A firearm is acceptable in the country, provided you have a valid license. Despite this, you can only carry a loaded firearm in authorized areas, and having it in a public place can attract legal repercussions. Upon facing charges for carrying a loaded firearm, you must consult an experienced criminal defense attorney to help you understand the court trial process.
Further, they will help you establish the nature of your criminal charges, including the possible defenses to help you avoid criminal liability. With a skilled attorney guiding you through the trial process, you have a better chance of securing a positive case outcome.
At Chula Vista Criminal Attorney, we dedicate our services to helping you find the most beneficial defense mechanisms for your case. Our goal is to help you prepare persuasive criminal defenses to reduce the criminal blame you face. We also aim to conduct in-depth research to ensure your case presentations are credible and cast reasonable doubt on the prosecutor’s case.
The Nature of the Offense
California law prohibits carrying a loaded firearm in public under Section 25850 of the Penal Code. The legal provisions make it a criminal offense to have a loaded gun inside your car, on a public street, or in any other public area. The primary reason for the restrictive laws is to ensure the general public's safety. If all citizens who own firearms were allowed to carry their loaded firearms in public spaces, more reports of gun crimes are likely to emerge.
Based on the legal restrictions applicable, anyone found carrying a loaded firearm in public may face misdemeanor or felony charges, depending on the circumstances of their case. Moreover, if the presiding judge finds you guilty, you could face jail sentences or fine payment orders.
After the prosecutor handling your case receives police reports, they will assess the facts of your case and establish whether the matter is triable in court. Therefore, contacting your defense attorney soon after an arrest is advisable to help you prepare for the subsequent trial procedures.
Usually, carrying a loaded firearm as a charge can cause several other consequences for an accused person, which may reduce your access to opportunities. As a result, you need to prepare a strong defense case by anticipating what the prosecutor will likely present during your trial.
Elements of Crime for the Prosecutor to Prove
Prosecutors carry the burden of proof in criminal cases, making them responsible for demonstrating that you violated the law. Criminal trial regulations also require the prosecutor to provide evidence that proves your guilt beyond a reasonable doubt. High standards are applied to ensure that all convicted parties rightfully face penalties and that no unfair practices are applicable.
The main elements of the crime are:
You Were in Possession of a Loaded Firearm
To begin the case, the prosecutor must prove that you had a loaded firearm on your body or inside your vehicle. To do this, they must first establish that the weapon you allegedly carried was a firearm and that it was loaded.
Understanding the definition of a firearm within the context of a criminal trial is, therefore, necessary, as it helps you establish whether the prosecutor’s claims are truthful. Guided by Penal Code provisions, a firearm can be any device that serves as a weapon, potentially harming other parties.
Further, the weapon must dispel a projectile powered by explosions, harming anyone within its range. Bullets are often the type of projectile used in firearms, making it essential for the prosecutor to establish whether your gun can hold them.
Examples of firearms that attract criminal charges include shotguns, revolvers, and pistols. You may also face arrest for carrying a rifle if you carry it beyond areas restricted for hunting or designated as shooting ranges.
Lastly, although Tasers do not release a projectile after the explosion, they fall within the firearm category. The primary reason for this is that they inflict instant pain on the targeted person through electric waves that could cause serious harm.
On top of proving that your weapon was a firearm, the prosecutor must also demonstrate that it was loaded. Doing so is essential because it prevents you from wrongfully facing criminal charges that are inapplicable if your weapon was unloaded.
To establish whether your firearm is loaded, the prosecutor must show that it has a shell or cartridge ready to fire. Moreover, they can show that the cartridge is in a clip or magazine linked to the weapon. You can expect the prosecutor to present the actual firearm seized from you during your arrest as their primary source of evidence.
Additionally, they will rely on police reports from the arresting officers in charge of seizing your weapon. If any witnesses were present and could confirm that you carried a loaded firearm, they would also appear as prosecution witnesses to support his case.
The element of crime also requires the prosecutor to establish that you had the weapon on your person or inside your vehicle. In doing so, they seek to place blame on you because you used your body or a car to carry it.
Primary evidential sources to show that you had the weapon on your person or vehicle include photographs, police reports, and witness statements. The prosecutor can also request testimonies from anyone who reported to you and drew attention to your wrongdoing.
You Were Aware That You Had the Loaded Firearm With You
Upon establishing that you carried a loaded firearm, the prosecution team should demonstrate that you knew you were carrying the loaded gun. The goal of proving this element of the crime is to discount any counterarguments you may raise about the lack of knowledge about carrying the weapon.
When handling this crime element, the prosecutor intends to show that your actions, demeanor, or decisions before arrest indicate that you were knowledgeable about the loaded firearm. Since this requires proving that you had criminal intent to break the law, the prosecutor focuses on circumstantial evidence to build on their argument.
For example, they may present footage that shows you hiding the firearm under your clothing, indicating that you were aware of the unlawfulness of carrying it openly. Similarly, they may welcome testimonies from witnesses who saw you trying to conceal the weapon in your car to avoid drawing the attention of law enforcement officers.
Additional information may also form part of the evidence, provided it is relevant to the case. Due to this, you want to listen carefully to the details provided in court to ensure they correspond to the accurate facts of what transpired.
You Carried The Loaded Firearm In A Public Space
Lastly, the prosecutor should show that you carried the firearm in an unauthorized public area, violating penal code provisions. To meet this requirement, the prosecutor must first define a general area within the context of the current charge.
Public spaces are any areas open to the public without the need for prior authorization or requests for access. For example, public parks are public areas widely accessible to people of different ages. Further, institutions like schools and churches may also fall within the public area definition based on regular members' ease of access. Streets and recreational areas are also public spaces where carrying a loaded firearm is prohibited.
The prosecutor's primary goal is to demonstrate that you were within a public area, and they should show that you were around any of the mentioned zones. If your arrest occurred outside an area defined as public, you could raise a counterargument to dispute the prosecutor’s position. Nevertheless, you must provide evidence to support your statement and persuade the court of your innocence.
Defenses for Carrying a Loaded Firearm
After the prosecutor completes their presentation, you can present your defenses to the case. You need to use this chance to cast reasonable doubt on the prosecutor’s case and persuade the jury or judge to consider your position for a better chance of a favorable case outcome. Additionally, you can use the defense hearing to introduce new case facts that may pivot your case's trajectory.
Taking your time to build solid defenses is crucial to the outcome, so you must conduct in-depth research and consolidate your evidential sources. Your criminal defense attorney will help you prepare your facts accordingly so you do not have to worry about meeting the technical requirements. Nevertheless, you want to provide helpful information about the case, as you may be better equipped with the facts than your defense attorney.
Some applicable defenses to consider for your case include the following:
You Have a Legal Exemption to Carry a Loaded Firearm
Although the general rule under Section 25850 is that no person should carry a loaded firearm publicly, some exemptions apply to people with legal permits. These include law enforcement officers and peace officers. The exemption can also apply to federal law enforcement agencies, provided the individuals carrying weapons are licensed.
As a defense, you can claim membership in any recognized group of persons authorized to have a loaded firearm in public. However, you must present documents supporting your defense or risk overruling it.
Additionally, you may need to explain why you failed to present the information sooner, resulting in an unnecessary court trial. If so, you can express any unique circumstances that prevented you from identifying yourself as an authorized officer, including a lack of access to the requisite documents to prove your position.
If you successfully present your defense, you may receive an acquittal and avoid facing any legal repercussions. Conversely, the prosecutor may counter your defense by showing that you are currently on suspension from duty, invalidating your membership in an exempt group.
You Were Unaware of Carrying a Loaded Firearm
Alternatively, you can claim that you were unaware of carrying a loaded firearm, meaning you did not violate the law intentionally. The defense is likely more helpful if police officers retrieve the weapon from your vehicle because you can justify forgetting about its presence until your arrest.
On the other hand, claiming that you were unaware of the loaded firearm after it was seized from your body may be more challenging. The primary reason is that your argument is less credible, and you will have to answer more questions about how the weapon ended up on your body during cross-examination.
Nevertheless, you can still rely on the defense if you have a genuine argument and sufficient evidence to support your position. For example, if you live with a mental health condition that causes regular amnesia, you can produce medical reports to show that you were genuinely unaware of carrying a loaded firearm.
You Belong to the United States Military
Members of the U.S. military fall within a particular group of citizens who are exempt from facing legal penalties if they carry a loaded firearm in public. They enjoy immunity based on their experience in service and as an honorary benefit of having served the state at any point in their missions.
Showing that you are a U.S. military member, whether active or retired, is a fairly straightforward process that only requires you to produce the relevant documentation. However, if this fact is disputed, you may need to make an extra effort to demonstrate that your claims are truthful.
For example, your attorney can contact your former station commander on your behalf to verify your details and validate your identity. If the court accepts your defense, you will receive an acquittal for the wrongful prosecution.
Law Enforcement Officers Retrieved the Gun from an Illegal Search and Seizure
Although you may be in the wrong for carrying a loaded firearm in public, law enforcement officers must respect the law when trying to retrieve the weapon. Legal procedures require the officers to obtain a valid arrest and search warrant before invading your space as they try to prove that you violated the law.
Failure to observe the legal requirements violates your constitutional rights, and you can rightfully raise the issue as a defense. In doing so, you must elaborate on how the law enforcement officers obtained the gun from you. If they invaded your personal space and searched your body, you can present supporting evidence like footage or witness statements.
Similarly, you can raise your defense if the officers enter your car to obtain the gun as evidence against you. You can present photos of your broken locks or windows to show that they conducted an illegal search and seizure, making the evidence they obtained inadmissible.
While the defense is effective when backed with helpful evidential sources, it does not guarantee your acquittal. The presiding judge or jury may acknowledge your concerns but issue a lighter sentence if the prosecutor can show that you still violated the law by carrying the firearm in public.
Your Firearm was Unloaded
Since the elements of crime in the charge require that your firearm must have been loaded, you can counter the argument by contradicting the prosecutor's position. However, since this defense is technical, you must have sufficient evidence that the firearm in question was unloaded or risk facing additional penalties for libel (providing false information under oath).
If you believe you faced the wrong charges because the firearm was unloaded, your defense attorney should help you produce supporting evidence. For example, you can present images of the gun moments before arrest to show that the clip or magazine was empty. Similarly, you can call witnesses to support your defense, provided they are close to you, and confirm that the firearm was unloaded.
Penalties for Carrying a Loaded Firearm
Although you may present strong and persuasive defenses to your case, the presiding judge and jury determine the outcome based on whether the prosecutor proves your guilt beyond a reasonable doubt.
As a result, if the prosecutor’s case were stronger, the judge would enter orders against you, making you a convicted party. You will receive all relevant details about your sentence during the sentencing hearing, where the judge provides all the information necessary for you to take the following steps.
In California, carrying a loaded firearm is a wobbler offense, which may result in either misdemeanor or felony penalties. The difference in case outcome depends on case circumstances, and each case presents different facts.
Misdemeanor Penalties
As a misdemeanor, you will likely face a jail sentence for up to one year or a fine payment order for up to $1000. Parties facing felony penalties may face a sentence of up to three years in county jail or pay a fine of up to $1000.
Straight Felony Penalties
Further, aggravated factors may result in a straight felony as a penalty, attracting even harsher penalties. You will likely receive a straight felony order if you have faced a previous conviction for carrying a loaded firearm in public. The harsher penalties are punitive to prevent you from engaging in the offense repeatedly.
Additionally, you may face a straight felony if you use the firearm for street gang activities like robbery, carjacking, and kidnapping. If your case involves these circumstances, you may also face separate charges for the specific crime for which you used the gun.
Straight felony orders are also applicable if legal restrictions prevent you from owning a firearm. Based on this, you should not possess any loaded or unloaded firearm because it would contravene existing legal rules. These prohibitions may arise due to a prior criminal conviction related to gun offenses. Thus, the prosecution team has a right to arrest you in these circumstances and charge you with a straight felony.
Further, if you obtained the firearm in question through theft or other unlawful means, you also risk facing felony charges. The law does not condone using illegal means to acquire property, so you will not have the right to carry the firearm, loaded or unloaded, if its details show that it belongs to another person. The prosecutor must prove that you stole the gun to persuade the court to convict you successfully, and your defense attorney should help you prepare solid defenses.
A straight felony conviction attracts a jail sentence of up to three years and a fine penalty of up to $10,000. The presiding judge may vary the terms of the sentence depending on the circumstances of the case.
Penalties Related to Carrying a Loaded Firearm
Arrested persons may face charges for penalties related to carrying a loaded firearm, depending on the circumstances of the case. Among them is carrying an unloaded firearm in public, which is prohibited under Section 26350 of the California Penal Code. While an unloaded firearm is essentially harmless, it is still offensive, and a violation of the law. Thus, you may face misdemeanor or felony charges based on the varying case facts.
Additionally, you may face charges for carrying a concealed weapon, whether loaded or unloaded. If so, you will be accountable for contravening Section 25400 of the Penal Code, resulting in misdemeanor or felony charges if your case involves aggravating factors.
Contact a Personal Injury Attorney Near Me
While owning a licensed firearm is not an offense, carrying a loaded gun publicly attracts legal consequences, including jail sentences. Due to the severe nature of the crime, you want to work closely with a criminal defense attorney to help you fight the charges and avoid legal penalties.
When choosing a defense lawyer, ensure they are skilled and well-equipped to handle your case, giving you a better chance of securing a favorable outcome. Moreover, your lawyer should update you on the essential elements of your case to help you understand how progress is going.
At Chula Vista Criminal Attorney, we work closely with you to ensure you receive high-quality criminal defense services for your case. Our team of attorneys is well equipped to handle your charges, thanks to the years of experience they have gained working on similar matters.
Therefore, you can expect the team to provide valuable information and support that helps you understand more about your case and how to defend it. If you or a loved one needs criminal defense services to fight charges of carrying a loaded firearm, call us today at 619-877-6894.