The Second Amendment of the U.S. Constitution guarantees individuals the right to possess firearms. But in California, the laws that restrict gun possession are the most restrictive. You are prohibited from carrying a loaded firearm in public, and upon arrest for this offense, you will be subject to misdemeanor penalties. Luckily, at The LA Criminal Defense Law Firm, we are here to represent you when faced with these accusations in Los Angeles.

Understanding What Carrying a Loaded Firearm Means

California PC 25850a makes it illegal for you to possess or be in control of a loaded firearm inside an automobile or in the public. Public areas under this statute include public streets, parks, sidewalks, or any other site that would make it a crime to carry a loaded gun. Acts like wandering in a neighborhood with a loaded firearm or strolling a park with a loaded shotgun would result in charges under PC 25850a.

Elements the Prosecutor Must Prove Under PC 25850a

The prosecutor must demonstrate specific elements, to prove you are guilty of violating this code section. Some of the things that he or she must show within reasonable certainty include:

  • You were carrying a loaded firearm on you, in a car, or open setting

  • You were aware that you were carrying a loaded firearm

  • At the time of carrying the firearm, you were in an unrestricted area

  • The open area was within an incorporated city or unincorporated area that prohibits possession of a loaded firearm.

A firearm is any device used as a weapon to discharge a bullet or shot through a cylinder by combustion. Revolvers, pistols, Tasers, or shotguns are some of the common examples of firearms under this statute. Keep in mind that pellet guns and BB guns are exempted from this list of weapons because CO2 and not combustion powers them.

On the other hand, a firearm is loaded if the firing chamber contains an unexpended shell or cartridge or has a magazine or a clip that holds the bullets capped or attached to the gun. If the shot is in the barrel, the firearm is also deemed to be loaded.

It’s worth noting that you must know that the firearm was in your possession to get sentenced` for this crime. However, whether or not you were aware the gun was loaded is not necessary for proving guilty. For instance, if you decide to drive around but you have no idea that you are carrying a gun in your car, even if you are arrested and charged with violation of PC 25850a, the court cannot convict you.

However, if you knew that a gun was in the car but had no clue it was loaded, if you are arrested and charged with carrying a loaded firearm, the court will find you guilty.

Exemptions of PC 25850

Particular people are exempted from prosecution under this code section. You cannot be convicted of PC 25850 (carrying a loaded firearm) if you are:

  • An active or honorably retired peace officer like a police

  • An out of state peace officer performing lawful duties in California

  • An active member of the armed forces

  • A holder of concealed weapon permit

  • A legitimate hunter

  • An authorized private investigator or security guard

The category of people listed above have the right to carry a loaded gun but under certain circumstances. If you are a legitimate hunter, you can bring a loaded gun to the place of hunting, but it must be stored in a safe container.

Sentence and Consequences for PC 25850 Violation

Typically, the offense of carrying a loaded firearm is a misdemeanor. Upon misdemeanor sentencing, you will face informal probation, incarceration in Los Angeles county jail for a maximum of one year, and a court fine not exceeding one thousand dollars. However, under particular circumstances or where aggravating factors are present, the offense is prosecuted as a wobbler.

The aggravating circumstances that could result in a misdemeanor prosecution include:

  • If you as the defendant has a prior misdemeanor sentence involving an individual or property.

  • If a prior misdemeanor sentence involved narcotics or controlled substances

  • If your personal information doesn’t appear on the DOJ records

Upon sentencing, you will be subject to the same penalties as those of violating PC 25850 free of aggravating circumstances.

The prosecution can charge you with felony PC 25850 if the following aggravating factors are present:

  • You have a prior felony sentencing

  • The DOJ records indicate the gun in your physical possession is not registered under your name.

  • You had knowledge or reason to believe that you owned a stolen firearm

  • You had the gun while engaging in activities that benefit a criminal gang

A sentence under these aggravating circumstances will result in the following punishments:

  • Sixteen, twenty-four, or thirty-six months of jail custody

  • Court fines not more than ten thousand dollars

Keep in mind that the judge can only impose the above punishments if the prosecutor proves beyond a reasonable doubt that any of the above aggravating circumstances are present in your case. If the jury is not convinced of the findings by the prosecution, they will impose the regular PC 25850 violation penalties.

Prior convictions for firearms crimes like an assault with a deadly weapon, shooting at an inhabited dwelling household or car, and brandishing a weapon could result in sentence enhancement for not less than three months jail custody.

Other Consequences of a Conviction for Carrying a Loaded Firearm in Public

If the court imposes probation for a misdemeanor or felony sentence under PC 25850, and you complete the probation, you can request the court through your attorney to expunge the conviction from your criminal record. If you are subject to felony charges as a wobbler, successful completion of probation terms and conditions will allow you to petition the court to lower the charges to a misdemeanor.

The reduction of charges on your record from a felony to a misdemeanor means that you will have the right to own a firearm. Remember that California laws prohibit individuals that end up with sentencing for a felony from purchasing or being in control of a gun. If the aggravating circumstances in your case result in felony charges and you end up with sentencing for the same, you lose your constitutional right to own a gun.

In California, a person convicted of a misdemeanor as per PC 25850 is free to own a firearm. It means that if your charges are reduced through expunction to a misdemeanor, you will be an exception from the ban on possessing or buying a gun. After the charges have been reduced to a misdemeanor, you can petition the court to dismiss the charges.

Legal Defenses for Carrying a Loaded Firearm

There is a manifold of legal defense strategies your criminal defense attorney can apply to have the charges under PC 25850 lowered or dismissed. These defenses include:

  1. Lack of Knowledge of the Presence of a Firearm

If you were not carrying the gun on your person, your attorney could assert that you lacked knowledge that you were carrying a firearm as outlined under PC 25850. You could claim that you accidentally brought the backpack containing the gun, or someone left it in your car without your knowledge.

Remember, one of the critical elements the prosecutor must show in this case is that you knew you were carrying a loaded gun. Therefore, if you didn’t know about the presence of the firearm on your person or in the vehicle, you won’t be found guilty.

  1. The Firearm in Your Possession was Unloaded

To end up with a conviction under this statute, the prosecutor must demonstrate the firearm was in a firing position or was loaded. Therefore, if the gun was not attached to the magazine when the arrest occurred, or the firing chamber had no unexpended cartridges or shells, you are innocent of PC 25850 violation. However, you might still face charges under PC 26350 for carrying an unloaded firearm.

  1. You Fall Under the Category of Persons Exempted from PC 25850

As mentioned earlier, a specific group of protected persons is allowed to carry a loaded firearm but under particular circumstances. So, if you belong to this group of people like:

  • Peace officers

  • Target shooters

  • A holder of concealed carry permit

  • POST certification holder or

  • An authorized money transporter or security guard, your attorney could argue that you are legally allowed to bring with you a firearm in a firing position

  1. Self-Defense

The law allows you to carry a loaded gun if you have a reasonable belief that you or another individual is in imminent danger and that taking a firearm would help repel the threat.

  1. Unlawful Search and Seizure

Police need to have reasonable suspicion to stop you in traffic and search your car. So, if the traffic stop that resulted in your charges was illegal, the evidence obtained from it is inadmissible in court. The same case applies to a search and seizure. Police need to have a search warrant; otherwise, even if they find a loaded gun on your person, it won’t be used as evidence because the evidence was obtained illegally. If your attorney can demonstrate this, the charges will be lowered, or the case will be thrown out.

Take note that you could also argue that although your gun was loaded at the time of arrest, you were in a restricted area that is not open to the public, which is not a crime under PC 25850.

Related Offenses

There are several gun offenses related to carrying a loaded firearm. These offenses include:

Carrying a Concealed Weapon

You will be criminally liable under California PC 25400 if you conceal a pistol, revolver, or any other type of firearm that can be hidden within an auto that is in your control, physically possess or cause to be carried in a car in which you are an occupant. The concealed carry ban still stands, which means it is no longer legal to carry a concealed weapon. You can only take a concealed weapon if you have a concealed carry license issued by the sheriff. The requirements for issuance of this permit have also changed because it is no longer granted to people who feel unsafe but only to the law-abiding Californians.

The offense can either be a misdemeanor or a felony. And before you end up with a conviction, the prosecution must prove the following element:

  • You concealed a firearm on your person or in a car. Concealing as per PC 25400 means carrying the gun in a hidden fashion that makes it difficult for a person to identify you are carrying one. Remember, openly carrying a firearm is not a crime. However, as per PC 26350, you are criminally liable for carrying an exposed firearm or an unloaded handgun outside of your car. But from the beginning of 1st January 2012, it is a crime to openly carry a gun, whether it is loaded or not.

  • You knew of the presence of a concealed gun

  • The gun was substantially concealed

The statute is similar to carrying a loaded firearm in terms of how the gun is carried. It can either be taken through physical possession or in the vehicle.

But the two are different under PC 25400. The gun can be loaded or unloaded while under PC 25850, the firearm in your physical possession or vehicle must be loaded. If you were concealing a loaded gun in your car’s glove box, the prosecutor could charge you with both carrying a concealed weapon and carrying a loaded firearm. In case your attorney proves the gun you were taking was not loaded according to PC 25850, they could charge you with a PC 25400 violation.

PC 25400 is a wobbler. If you end up with sentencing for a misdemeanor, the punishment will include summary probation, at most one thousand dollars in court fines and custody in a county jail for twelve months. When found guilty for a felony charge, the consequences include formal probation with a maximum jail sentence of one year, 16, 24, or 36 months in jail and up to ten thousand dollars in fine.

To fight the charges under PC 25400, you could assert that:

  • You lacked knowledge that you were carrying a gun

  • The gun was in a locked container or trunk of your auto

  • You have the permit to carry a concealed gun

  • The hidden gun was within your residence or place of work

  • Self-defense

  • The concealed gun was obtained through illegal search and seizure

  • The arresting officer engaged in police misconduct

Openly Carrying an Unloaded Firearm in Public

California PC 26350 is the law that forbids you from carrying an unloaded gun in public. This statute repeals the open carry law. Before the enactment of PC 26350, it was legal to carry without concealing an empty rifle in an open area. However, you were required to carry the gun in open sight and not around an area you are prohibited from setting foot on. But in January 2012, the law was repealed, and PC 26350 came into effect.

Under this statute, the prosecution must demonstrate that you openly carried an exposed or unloaded handgun, on your physical possession or in your car, while in a public place or street. Keep in mind that a gun is deemed not to be carried in an open fashion if it is concealed. Sometimes the court will charge you with concealing a weapon even if the firearm is partially covered.

Facing charges under PC 26350 is not very different from charges under PC 25850 because the two are filed as misdemeanors if aggravating circumstances are absent. The penalties for openly carrying an unloaded gun are the same as those of misdemeanor PC 25400 and PC 25850 which include:

  • Informal probation

  • Jail incarceration for no more than a year

  • A maximum of $1000 in court fines

The prosecution usually charges PC 26350 alongside carrying a loaded firearm. If the defense attorney proves under misdemeanor PC 25850 that the gun was unloaded, they can charge you with openly carrying an unloaded gun, which is a different gun offense but carries similar penalties.

When faced with allegations of PC 26350 violations, your defense attorney could assert on your behalf that you have a license that allows you to carry a concealed weapon and that you are a handgun permit holder. You could also argue that you were engaging in official duties that exempt you from PC 26350 charge. It is also possible to claim that you were in a restricted area, the gun you were carrying could not be concealed, or the weapon was found during an illegal traffic stop.

Unlicensed Sale of Firearms

California PC 26500a prohibits you from selling, leasing, or transferring firearms without a permit. And even when you have the license, the gun in question must be the one authorized under the license. The definition of a firearm under this statute is similar to that of PC 25850.

As per this statute, certain people are prohibited from owning or being in control of a firearm. These include:

  • Any person with a felony conviction

  • Persons hooked to controlled substances or narcotics

  • Individuals with at least two convictions for brandishing a weapon

  • Individuals with mental conditions

  • Minors 18 years or younger and persons below the age of 21

Take note that some people will not be held criminally liable for the unlicensed sale of firearms. These persons include:

  • Law enforcers

  • Loan of a firearm to a gunsmith for repairs

  • Use of props in movies or TV shows

  • Persons disposing of inherited guns

  • Firearm transaction with federally-authorized firearm importers, dealers, and producers

  • Temporary loan of firearms to target facilities

Keep in mind that although the above exemptions exist, they must meet particular conditions. Not everyone understands these conditions, so you need a criminal defense lawyer when subjected to these charges.

In California, every firearm transaction that happens must be through a licensed dealer. Even the deals that are private or those exempted from this statute must be brokered through licensed individuals. A person without a license to transact can lease or sell firearms, but they must involve a licensed individual in the transaction.

California has specific requirements that must be met before one is issued with a license to transact firearms. Some of these requirements include:

  • Valid federal firearms permit

  • Relevant local authority’s business license

  • A seller’s license from the State Board of Equalization

  • A DOJ issued an eligibility permit

  • Listing on the DOJ’s centralized list of firearm dealers

Even after a license has been issued, it doesn’t mean you are free to deal with just any firearms. Your permit will explicitly state the kind of guns you should trade.

The offense of unlicensed sale of firearms can be charged alongside carrying a loaded firearm. If the prosecution has no evidence to support PC 25850 charges, they could charge you with PC 26500a violation if they can prove the firearms in your possession were for sale or lease.

The unlicensed sale of firearms is a misdemeanor, and upon sentencing, you will face the following penalties:

  • No more than a half a year in jail custody

  • Court fines not exceeding one thousand dollars

Fortunately, several defenses can be used to contest these charges. One of the arguments you could apply is that you are exempted from this law, particularly if the arresting officer didn’t know you are exempted. If you are unlicensed and sold a gun to an undercover decoy, your attorney could argue police entrapment to have the charges dismissed or reduced.

Find a Criminal Defense Attorney Near Me

When faced with charges of carrying a loaded firearm in Los Angeles, reach out to The LA Criminal Defense Law Firm today at 310-935-1675. Our attorneys will provide a free and confidential evaluation of your case and devise various strategies to challenge the charges.