Carrying a Loaded Firearm

California Penal Code 25850 is the law that makes it a crime to carry a loaded firearm in a vehicle or on your person in a public place. Violating this provision is a misdemeanor, and if there is the existence of aggravating factors, the offense is considered a wobbler. If charged with carrying a loaded firearm, an experienced attorney from Orange County Criminal Lawyer could help navigate the law provisions and have the charges reduced or dropped.

What is a Firearm?

A firearm is any device that discharges a projectile by explosion through a barrel. The device should have been designed to be used as a weapon. Some devices that qualify in this definition include pistols, rifles, revolvers, tasers, and shotguns. Devices like pellet guns and BB guns in law don't qualify as firearms.

A firearm is loaded if there is an unexpected cartridge or shell in the firing chamber. These components could also be found in a magazine or clip attached to the firearm. If you were not aware that a firearm existed, you are not guilty. However, a conviction on this statute doesn't require you to have been aware that the firearm was loaded.

For example, when you drive, and there is a firearm in your car, you are not aware of it, but you must prove your innocence. The other instance is when you carry a firearm in your car, assuming it is not loaded. You are later found guilty of carrying a loaded firearm in public. Since you knew you carried a gun, it doesn't matter whether or not you knew it was loaded, and you will be held liable.

The following individuals are legally not allowed to carry firearms: It is an offense for those convicted of felons, specific misdemeanors, and drug addicts to carry a gun. If under a court order, an individual is under stalking charge, fugitives, aliens, and dishonorably discharged military members. You can only possess or carry rifles and assault weapons with a permit to do so. Laser pointers and stun guns can only be held under regulation.

Provision of PC 25850

A public place is accessible by the public, including public streets, parks, sidewalks, or any common use area. The statute provides reasonable restrictions on the firearms that can be possessed and controls on who can legally own them. It’s not possible to have a total ban on all firearms. There are outrightly illegal firearms, while others become illegal after making some modifications, such as increasing the magazine's capacity or changing the type of ammunition.

Statutory Exemptions to PC 25850

The law further exempts some categories of individuals from criminal liability for carrying firearms in public. They should, however, observe and adhere to the laid regulations. You are exempted from a conviction for unlawfully carrying in public a loaded firearm if you are:

• An authorized money transporter or security guard, or private investigators
• A peace officer such as a federal agent, or probation officer
• Member of active military personnel
• Active police officers or honorably retired.
• POST certification - a harbor patrol police officer, zookeeper, and animal control police after completing a regular course in firearms approved by the Commission on Peace Officer Standards of Training (POST).
• Legitimate hunting activities - You would not be guilty of carrying a loaded gun if you are involved in legitimate hunting activities. You can have the loaded firearm while at permissible locations hunting. The firearm should be held in a locked container to and from the hunting ground.
• A concealed weapon permit holder

Elements of the Crime

If you drive or walk in a public place carrying a loaded firearm in your person or car, you could be guilty of the crime. You are also culpable if you drive or walk in your neighborhood, carrying a loaded firearm in your pocket. The prosecutor must establish the below elements of the crime for you to be convicted:

• The prosecutor must prove that you carried the loaded firearm in your vehicle or your person.
• The prosecutor must show evidence that you knew you were carrying a loaded firearm in your vehicle or person.
• That you had the loaded firearm in a public street place or such other place where carrying a firearm is prohibited.
• That the public street or place where you were carrying the firearm was an area within an incorporated city or an unincorporated area and discharging a firearm in such an area is unlawful.

The prosecution could also charge you on several other crimes depending on the facts of the case. These include carrying a stolen firearm, unlawful possession due to court order, conviction or mental illness, carrying a firearm and you are actively participating in a gang, carrying a loaded firearm. You are not the registered owner, possession of a concealed firearm, and you aren't the registered owner and for carrying a firearm violating the 'gun-free school zone act.'

Restrictions on Carrying a Loaded Firearm

Some specific firearms are permanently prohibited, and it’s illegal to possess, manufacture, or sell them. The statute was enacted to ban anyone from selling, possessing, and designing firearms that are light, short, or easy to conceal. Such firearms are silent and effectively used for criminal and unlawful intent. The common restrictions include the following:

1. Possession and Movement of Firearms

You are allowed to have shotguns, rifles, and other similar firearms that are not concealed, and you can freely move about in some locales as long as the firearm is not loaded. The ‘right-to-carry’ laws are regulated by enforcement agencies who issue permits to a limited extent to persons who are qualified applicants. You can't carry a firearm in specific locations prohibited by the law like buildings leased or owned by federal, local, or state government, financial organizations, and educational institutions. Law enforcement officials are allowed to use firearms while on the course of official duty. You must seek protection for the Interstate transportation of firearms.

You are not prohibited from shipping, receiving, and transporting firearms for a lawful purpose from anywhere. The firearm must be unloaded during such transportation, and the ammunition or firearm must not be directly or readily accessible at the passenger compartment of the transporting vehicle. If the transporting vehicle doesn’t have a separate compartment from the driver's compartment, the ammunition or firearm shouldn't be contained in the console or glove compartment but should be locked in a container.  

2. Carrying Concealed Firearms

Carrying a concealed weapon in public is prohibited unless issued with a concealed weapons license. You can otherwise carry a loaded concealed firearm without a permit in public if you reasonably believe that you are in grave danger following the circumstances that form a basis for a current restraining order as issued by the court. The court that issued this order found out that the defendant is a threat to your safety or life. The restrictions of carrying a restricted firearm in public don't apply to peace officers, whether honorably retired or active.

California is a ‘’may-issue” state. It means that it’s upon the local law enforcement's discretion to issue carrying concealed weapons licenses. The licensing authorities issue the permit after establishing that:

• You have good morals and have not been prohibited by federal law or state from possessing, owning, purchasing, or receiving a firearm
• There exists a good cause to issue the license
• You have completed a course on firearms safety
• You must meet the relevant residency requirements
• You are mentally and physically competent. You are referred for psychological testing from a licensed psychologist

The Concealed Weapons Permit allows you to carry a concealed firearm such as a pistol or revolver, which is easily concealed in your person. You must have been a person of good moral conduct to obtain the permit. There also should exist a good cause for the license to be issued. For instance, the permit is necessary if you or your family is in potential danger.

Carrying a concealed firearm in your car or your person is a criminal offense. The firearm could be hidden in the car, under your control, or caused the firearm to be carried by another vehicle or person. The concealed firearm doesn't have to be in your possession for you to be guilty.

The prosecution must establish that you possessed a concealed firearm in your car or person. That you were aware of the concealed firearm, and the firearm was significantly concealed. You wouldn’t be guilty if you carried the weapon in plain view. Carrying a firearm openly on belt holsters doesn’t fall under carrying concealed firearms.

In the absence of aggravating factors, it's a misdemeanor to carry a concealed weapon. The penalties are up to a year in county jail and a fine of up to $1,000. Instead of time in prison, the court could grant you summary probation. If aggravating factors exist, the crime may attract felony charges.

Penalties for Carrying a Loaded Firearm

Several different circumstances surround carrying a loaded firearm unlawfully, and the penalties as well differ significantly from case to case. You may be charged with unlawfully carrying a firearm if you carry an illegal firearm or illegally carry a legal firearm.

The consequences for carrying a loaded firearm is jail time or fine. Usually, carrying a loaded firearm while in a public place is a misdemeanor where you are subjected to summary or informal probation, time in county jail, or fine of up to $1,000. Depending on certain aggravating factors, the crime could become a wobbler meaning it could be prosecuted as either a misdemeanor or a felony. You serve a minimum of up to 3 months in jail following a similar prior conviction.

The aggravating circumstances include a prior misdemeanor conviction against property or an individual, a previous misdemeanor conviction on a dangerous or narcotic drug, or that the loaded firearm had not been registered to you by the Justice Department. If convicted of a misdemeanor under aggravating factors, you will face similar penalties as a regular misdemeanor. If you're convicted of a felony under aggravating factors, you face up to 16 months to 3 years in county jail or a fine of up to $1,000.

Some other aggravating factors would elevate the conviction to a felony. Such circumstances include a prior felony conviction or other gun offense, where you reasonably believe that you owned a stolen firearm, you had possessed the firearm unlawfully, or you participated actively in a criminal street gang. A conviction on such aggravating factors subjects you up to 16 months to 3 years in prison or fines up to $10,000.

A previous firearm conviction enhances your punishment for PC 25850 conviction. You have to serve up to 3 months in the county jail. If you had a prior conviction against assault with a deadly weapon, brandishing a weapon, or shooting at an inhabited dwelling place, your current conviction is enhanced.

You are charged with a felony if you had previously been convicted of a felony, and your rights to a firearm could be revoked for ten years or life. Carrying a concealed firearm is a misdemeanor, and you risk a one year jail time or a fine of up to $1,000. Under aggravating factors the crime becomes a felony.

You had a firearm, and you were not the registered owner. To possess a firearm without a permit is a misdemeanor and carries a potential jail time sentence of up to one year. It’s a crime if you carried a firearm and you were actively participating in a gang, or you were carrying a stolen firearm, and you were aware of it.

Brandishing a firearm is a misdemeanor showing or drawing a firearm, whether loaded or not, in an angry or threatening manner. Punishment of the offense depends on the circumstances. If the firearm was of the type that could be easily concealed and you were in a public place, you could be sentenced a minimum of 3 months to one year in jail. If the offense was not in a public place, you face between 30 days to one year jail time.  Brandishing a firearm in a vehicle is a felony, and you could be sentenced to prison for 16 months to 3 years.

If you possess a firearm and at the same time you are in the commission of another crime, your penalty is enhanced. Suppose you face a sentence that is a felony on weapons charges. In that case, several factors are put into consideration, which includes what the weapon was, how it was used, if it was concealed, and your criminal history.

Penalties for carrying a firearm near or on specific prohibited places vary according to the location. If convicted of carrying a firearm near a school, you could face up to 7 years in county jail, and if you were near or on a government building, you could face up to 3 years in county jail. If you carry a firearm in a public transit system or an airport, you could be sentenced to 6 months in county jail or a fine of $1.000.

Suppose you are convicted of unlawfully carrying a firearm, besides the monetary fines and jail time. In that case, further consequences include loss of legal right to own or buy a firearm, a potential strike in the three-strikes law, or deportation for illegal immigrants.

When you are granted probation for a misdemeanor or felony conviction and complete the probation's terms and conditions, you could petition the court for full expungement over your record. If you had been subjected to a felony conviction under charges that constitute a wobbler, your charges could be reduced from felony to misdemeanor upon completing your probation.

A misdemeanor conviction doesn’t prohibit you from possessing or owning a firearm. However, a felony conviction poses a lifetime ban from possessing, purchasing, owning, or receiving a firearm. Reduction of the felony to a misdemeanor after successfully petitioning for an expungement doesn't apply to the ban.

Related Offenses

There are associated crimes with carrying a loaded firearm in public. Such related offenses include the following:

Carrying an Unloaded Firearm in Public

Carrying an unloaded firearm in public is a misdemeanor. If convicted of the offense, you face up to 1 year in county jail or pay a fine up to $1,000. It is illegal to carry a firearm, whether unloaded or loaded openly. You are also held liable if found in possession of a firearm, and you are not the legal owner.

Unlicensed Sale of Firearms

It is a crime to transfer, sell, or lease a firearm without a valid license. You shouldn’t also transfer, sell, or lease the authorized firearms. Selling a firearm without a license is a misdemeanor. The penalty is a prison time of up to 6 months or a fine of up to $1,000. The penalty applies for every firearm sold without a license.

The Role of a lawyer

A lawyer greatly influences the outcome of your case. Gun offenses are very strict, and a defense lawyer would help you out. In your case, some of the roles of a lawyer include:

• Advising on the appropriate defense strategies
• Helping you in the necessary paperwork and gathering facts for the case
• Identifying lapses in the prosecution’s evidence
• Identifying challenges the prosecution evidence presented against you
• Providing a convincing defense to solve your issue

Defenses to Carrying a Loaded Firearm

There are some common defenses available for carrying a loaded firearm. These are as follows:

You were not Aware You were Carrying a Firearm

You can’t be held guilty of the crime if you didn’t have the knowledge that you were carrying a firearm. The defense best applies if you were not carrying the firearm on your person, for example, where you are found in possession of a loaded firearm belonging to a family member that you accidentally carried.

The Firearm was not Loaded

If you carried a firearm that was not loaded, you would not be guilty of violating Penal Code Section 25850 but for violating Penal Code Section 26350, which prohibits you from carrying an unloaded firearm in public places. In this case, the ammunition could be found in a separate backpack as the firearm wasn't in a firing position. Better still, you could have been carrying a weapon that doesn’t qualify as a firearm. For instance, if it was a BB or pellet gun, you shouldn't be charged.

You were not Aware the Firearm was Loaded

You could have been aware you had a firearm, but it wasn't in your knowledge that it was loaded. Probably you had always carried an unloaded firearm in your car, but a family member happened to load it without your knowledge. If you are charged for carrying a loaded firearm in public, a lawyer could help you out by defending with a mistake of fact. This defense could probably work, but you would still face charges of carrying an unloaded firearm in public PC 26350.

You were subjected to Illegal Search and Seizure

The police could have subjected you to an illegal search when they discovered you were in possession of a loaded firearm. The police should have probable cause before searching and a valid warrant. If the police had received the evidence through an illegal source, a defense lawyer would request removing from your charges illicit evidence. Your charges could be dismissed or reduced if the judge approves that the illegally obtained evidence be excluded from your case.

You Didn’t Carry Firearm in Public

The law defines a public place as any publicly accessible place. If you didn't carry the firearm in public, you can't be held liable for the crime. The police could have, for instance, arrested you in your private resort. In your private place, it isn’t a crime to be in possession of a loaded gun.

You Carried the Firearm for Self-Defense

You could carry a loaded firearm in public in self-defense. You reasonably believed that you or another person was in danger. If you are arrested and face criminal charges, your lawyer could defend you that you carried the loaded firearm as a deflection of the imminent threat.

Contact A Criminal Defense Lawyer Near Me

California laws on gun offenses are stringent and complicated. If you face carrying a loaded firearm charge, talk to an experienced Orange County Criminal Lawyer. The lawyer will develop the best defense for your case. Call us now at 714-262-4833.