Weapons Offenses

While most of this section will deal with firearms, many cases are brought in California for people carrying all varieties of “deadly weapons." California has strict laws on what type of firearms can be owned, who can own them, and where and how they can be carried. Even more seriously, California has extremely harsh sentencing enhancements, adding years of prison time for possessing, using, and/or firing a gun, while committing other crimes.

Possessing and Carrying a Firearm

Under California law, anyone over 18 years of age can purchase and own a firearm without a license, except for people who have been convicted of a felony or certain misdemeanor offenses and people who are addicted to narcotics or mentally ill. However, unless you are a police officer or some other exempted professional and/or you have a concealed weapons permit, your firearm must be left at home. As of January 1, 2012, it is a misdemeanor to openly carry a firearm in California. Penalties increase if the firearm is concealed, if the firearm is loaded, and if the firearm is not legally possessed.

Penal Code section 26350 – Openly Carrying a Handgun

Under Penal Code section 26350, openly carrying an unloaded handgun, whether on your person or in your vehicle, is a misdemeanor, carrying up to 6 months in jail. The law only applies to public streets and public places in cities and in prohibited areas of unincorporated areas, so there are some remaining places in the state where the law does not apply. There law provides exemptions for peace officers and other special classes of people. If the gun happens to be stolen and the person is also carrying ammunition, the maximum penalty becomes one year in jail and a $1000 fine.

Penal Code section 25400 – Carrying a Concealed Weapon

Under Penal Code section 25400, it is a crime to carry a handgun, concealed upon a person or inside a vehicle. An exception applies where an unloaded weapon is carried in the trunk of a car or another locked compartment within a vehicle. Penal Code section 25400 punishes carrying a concealed weapon with varying severity, depending on the circumstances of the gun’s ownership, whether there is ammunition present, and whether the defendant has a prior criminal history.

A simple violation of Penal Code section 25400 is punishable as a misdemeanor, carrying up to one year in the county jail and a $1000 fine. However, if any aggravating factors are present, the penalties become more severe. For instance, it is treated as a felony, carrying up to three years in prison, if any of the following circumstances are present:

  1. The firearm is stolen AND the defendant knew or had reason to believe it was stolen.

  2. The defendant is an active participant in a street gang.

  3. The defendant has previously been convicted of a felony or certain misdemeanors.

  4. The defendant was not in lawful possession of the firearm.

It can be charged as either a felony or a misdemeanor if any of the following circumstances are present:

  1. The defendant has previously been convicted of a crime involving drugs, violence, or property damage.

  2. The defendant was not the registered owner of the firearm and ammunition for the firearm was also present.

Penal Code section 25850 - Carrying a Loaded Weapon

Penal Code section 25850 makes it a crime to carry a loaded firearm in a vehicle or public place. Exceptions apply for people with a permit to carry a concealed weapon and for certain professions, such as law enforcement, military, etc. Penal Code section 25850 punishes carrying a loaded weapon with varying severity, depending on the circumstances of the gun’s ownership and the defendant’s criminal history.

A simple violation of Penal Code section 25850 is punishable as a misdemeanor, carrying up to one year in the county jail and a $1000 fine. However, if any aggravating factors are present, the penalties become more severe. For instance, it is treated as a felony, carrying up to three years in prison, if any of the following circumstances are present:

  1. The firearm is stolen AND the defendant knew or had reason to believe it was stolen.

  2. The defendant is an active participant in a street gang.

  3. The defendant has previously been convicted of a felony or certain misdemeanors.

  4. The defendant was not in lawful possession of the firearm.

It can be charged as either a felony or a misdemeanor if any of the following circumstances are present:

  1. The defendant has previously been convicted of a crime involving drugs, violence, or property damage.

  2. The defendant was not the registered owner of the firearm.

Possession of a Deadly Weapon

The Penal Code makes it a crime, which can be charged as either a felony or a misdemeanor, to possess, manufacture, import, sell, or give away a long list of prohibited weapons. These all used to be codified under Penal Code section 12020, but now are found in various sections scattered throughout the Penal Code. Some of the more common weapons on the list are blackjacks and billies (section 22210), metal knuckles (section 21810), and nunchaku (section 22010). Penal Code section 21310 makes it a crime to carry a concealed dirk or dagger. Almost any fixed blade knife is considered a dirk or dagger and almost any piece of wood or metal can be considered a billy, if the circumstances indicate that it was to be used as a weapon. If charged as a felony, these offenses carry a maximum of three years in prison. As a misdemeanor, the maximum is one year in jail and a $1000 fine.

Penal Code section 29800 – “Felon with a firearm"

Penal Code section 29800, (formerly known as Penal Code section 12021) is one of the most commonly charged weapons offenses. It punishes people who carry a firearm when they are prohibited by law from doing so. This applies to anyone who is addicted to a narcotic drug or who has previously been convicted of a felony or certain misdemeanors. Such a person is prohibited from owning, purchasing, receiving, or possessing a firearm. When the prior conviction was for any felony or for one of a handful of specific misdemeanors involving the use of a firearm, Penal Code section 29800 must be charged as a felony, carrying a maximum of three years in prison. A related offense, Penal Code section 29805, punishes possession of a firearm within ten years of a prior conviction for one of a list of specific misdemeanors, such as domestic violence or criminal threats. Penal Code section 29805 can be charged as either a misdemeanor or a felony.

Penal Code section 12022 – Being Armed During the Commission of a Felony

Penal Code section is a sentencing enhancement that provides for additional prison time to be served consecutive to the time being served for the underlying felony. During the commission of most felonies, being armed with a firearm, or personally using another type of deadly weapon, will get you an additional year in prison (three years if the firearm is an assault weapon). However, if the underlying crime is a drug felony, being armed with a firearm will get you three to five years tacked on to your sentence, under Penal Code section 12022. That’s why mixing guns and drugs in California is a really bad idea. This sentencing enhancement applies whether the firearm is loaded or not.

Penal Code section 12022.5 – Personally Using a Firearm in the Commission of a Felony

Under Penal Code section, using a firearm during the commission of a felony will get you an additional three to ten years added on to your sentence. “Using" a firearm, for the purposes of Penal Code section 12022.5, includes displaying the firearm in a menacing manner, firing it, or hitting someone with it. The gun does not have to be loaded for this sentencing enhancement to apply.

Common Defenses to Weapons Charges

Illegal Search and Seizure – All weapons cases involve a contact with police, a detention and/or arrest, and a search and seizure. If the police violated your 4th Amendment rights at any stage, it’s possible to get your entire case dismissed.

Lack of Knowledge – In order to be convicted of any weapons charge, the prosecution must prove beyond a reasonable doubt that the defendant knew that he or she was in possession of the weapon. Often, due to the circumstances of the arrest, a reasonable doubt as to knowledge can be raised, resulting in a not guilty verdict.

Lack of Possession – Often a person is charged with possessing a weapon, even when the weapon was not found on their person. While it’s true that you don’t have to be holding a weapon to be possessing it, you do have to be the one who has authority over that weapon. In order to obtain a conviction, the prosecution must be able to prove beyond a reasonable doubt that the defendant was the person who had possession of the weapon. Often, they are unable to do so.

Transitory Possession – It is a complete defense to any weapons possession charge if the defendant only possessed the weapon for a short time for the purpose of disposing of it or destroying it. So, it is possible that a defense can be raised that the defendant was merely in possession of the weapon for the purpose of turning it in to the police, destroying it, or disposing of it. If this defense is raised, the prosecution must prove that the defendant possessed the weapon for some other purpose.

Self-Defense – In some circumstances, it is legal to possess a weapon to defend oneself from an imminent threat, even if it would normally be illegal for the defendant to possess a weapon. This defense can be successful when the facts of the case indicate that the defendant was in danger and possessed the weapon out of necessity.

Weapons charges carry serious consequences and they should be fought hard, exploring every potential defense angle. Fortunately, competent litigation can often result in the dismissal of charges and enhancements. I fight hard for my clients and have been able to help many people avoid the severe consequences of a weapons conviction.