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Carrying a Loaded Firearm

Carrying a loaded firearm on your person or in a vehicle is unlawful in California under Penal Code section 25850. This law applies to carrying the firearm in any public place where it is unlawful to discharge a fireman. If you are charged with this crime or any other gun or weapon charge, it is important to consult with a gun charge defense attorney right away.

“Carrying” mean carried on the person’s body or otherwise carried by the person.  Thus, this law is violated not only when the person has the firearm in hand, in a pocket or waistband, for example, but also in a purse, backpack, briefcase, or suitcase, or other carrying apparatus.

A firearm is any device that is designed to propel a bullet or other projectile through a barrel by force of explosion or other igniting energy. This includes firearms and rockets or rocket-propelled devices, such as grenades and Tasers. Note that BB and pellet guns do not eject ammunition by force of explosion or ignition and therefore carrying a BB gun or pellet gun is not a violation of section 25850.

A firearm is loaded if there is unexpended ammunition in the cartridge or firing chamber or in a magazine or clip attached to the firearm.  The firearm does not need to be in working order – even if the firearm is not operational, it is still a violation of this law if the firearm is designed to shoot and appears capable of doing so.

A public place is any place that is open and accessible to the public. Whether a place is public depends upon the “totality of the circumstances;” even privately-owned property can be a public place. The courts have held that the key to determining whether a place is public is whether “a member of the public can access the place ‘without challenge.’” (People v. Strider (2009) 177 Cal. App. 4th 1393, 1401.) “Without challenge” might mean it is fenced or otherwise hinders a random person from entering. However, “without challenge” would not include public venues that have some barrier to entry if the public can enter by purchasing a ticket or otherwise gain entry by fulfilling a requirement to entry.

In public places where it lawful to carry a loaded firearm, such as on a firing range or while legally hunting, the statute is not violated. Law enforcement, security personnel, military personnel, and others authorized by Penal Code section 26000 et seq. are also exempt.

To be found guilty of this offense, the offender must have knowledge of the firearm. However, knowledge of the firearm but not knowing that the firearm was loaded is not a defense.

Examples
  1. While hiking in wilderness area accessible to the public, Bruce asks Dan to hold his backpack while he goes in search of a waterfall. While Bruce is waiting, a ranger approaches. The ranger, suspecting that Dan may be a suspect in a kidnapping searches Bruce’s backpack, which Dan is holding. In it, the ranger finds a loaded gun. Dan had no idea that Bruce was carrying a loaded gun. Dan had no knowledge of the gun and is therefore not guilty of the offense.
  2. Same scenario except Dan knows about Bruce’s gun but Bruce told him it was not loaded. Dan violated Penal Code section 25850 because he knew the gun was in Bruce’s backpack, even though he thought it was unloaded. His knowledge of the weapon, loaded or not, satisfies this element of the crime.
  3. Same scenario except this time, the confiscated gun is taken to the police department where it is tested and booked into evidence. It turns out the gun was non-functional; even though it was loaded, it would not eject a bullet. Whether the gun is in working order or not does not affect the offense. Carrying a loaded, but non-functional firearm, is still a violation of this law.
Penalties

Violation of this statute is a misdemeanor punishable by up to one year and jail and a $1000 fine.  However, this code section lists several aggravating factors that can significantly increase the penalty.

Violation of Penal Code section 25400 is a felony, punishable by up to the 3 years in jail and a $10,000 fine, if:

  • the defendant has a prior felony or weapons conviction,
  • the firearm is stolen,
  • the defendant is an active participant in a criminal street gang,
  • the defendant is in unlawful possession of the firearm, and/or
  • the defendant is within a class of persons prohibited from possessing a firearm.

Violation of Penal Code section 25850 is a wobbler if the defendant has a previous conviction of an offense against a person or property or certain drug violations. A wobbler is an offense that can be charged as a misdemeanor or a felony. If charged as a felony, the offense can result in a sentence of up to three years.

Defenses:
  • You did not have knowledge of the firearm.
  • You were in a public place that did not prohibit the discharge of firearms.
  • You are in a class of persons exempted from this law.
  • You were not in a public place.

As to enhanced sentencing, defenses may include:

  • You did not know the firearm was stolen.
  • You are not an active participant in a criminal street gang.

There can be many other defenses to the crime. An experienced gun charge defense attorney will be able to review your case and identify the defenses available to you.

ORANGE COUNTY GUN LAW DEFENSE ATTORNEY WILLIAM WEINBERG CAN HELP!

Prosecutors often charge a crime at the most severe level available. As an example, a person found with a loaded firearm in a public place who had a long-ago drug conviction might be charged with a felony. An experienced attorney is almost always able to negotiate down what is an overcharged firearm offense to a lesser offense. Or perhaps a defendant maintains his or her innocence, as for example, they did not know about the firearm. If that defendant chooses to go to trial, a skilled gun charge defense attorney can convince the trier of fact (judge or jury) that the defendant is truly innocent of the charge.

Whatever the facts of your case, if you have been charged with carrying a loaded firearm or any other crime, William Weinberg can offer an assessment of your options. He is available for a free consultation where he will review and discuss the details of your case and offer his honest opinion of your defense. You may contact him at his Irvine office by calling (949) 474-8008 or by emailing him at bill@williamweinberg.com.

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