Penal Code section 25400 prohibits carrying a firearm concealed within any vehicle under your dominion or control, carrying a firearm concealed within your person, or causing the firearm to be hidden or concealed within a vehicle in which you are an occupant.
Elements of the crime
In order to convict you of a violation of Penal Code section 25400, the prosecution has to prove beyond a reasonable doubt the following: 1) you concealed a firearm in your vehicle or on your person; 2) you knew that you were in possession of a concealed firearm; and 3) the firearm was substantially concealed.
For purposes of Penal Code section 25400, a firearm is any device that is used or designated to be used as a weapon. Firearms under code section 25400 include pistols, revolvers, handguns, rifles, shut guns, and tasers. Any device containing explosive or incendiary material is also considered a firearm.
You can be charged with Penal Code section 25400 only if you conceal a firearm. If you carry the firearm in plain view, you cannot be charged with this offense. As long as the gun is partially concealed, and even if it is identifiable, you can be found liable for the offense. For example, Jack was pulled over for a traffic violation. In the course of the traffic investigation, Jack was patted down by an officer. The officer saw 3-4 inches of the head of a gun in Jack’s back pocket and could immediately identify the object as a gun. Though the object in Jack’s pocket was identifiable and only partially concealed, Jack could still be charged with a violation of penal code 25400.
“Carried on the person”
This element of the code section requires simply that you physically possess the concealed weapon. It matters not that the gun is not actually on your person so long as it is in something that you are holding. Thus, whether the gun is in your pocket or inside a briefcase, a purse, or a bag that you are holding, you can be charged with a violation of code section 25400.
You “knew about the presence” of the gun
In order to convict you of penal code section 25400, the prosecution has to prove that you “knew” that you were carrying a concealed weapon. If you had no knowledge of the presence of the gun or that it was concealed, you cannot be found guilty of this offense. For example, Jack and his son, Joe, are traveling together. Jack mistakenly picks up Joe’s bag and places it on the security belt at the airport. Security spot a firearm in the briefcase. Jack cannot be found guilty of Penal Code section 25400 because he had no knowledge of the firearm in Joe’s briefcase.
PENALTIES FOR PENAL CODE SECTION 25400
Misdemeanor conviction under code section 25400
If there are no aggravating circumstances, carrying a concealed weapon in violation of Penal Code section 25400 is a misdemeanor. If convicted of a misdemeanor 25400, you face a maximum one-year of county jail, a maximum fine of $1,000, or summary probation. Whether or not the prosecution will seek jail time for a misdemeanor conviction under 25400 depends on a variety of factors such your criminal history, history of violence, any evidence that you intended to use the concealed weapon, and your demeanor with the law enforcement officers.
Felony conviction under code section 25400
Carrying a concealed weapon under Penal Code section 25400 is prosecuted as a felony under the following circumstances: you have previously suffered a felony conviction for a firearm offense; the firearm you allegedly concealed was stolen and you knew or reasonably should have known that it was stolen; you are an active member of a criminal street gang; you were not in lawful possession of the firearm; you were in possession of the firearm in violation of Penal Code section 29800 (California’s felon with a firearm). If convicted of a felony under Penal Code section 25400, you face probation with up to one year of county jail, a maximum fine of $10,000; or 16, 2, or 3 years in county jail.
Code section 25400 as a wobbler
A violation of Penal Code section 25400 becomes a “wobbler,” meaning it can be prosecuted as a felony or a misdemeanor, under either of the following circumstances: 1) you suffered a previous conviction for a misdemeanor against a person or property, or for a narcotic or dangerous drug crime; 2) your firearm is loaded and you are not the registered owner of the firearm. Under these circumstances, whether you are charged with a felony or misdemeanor depends on the circumstances of your specific offense and your criminal history.
If you have suffered a prior firearm conviction and you are convicted of a misdemeanor or felony Penal Code 25400, you must serve a minimum 3 months county jail sentence. You must serve between 3 and 6 months in a county jail if you are convicted of a section 25400 and you have suffered a prior conviction for “assault with a deadly weapon” (Penal Code section 245(a)(1), “shooting in an inhabited dwelling house or car” (Penal Code section 246), and “brandishing a weapon” (Penal Code section 417). These minimum jail requirements, however, are not set in stone. You may be able to avoid jail time if justice is best served by granting you probation and suspending your minimum jail time.
In addition to the above penalties, if you are convicted of a felony 25400, you will lose your right to possess a firearm.
DEFENSES TO A PENAL CODE SECTION 25400 CHARGE
- You are exempt from prosecution under Penal Code section 25400
If you are a peace officer (whether active or honorably retired), licensed firearm dealer, a member of the U.S. military, bank guard or messenger, a member of a target shooting club or organization, and a licensed hunter or fisher transporting a firearm for purpose of hunting or fishing, you are exempt from prosecution under Penal Code section 25400. However, for this exemption to apply to you, the following conditions have to be met: 1) the firearm, if a gun, has to be unleaded; and 2) the firearm has to have been carried and concealed by you for purposes of certain activities related to the exemptions above.
- You had no knowledge of the presence of the firearm
If you did not know or did not realize that you were carrying a firearm, you cannot be found guilty of a 25400.
- The gun was in a locked container or trunk in your vehicle
You are not guilty of carrying a concealed firearm under Penal Code section 25400 if your firearm as in the trunk of the car or in a locked container within the car (not including the glove compartment) AND lawfully own the gun.
- You have a license to carry a concealed weapon
You are exempt from prosecution under code section 25400 if you have a license or permit for carrying a concealed weapon under Penal Code section 26150. The burden is on you to prove that you have this license or permit.
- The concealed weapon was in your home or place of business
If you have a valid license or permit to own or possess a gun, you can carry a concealed firearm in your own home or business. If you work or live in your car, however, this rule does not apply to you unless you are a taxi or cab driver. If you are a taxi or cab driver, you are allowed to carry a concealed weapon inside your vehicle.
- You were the victim of illegal search and seizure
The Fourth Amendment protects your right to privacy of your home and vehicle. Law enforcement have to have either your expressed consent, a legitimate warrant, or justification under a qualified exception to search your home and vehicle. If all of these criteria were absent in the police officer’s conduct, then the evidence against you was the result of an illegal search and seizure. As such, this evidence is inadmissible in a court of law. A skilled defense attorney can use this factor as basis to earn a dismissal of the charges against you, or as leverage to negotiate a more favorable disposition on your behalf.
- You carried the weapon in self-defense
If you carried the concealed weapon in self defense, then you are not guilty of a code section 25400. This theory applies if you believed that carrying the weapon and concealing it would prevent an imminent harm to your safety.
HOW CAN WE HELP
Carrying a concealed firearm is one of the most heavily charged offenses in California. That is because the offense requires only a few elements, which police officers often hastily conclude. Negin Yamini thoroughly examines the facts of your case and your criminal history to identify all defenses and/or mitigating in your. She will artfully and relentlessly challenge any weaknesses in the investigation along with all relevant legal defenses to either get the charges dismissed or negotiate a better deal on your behalf.