been found guilty of particular crimes, you must serve at least three months of a jail sentence. These crimes include:
- PC 417, brandishing a weapon.
- PC 246 shooting at an occupied vehicle or inhabited dwelling.
- PC 245(a)(1), assault with a deadly weapon.
The state’s statute refers to this minimum of three months as a "three-month mandatory minimum."
Immigration Consequences for PC 25850 Violation
A conviction for violating PC 25850 may have adverse immigration ramifications. The U.S. immigration law provides that certain criminal convictions may result in an immigrant being deported or labeled inadmissible. Firearm offenses are among the several violations categorized as deportable crimes. Based on the case facts, a conviction for PC 25850 violation can sometimes result in deportation, inadmissibility, or other immigration repercussions.
How a Conviction Affects Firearm Rights
Being convicted of violating PC 25850 may negatively affect your gun rights. Per California statute, a convicted felon is prohibited from possessing, owning, or purchasing a gun. If the specific facts surrounding the case lead to the prosecution charging you with a felony PC 25850 violation and the judge finds you guilty, you will lose your rights to possess or own a gun.
Defending Against PC 25850 Violation
You can raise several legal defenses with your lawyer’s help to challenge the accusations of violating Penal Code 25850. Common defenses include:
You Are Exempt From Prosecution Under PC 25850
Particular people are exempt from criminal responsibility under this law, meaning carrying a loaded gun in public is lawful. These persons include:
- Persons with a concealed carry permit— if you are licensed to carry a concealed weapon, you cannot be prosecuted for violating PC 25850.
- Recreational shooters
- Members of the U.S military— per PC 26000, military members on duty cannot be charged for violating PC 25850.
- Agents of federal law enforcement agencies, for instance, the FBI
- California peace/police officers— per PC 25900, California peace/police officers, either honorably retired or active, are exempt from prosecution under PC 25850.
- Private investigators and security guards— per PC 26030 and 26015, private investigators and security guards are allowed to carry a loaded firearm in public, provided specific conditions are satisfied. They, therefore, cannot face prosecution under PC 25850.
- Legitimate hunters— per PC 26005, you can carry a loaded gun while hunting at permissible locations. Although, you must carry your firearm to and from these premises in a locked container.
- POST certification— per PC 26035, you cannot be charged with publicly carrying a loaded gun if you are a zookeeper, harbor patrol officer, or animal control officer and have completed a regular course in gun training approved by the POST (Commission on Peace Officer Standards of Training).
The Gun Was Not Loaded
You are only guilty of a PC 25850 violation if the firearm was indeed loaded. Thus, you can always argue that, whereas you had been carrying a gun, it was not loaded. This argument can lead to the judge dismissing your charges. However, you could be convicted under PC 26350 for carrying an unloaded gun in public. The judge could also dismiss your case if you were not carrying the firearm in a public street or place. Therefore, you should not be guilty if the police find you carrying a firearm in your workplace or home.
You Did Not Know You Were Carrying a Gun
It could be that you did not realize you were carrying a loaded gun, and PC 25850 says that you can only be guilty if you knew you had been carrying the loaded firearm either in your vehicle or on your person. For example, suppose you went to the airport to catch a flight, and a loaded gun is found once your bag passes through the metal detector. It emerges that your spouse had placed it there for your safety. In this case, you can assert that you were unaware of the gun’s presence. You can argue for dismissal of the charges against you based on the fact that you lacked the mental state or men's rea to commit the crime.
Illegal Search and Seizure
Most weapon offenses, including 25850 PC violation charges, arise once a police officer pulls a suspect over for some kind of investigation. You could have been driving past the stipulated speed limit or had parked your car illegally. Or perhaps you looked like somebody who had just been accused of an offense. As the police officer is talking to you, they discover the loaded firearm.
The fourth amendment to the U.S constitution protects you against any unreasonable search and seizure. If a law enforcement officer searches your vehicle or person without probable cause and a valid search warrant, they will violate your 4th amendment rights.
Considering these facts, the police officer probably would not have the power to search you or your vehicle because before they can lawfully conduct that search, they should have:
- A valid search warrant permitting them to inspect your person or vehicle (whose scope should strictly be adhered to).
- Probable cause to search (that is, a reason to believe you are involved in criminal conduct or are a threat to the officer's safety).
- Your permission to search your vehicle.
A firearm found and seized during an unlawful search and seizure cannot be admissible in court. If your lawyer can persuade the prosecution and judge that the police discovered your gun during an unreasonable or illegal search and seizure, the judge will likely lower or dismiss the charges against you.
You Had the Firearm for Self-Defense or Defense of Someone Else
There is an exception to carrying a loaded gun in public if you are in danger and reasonably believe you require the firearm to protect yourself. Per PC 26045, you may carry a firearm if you either:
- Have reason to believe you, your property, or someone else is in imminent danger, and you must carry the loaded gun in public for your protection.
- You have a protective order against another person and have reason to believe you are in grave danger.
Should a police officer do any of these, they will be committing police misconduct:
- Planting a loaded gun in your vehicle or on your person.
- Lie in their police report by saying that the firearm was loaded when in the real sense, it was not.
- Testify falsely regarding the case facts.
- Coerce your confession.
- Violate your civil rights in any other way.
If your lawyer suspects police misconduct, they will likely bring a Pitchess motion. The motion will enable them to discover whether other defendants have previously made the same complaints about the police officer. If your lawyer can prove you are a victim of police misconduct, the judge or prosecution might dismiss your case. Or the jury may eventually find you not guilty at the court trial.
Expunging a Conviction Record for PC 25850 Violation
If convicted of carrying a loaded gun in public, you are eligible for criminal record expungement if you successfully serve probation or a jail sentence, whichever applies. If you violate a probation condition, you could still have your criminal record expunged, although it would be at the judge’s discretion. According to PC 1203.4, a record expungement releases you from almost all disabilities and penalties resulting from the conviction.
Crimes Related to PC 25850 Violation
Several offenses are related to the PC 25850 violation. By being related, it means they share some of the elements. This means the prosecution can charge you with any of these crimes alongside or instead of a PC 25850 violation. Or, if the prosecution's case against carrying a loaded gun is weak, they can agree to a plea deal and have you plead guilty to any related crimes that carry lenient penalties. Offenses related to carrying a loaded firearm are:
PC 26350, Openly Carrying an Unloaded Gun In Public
PC 26350 is the state’s law that illegalizes openly carrying an unloaded gun and doing so in public. Remember that this law effectively repealed what was previously California's "open carry" law. If convicted, you will face a maximum of one thousand dollars in fines and a jail sentence for a period not exceeding a year. Note that you can be subject to a fine and jail term if you carry unexpended, dischargeable ammunition for which you are not the legal owner. Additionally, the above consequences are for every unloaded firearm you are carrying.
PC 25400, Carrying a Concealed Weapon
PC 25400 is the state’s law prohibiting carrying a concealed gun in a vehicle or on your person. Carrying a concealed firearm is an offense regardless of whether the gun is unloaded or loaded. In the absence of aggravating factors, prosecutors charge PC 25400 as a misdemeanor. The consequences upon a conviction include up to one thousand dollars in fines and a jail term for a period not exceeding one year. Alternatively, the judge may grant you misdemeanor probation instead of jail time. However, when aggravating factors exist in your case, a PC 25400 violation is prosecuted as either a wobbler crime or a straight felony, just like a PC 25850 violation.
PC 26500, The Unlicensed Sale of Guns
PC 26500 is the state’s statute that makes it an offense to transfer, lease, or sell guns and do so without a permit. It is a separate offense under this statute for every firearm that you sell, lease, or transfer without a legally-obtained permit. Violating PC 26500 is considered a misdemeanor. You will be subject to a maximum fine of one thousand dollars and a jail sentence for a period not exceeding six months if found guilty. These penalties are for every gun you sell when you do not have a legally-obtained permit.
Find an Experienced Criminal Defense Lawyer Near Me
At Darwish Law, we endeavor to protect the freedom and rights of each of our clients. This means thoroughly scrutinizing all available proof and mounting effective defense strategies against their criminal charges. Our firearms offense defense attorneys are knowledgeable and have several years of experience defending people charged with gun offenses in Santa Ana and beyond. Call us at 714-887-4810 for a comprehensive, cost-free, and confidential consultation about your case.