Whereas the second amendment protects the right to bear arms, specific statutes provide guidelines for handling guns in the interest of public safety. One statute is Penal Code 25850. According to the statute, it is a crime for any individual to carry a loaded firearm in a motor vehicle, public place, or public street unless you have a valid concealed weapons permit. The Los Angeles Criminal Attorney team addresses the provisions of Penal Code 25850 in detail, including the defenses you can raise if charged and the possible penalties if convicted.
Carrying a Loaded Firearm Under California Law
Penal Code 25850 details the various violations that could result in prosecution. Primarily, you will face prosecution for a PC 25850 violation if you carry a loaded firearm in your vehicle or on your person on a public street or public location. However, the statute also makes it illegal to:
- Carry a stolen firearm
- Carry a loaded gun while you are an unregistered owner
- Carry a loaded concealed gun when you are not the registered owner
- Carry a firearm while an active participant in a gang
- Carry a gun in violation of the Gun-Free School Zone Act
Note: The Sacramento Superior Court, on July 27, 2022, in the case People of California vs. Tony Diaz, made PC 25850(a) illegal. However, it is best to abide by the statute’s provisions.
Elements of the Crime
Prosecutors bear the burden of proving your guilt in the case. The law requires them to demonstrate the following as accurate for the jury to find a defendant guilty of carrying a loaded weapon.
- You carried a loaded firearm in your vehicle or on your person
- You knew you had the firearm
- When carrying the loaded firearm, you were on a public street, in a public location, or in an area deemed illegal to discharge a gun.
Let us address each element in detail to understand the crime better.
- Public Location
Public places are zones open to any individual who wishes to visit the area for general or common use. Public places include but are not limited to highways, streets, or parks. On the other hand, common places include but are not limited to office buildings, apartment buildings, schools, hospitals, malls, transport facilities, and shops.
- What the Law Considers a Firearm
Firearms are devices designed to be operated as weapons and from which projectiles discharge from the device’s barrel by an explosion. Typical firearms include rifles, pistols, tasers, shotguns, and revolvers. BB guns or pellet guns do not meet this definition since they are not fired by combustion and, thus, are not firearms.
- A Loaded Firearm
Legally, a firearm is loaded if:
- An unexpected shell or cartridge is in the firing chamber, or
- The shell or cartridge is in a clip or magazine attached to the firearm
Additionally, the law requires you to know of the firearm's presence. Only then can the courts find you guilty of carrying a loaded gun. However, the law does not require that you know the firearm was loaded.
Further, it does not matter whether the gun was in working condition. It only matters that it was loaded and is capable of firing.
- Gun Possession or Discharge in a School Zone
California’s Gun-Free School Zone Act, Penal Code 626.9, makes it illegal to possess or discharge a firearm in a school zone. According to the law, a school zone is any place within 1,000 feet of a private or public school.
Exceptions to Penal Code 25850
The law provides exceptions to PC 25850. Therefore, if your case falls within the following exceptions, you will not be convicted of carrying a loaded firearm per PC 25850. You are:
- A peace officer — The list includes police officers, firefighters, federal agents, probation and correction officers
- An active military personnel
- An honorably retired peace officer
- An authorized money transporter or security guard
- Legally carrying a gun for a firing range, hunting, or you keep the gun in a locked container
- A concealed carry weapons (CCW) permit holder
California’s Concealed Carry Laws
Whereas, despite Penal Code 25850, there are exceptions to carrying a loaded firearm. The law allows individuals with a concealed carry weapon (CCW) permit to carry their firearms. In California, it is illegal to have a loaded or unloaded gun openly.
A CCW permit allows ordinary citizens to carry guns legally in public. The permit, however, restricts the guns to revolvers, pistols, or other firearms a person can conceal.
Penal Code 26150 gives the sheriff’s department, in this case, the LA Sheriff’s Department, the mandate to issue the CCW permits. The department sets the qualification criteria per PC 26150 and the department’s procedures and policies. By extension, the department can determine who qualifies for a concealed carry weapon permit.
A firearm on your person is concealed when it is in your pocket, inside a bag, a briefcase, a purse, or any item you are holding that hides the gun. A firearm is only concealed in a vehicle if it is in the trunk of your vehicle or a locked compartment within the vehicle, excluding the glove box.
It bears emphasizing that the CCW permit also comes with restrictions. Having a permit does not give you the green light to:
- Brandishing a weapon violating Penal Code 417 — Brandishing a gun is allowable in case the act was in self-defense.
- Carry assault weapons — Penal Code 30600 bans carrying assault weapons or BMG rifles. Penal Code 30510 lists assault weapons.
- Carry prohibited weapons — Penal Code 16590 lists restricted weapons, including short-barreled shotguns or short-barreled rifles. Legally, short-barreled shotguns and rifles have barrels of less than 18 inches or an overall length of less than 26 inches.
Defenses You Can Assert in a Penal Code 25850 Violation
Gun charges result in substantial penalties if convicted. You can raise several key defenses through your attorney to challenge the allegations. The ideal defense strategy depends on the circumstances of your case. However, all create reasonable doubt. Here is a look at each of them.
- Firearm Was Not Loaded
One of the elements in a PC 25850 case is a loaded firearm. A jury will only find you guilty if you carry a loaded gun. You are not guilty of a PC 25850 violation if the firearm was not loaded. It is worth noting that using this defense means acknowledging that you carried a gun. Therefore, you could be found guilty of a Penal Code 2630 violation, which prohibits people from openly having an unloaded or exposed handgun in a vehicle or a public place.
- Lack of Knowledge of Carrying a Firearm
According to the law, carrying a loaded firearm requires that you know that the gun you carried was loaded. Failure to which you are not guilty of the crime.
You can raise this defense, especially if the gun or vehicle in which the gun was found belongs to someone else.
For example, Sheila takes her brother Jimmy’s car to rush to the store. While on the road, Sheila uses her phone, and for a brief moment, she swerves into the oncoming lane. A traffic officer pulled her over on suspicion of drunk driving. While searching her vehicle, the officer finds the gun underneath the driver’s seat. The officer arrests Sheila for carrying a loaded firearm without a permit.
Sheila is not in violation of PC 25850 because the gun and vehicle belonged to Jimmy. Further, prosecutors will have difficulty proving that Sheila knew of the gun’s presence and that it was loaded. By demonstrating that both the firearm and the vehicle belonged to Jimmy, Sheila’s defense attorneys will show the jury Sheila’s lack of knowledge of the gun’s presence and that it was loaded.
- Legal Exception
You can assert some exceptions to PC 25850 to avoid a conviction. These exemptions are legal reasons to carry a loaded firearm in public. You can raise any of the following exceptions depending on the circumstances of your case.
- A concealed carry weapons permit holder
- A recreational shooter
- An active or honorably retired police or peace officer
- An FBI agent
- A member of the U.S. military
Once proven, a dismissal of your charges is likely.
- Illegal Search and Seizure
In some situations, police officers could discover your gun in an illegal search. A search is illegal if officers lack a warrant or probable cause to search your vehicle. Any evidence obtained in an illegal search will be excluded through a motion to suppress or a PC 1583.5 motion.
Motions to suppress result in reduced charges or dismissals if the prosecution lacks sufficient evidence to proceed to trial.
Penalties for Carrying a Loaded Firearm
The circumstances of your case determine what penalties you will receive upon conviction.
A simple violation of PC 25850 is a misdemeanor whose penalties include the following:
- A jail sentence of up to one year,
- A maximum fine of $1,000, or both.
If there are aggravating factors in your case, you will likely face misdemeanor or felony charges. After reviewing your case, the District Attorney will decide which charges to pursue. Some of the considerations prosecutors consider are whether:
- You are the gun’s registered owner, or
- You have a prior conviction for a drug offense or misdemeanor violation.
If convicted of a misdemeanor, you will serve the penalties mentioned above. However, if you are convicted of felony charges, your penalties increase to:
- A jail sentence of up to three years,
- Fines not exceeding $1,000, or both.
Carrying a loaded firearm becomes a straight felony if any of the following is true:
- The firearm was stolen
- You have a prior firearm or felony conviction
- The gun is not legally possessed
- You belonged to a criminal gang at the time of the crime
- You were legally prohibited from possessing or owning a gun
For a straight felony, a conviction results in the following penalties:
- A jail sentence of up to three years
- A fine of up to $10,000 or both
Mandatory Minimum Sentence
The courts will require you to serve a three-month mandatory sentence if you carry a loaded firearm and have prior convictions for certain offenses. The crimes include:
- Shooting at an inhabited car or dwelling house — A violation of Penal Code 246
- Assault with a deadly weapon — A crime under Penal Code 254(a)(1)
- Brandishing a weapon — A violation of Penal Code 417
Further Consequences of a PC 25850 Violation
Convictions for carrying loaded firearms have an adverse impact on immigration and gun rights.
Gun violations are deportable offenses. Thus, a conviction for carrying a loaded firearm by a non-citizen will result in deportation to your country of origin and being marked as inadmissible. This tag means you will be denied reentry to the United States. However, U.S. Immigration and Customs Enforcement (ICE) will decide whether to deport you after assessing the circumstances of your case.
Another concern is whether a conviction for carrying a loaded gun does impact second amendment rights. Yes, it does. Penal Code 29800 bars individuals convicted of felony charges from owning, possessing, purchasing, or receiving a firearm. You risk additional charges for a PC 29800 violation whose conviction results in three years in prison.
It bears emphasizing that possession is not limited to officers finding the gun on your person or in your hand. It also includes active and constructive possession. An individual has actual gun possession when they knowingly have direct physical control over it. On the other hand, you have constructive possession when you consciously control the gun, either directly or indirectly, through another person.
The law allows individuals who lost their gun rights the opportunity to restore their rights. You can restore your rights by:
- Having your criminal charge reduced — You can have your charges reduced in a plea deal. You can plead guilty to a misdemeanor to avoid a conviction on felony charges. Recall that if your PC 25850 violation case has aggravating circumstances, the offense becomes a wobbler. That is, you can face misdemeanor or felony charges. In this case, you can petition the court after your conviction to reduce the felony to a misdemeanor. This way, you can restore your second amendment rights.
- Have your conviction expunged — Penal Code 1203.4 allows you to request an expungement of your PC 25850 conviction from the records. The courts will set aside your conviction and seal the records. Doing so frees you from the potential challenges a criminal history presents when reintegrating into society post-conviction.
It is worth noting that the courts will not grant your expungement request if you have served a prison sentence.
- Obtain a Governor’s pardon and a Certificate of Rehabilitation — You apply for a Certificate of Rehabilitation. Should the courts grant your application, you will receive an order declaring you rehabilitated. The certificate is then forwarded to the Governor’s office as an application for a pardon. A pardon restores your rights.
Offenses Related to Carrying a Loaded Firearm
You could potentially face prosecution for the following crimes related to carrying a loaded firearm:
- Carrying a concealed weapon — A crime under PC 25400
- Openly Carrying an unloaded gun in public — A PC 2650 violation
- Carrying a Concealed Weapon
You will face prosecution if you carry a concealed gun in your vehicle or on your person. Under this law, the prohibited acts include the following:
- Carrying a concealed firearm on your person
- Carrying a handgun concealed in a vehicle within your direction or control
- Causing someone else to carry a gun within a car in which you are its occupant
Prosecutors must substantiate their allegations by proving the following to be accurate:
- You concealed a gun in a car or on your person
- You were aware of the concealed firearm’s presence, and
- The firearm was substantially concealed
You violate PC 25400 if you carry a concealed firearm without a CCW permit.
It is also important to point out that the law allows taxicab drivers to keep their weapons hidden in their cars. Thus, you are not violating PC 25400 if you are a taxi-cab driver with a concealed weapon in your vehicle.
Penalties If Convicted for Carrying a Concealed Weapon
Without aggravating circumstances, a PC 25400 is a misdemeanor violation. The penalties for this offense include the following:
- A jail sentence of up to one year,
- A fine not exceeding $1,000, or both.
- Summary probation instead of jail time.
Aggravating factors include:
- Prior convictions
- A history of violence
- Failure to cooperate with law enforcement officers during the arrest
- You intended to use the concealed weapon
PC 25400 violations with aggravating circumstances are either straight felonies or wobblers.
Carrying a concealed weapon becomes a straight felony if the following are true:
- You illegally possess the gun
- You have a prior felony conviction or other firearm offenses
- You belong to a criminal gang and are an active participant
- You violated Penal Code 29800 when you were arrested for carrying a concealed weapon
- The law, PC 29900, prevents you from possessing a gun for attempting to commit or committing a violent offense, including but not limited to murder, robbery, rape, and carjacking.
Straight felonies are punishable by:
- 16 months, two or three years in jail,
- A fine not exceeding $10,000, or both
- Up to one year on probation instead of time in jail
Carrying a concealed weapon becomes a wobbler if:
- You have a prior misdemeanor conviction for a crime against another person or his/her property, for a dangerous crime or narcotics in addition to the PC 25400 violation or
Both of the following are true.
- You have ammunition in a place you can easily access or a loaded gun.
- You are not the loaded gun’s registered owner in the Department of Justice’s database.
If convicted of a misdemeanor, you will face the following penalties:
- Up to one year in jail
- A fine of up to $1,000, or both.
On the other hand, if convicted of a misdemeanor, you will face the following penalties:
- 16 months, two or three years in jail
- A fine of up to $10,000, or both.
- Probation with a maximum of one year in jail.
- Openly Carrying an Unloaded Gun in Public
It is a violation of PC 26350 to openly carry an exposed and unloaded gun in public or in a car. This statute outlines the following as the elements of the case prosecutors must prove:
- You had an exposed and unloaded firearm
- You carried the gun in a car or on your person
- You acted so while in a public street or public location
The exemptions in Penal Code 25850, carrying a loaded firearm, apply in Penal Code 2650. Notably, you are not guilty of a PC 26350 violation if you have a valid CCW permit. The exceptions extend to:
- Individuals who practice at target ranges
- People at gun shows
- Licensed firearms dealers and manufacturers
- Common carrier employees, for example, airline employees
- Pawn and gun repair shop employees
- Individuals engaged in producing and rehearsing films and similar forms of entertainment
Penalties If Convicted for Openly Carrying an Unloaded Gun in Public
You commit a misdemeanor offense when you openly carry a firearm in public. You will face the following penalties if convicted:
- A jail sentence of up to one year
- A fine not exceeding $1,000
You will face both the fine and jail time if:
- You also carried unexpended, dischargeable ammunition, and
- You were not the gun’s registered owner.
The courts impose all the above penalties for every gun you carry.
Find a Gun and Weapons Offenses Lawyer Near Me
California has the most stringent gun and weapons laws in the country. Therefore, violating these statutes is a serious offense with consequential punishments. If charged with carrying a loaded firearm, you need assistance from a skilled criminal defense attorney, like the Los Angeles Criminal Attorney. We negotiate reduced charges or represent you in court if the case goes to trial. We have an excellent understanding of the criminal justice system and gun laws. Our assistance will ensure you secure the best legal outcome for your case. Contact us at 424-333-0943 for more information.