Carrying A Loaded Firearm

Under Penal Code (PC) section 25850, it is unlawful to carry a loaded firearm in a public place or inside a vehicle in your possession or under your control.  A violation of code section 25850 is typically prosecuted as a misdemeanor unless certain aggravating circumstances apply.

WHAT MUST THE PROSECUTOR PROVE

To prove you guilty of a violation of Penal Code section 25850, the prosecutor must establish beyond a reasonable doubt the following elements of the crime: a) you carried a loaded firearm, b) on your person, in your vehicle, or a public place, and c) you had knowledge of the loaded firearm in your possession.

Let’s take a closer look at the elements.

“Loaded”

A firearm is loaded when any of the following applies: the weapon has unexpended cartridge or shell; it contains a case that holds a bullet or a shot; it is capped or primed; or has a power shot or ball in the barrel or cylinder.

"Public place"

A public place is any place open to the public and readily accessible to the public.

DEFENSES TO CARRYING A LOADED FIREARM

There are a few common defenses to carrying a loaded firearm under Penal Code section 25850.   Some examples of these defenses include:

  • You had no knowledge that you were carrying a firearm

If you did not know that you were carrying a loaded firearm, then you cannot be found guilty of a violation of Penal Code section 25850.  This defense applies best when you are not carrying the gun on your person.  For example, security officers check Jack’s backpack at the airport and find a loaded firearm in the pocket of the backpack.  If Jack had no knowledge of this firearm—e.g., if he accidentally brought his brother’s backpack—then Jack cannot be found guilty of a violation of Penal Code section 25850.

  • The firearm that you were carrying was not loaded

If the firearm that you carried was not loaded, then you cannot be found guilty of a violation of Penal Code section 25850.  In that scenario, you may be guilty of a violation of Penal Code section 26350, which prohibits carrying an unloaded firearm in a public place.   In the example above, let’s assume that the gun is found in Jack’s backpack but the ammunition for the gun is located in a different part of the backpack.  Because the gun is not in a “firing” position, Jack is not carrying a loaded firearm. 

  • You had no knowledge that you were carrying a loaded firearm

Assume that you knew that you were carrying a firearm but you did not know that the firearm was loaded.  For example, you always carry a loaded firearm in the center console of your vehicle but on one particular occasion, and unbeknownst to you, your brother loaded the firearm and put it back in the center console.  In this scenario, you may be able to assert a “mistake of fact” defense in that you reasonably and genuinely believed that the gun was not loaded.   If you successfully assert this defense, you may still be guilty of violating Penal Code section 26350, carrying an unloaded firearm in public.

  • You were not carrying the firearm in a public place

A “public” place is any place that is open to general use and that is readily accessible to the public.  If you carried the firearm in a private area, then you cannot be found guilty of a violation of Penal Code section 25850.  For example, you are arrested in the parking lot of your friend’s condo.  The officers find a loaded firearm in your possession.  The parking lot where you were arrested is not a public street in an incorporated city.  Therefore, you cannot be found guilty of a violation of Penal Code section 25850.

  • You were carrying the loaded firearm in self-defense

Under California’s self-defense law, you can carry a loaded firearm if you reasonably believe that you or any person near you is in imminent danger and that the carrying of the weapon is necessary to deflect this imminent threat.  

  • You fall under a protected category and are thus exempt from prosecution under Penal Code section 25850

You are exempt from prosecution under Penal Code section 25850 if you fall under any of the following categories:

  • Peace officers and federal agents

Under Penal Code section 25900, a California Peace Officer, active or honorable retired, is exempt from prosecution for carrying a loaded firearm.

  • Members of the military

Under Penal code section 26000, members of the military engaged in the performance of their duties are exempt from prosecution for carrying a loaded firearm.

  • POST certification

Under Penal Code section 26035, if you are an animal control police or zookeeper or harbor patrol police officer and you have completed a regular coarse in firearm training approved by the Commission on Peace Officer Standards of Training (POST), you are exempt from prosecution for carrying a loaded firearm

  • Legitimate hunting activities

Under Penal Code section 26005, you are allowed to carry a loaded firearm while  hunting at permissible locations.  However, you have to carry your gun to and from these premises in a locked container.

  • Concealed weapons permit

If you have a license to carry a concealed weapon, then you are exempt from prosecution for carrying a loaded firearm. Common questions regarding a concealed weapons permit.

  • Security guard and private investigators

Under Penal Code sections 26015 and 26030, security guards and private investigators are exempt from the prohibition against carrying a loaded firearm, so long as certain conditions are met.

PENALTIES FOR CARRYING A LOADED FIREARM UNDER PENAL CODE SECTION 25850

Carrying a loaded firearm under Penal Code section 25850 is typically prosecuted as a misdemeanor.  If convicted of a misdemeanor under section 25850, you are subject to informal or summary probation, a maximum of one year in county jail, and up $1,000,00 in fines.

Depending on the particular circumstances of your case, and if certain aggravating circumstances exist, carrying a loaded firearm under Penal Code section 25850 can become a wobbler, which means it can be prosecuted as either a felony or a misdemeanor.   These aggravating circumstances include a previous misdemeanor conviction against a person or a property, a previous misdemeanor conviction involving a narcotic or dangerous drug, or if the loaded gun was not registered to you with the Department of Justice.  If you are convicted of a misdemeanor PC 25850 under these aggravating factors, then you face the same penalties as a regular PC 25850 misdemeanor.  If you are convicted of a felony PC 25850 under these aggravating factors, then you face 16 months, 2 years, or 3 years in county jail, and a fine of up to $1,000.00.

The code lists other aggravating circumstances that elevate a PC 25850 to a felony.  These aggravating circumstances include a previous conviction for a felony or any other gun offense, you had reason to believe that the gun you owned was stolen, you unlawfully possessed the firearm, or your are an active participant in a criminal street gang.  A conviction under these aggravating circumstances subjects you to 16 months, 2 years, or 3 years in county jail, and/or a maximum fine of $10,000.00.   Note that the jury must find beyond a reasonable doubt that at least one of these aggravating circumstances existed in your case.  If the jury cannot make this finding, then you cannot be convicted of a PC 25850 as a felony. 

Prior firearm convictions also enhance the punishment for a PC 25850 conviction.  You must serve a minimum of three months in county jail for a conviction under PC 25850 if you have also suffered a prior conviction for assault with a deadly weapon (PC 254), shooting at an inhabited dwelling house or car (PC 246), and brandishing a weapon (PC 417).

OTHER CONSEQUENCES OF A CONVICTION FOR CARRYING A LOADED FIREARM UNDER PENAL CODE SECTION 25850

If you are granted probation for a misdemeanor or felony conviction under Penal Code section 25850, and if you successfully complete all terms and conditions of your probation, you may petition the court for a full expungement of your record.  If you  suffered a felony conviction under PC 25850 charge that constitutes a wobbler, the court may reduce your charge from a felony to a misdemeanor upon successful completion of your probation.

A misdemeanor conviction for PC 25850 does not prohibit you from owning or possessing a firearm.  A felony conviction for PC 25850, however, does pose a lifetime ban on you for purchasing, receiving, owning, or possession a firearm.  Note that  reduction to a misdemeanor under a successful petition for an expungement does not apply to this ban.

HOW OUR LOS ANGELES CRIMINAL DEFENSE LAWYER CAN HELP

Negin Yamini will thoroughly investigate the particular facts of your case to assert any and all defenses that apply to your specific circumstances.  Thorough lawyering, one that Negin conscientiously applies to every case, can mean the difference between an outright dismissal of your PC 25850 criminal charges versus a dragged-on and misguided prosecution, and a misdemeanor versus a felony conviction.

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