As a resident of California, the law gives you the right to own, sell, possess, or even supply guns, provided you are an adult aged 21 years and above. There is, however, some limitation to this right, and you may end up facing a gun offense charge, whether knowingly or unknowingly. Therefore, it is crucial to know the state laws that will limit your right to own or possess a gun.
When you decide to possess, own, sell or transport a firearm, you will need to be conversant with all gun laws as failure may result in you losing your right to own or possess a gun. If this happens, you can consult with our experienced attorneys at Chula Vista Criminal Attorney.
We will develop a defense that will help fight the charges against you. Also, our attorneys will walk with you during the entire time you are facing any gun and weapon charges. Finally, this article will shed light on some gun and weapon crimes you may commit knowingly or unknowingly.
1. Illegal Sale of Unlicensed Firearms in California, PC 26500
Under Penal Code 26500, California makes it illegal to sell, transfer, or lease a firearm without the necessary license. Sometimes, you may face these charges even when you have a valid license to sell firearms. This occurs when you sell illegal firearms, like selling guns that the state classifies as assault or prohibited weapons. It is also unlawful to sell a gun or a firearm to a person, prohibiting owning or possessing a gun. These people include:
- Convicted felons,
- A person who has been convicted twice under penal code 417 for weapon brandishing,
- Narcotics addicts,
- Mental illness patients,
- Minors under the age of 18, and also person below the age of 21,
- A person who doesn’t possess a valid certificate on handgun safety,
- A person convicted of some misdemeanor charges.
You should note that if the law prohibits a person from possessing a firearm, then that person should not own or possess ammunition as well.
Legal Definition of a Firearm
A firearm or a gun is any device designed as a weapon, and it can be expelled as a projectile or via a barrel. To achieve this, the weapon requires an explosive force to combust. Examples of guns and firearms including but are not limited to:
- Devices that contain explosive materials.
What are the Necessary Licenses Required to Sell Firearms?
Though the law allows you to sell firearms, you will need to have the following valid licenses to avoid prosecution for the illegal sale of firearms:
- Local government business permit or license,
- Seller’s permit,
- Federal firearm or gun license,
- A DOJ (Department of Justice) eligibility certificate,
- Be a member of the DOJ list of gun dealers.
Illegal Sale of Firearms Penalties
California treats the Illegal sale of firearms as a misdemeanor offense, and you will face charges under Penal Code 26500. A conviction will ensure you spend up to six months in county jail or pay a fine that does not exceed$1,000. You should note that each penalty is for every firearm you sell illegally.
Legal Defenses against Illegal Sale of Guns or Firearm
When facing the illegal sale of firearms in California, the repercussions may affect your business as well as your life. It is, therefore, crucial to hire an experienced attorney who will work hard to ensure your charges are reduced or dismissed altogether. Some of the defenses that your attorney may use are:
You sold the firearm to someone who is exempted by the law. There are several individuals to whom you can sell a firearm, and if you face illegal sale of firearm charges, you can take the exempted person’s defense. Some of these people include:
- Police or any law enforcement officers,
- Someone who is disposing of a firearm that they inherited,
- You were dealing with a transfer from or to a federally authorized dealer at the time of arrest,
- The gun was on loan to a gunsmith for repairs,
- The gun wasn’t loaded, and it was used for entertainment purposes only like in movie productions.
The Transaction was Via a Licensed Dealer
If you are selling firearms from the comfort of your home, online, or via garage sales, you must engage the services of a licensed dealer. You can, therefore, prove to the court that even if you sold the firearm to someone without performing a thorough background check on them, you did involve a licensed dealer.
2. Possession or Violation of Prohibited Weapon, Penal Code 16590
Penal code 16590 makes it unlawful to own, possess, manufacture, import, sell, give, and lend any prohibited weapon in California. In addition, the term “dangerous weapons” was renamed to “generally prohibited weapons,” giving each weapon a penal code, and any violation will lead to harsh penalties. Some of the “generally prohibited weapons” include but are not limited to:
- Zip gun,
- Undetectable firearm,
- Metal knuckles,
- Wallet gun,
- Case knives like lipstick knives,
- Practice grenade used in the military,
- Ballistic knife,
- Undetectable firearm container,
- Buckle knife,
- Cane gun,
- Large magazines with a capacity to hold ten rounds or more,
- Bullets with explosive agents.
Penalties for Violation of Penal Code 16590
Under Penal Code16590, a violation of this law will lead to a wobbler charge. When you face a wobbler charge, it means that the prosecution can charge you with either a felony or misdemeanor offense, depending on the circumstances and nature of your case. For example, if the prosecution charges you with a misdemeanor for selling, importing, possessing, or manufacturing prohibited weapons. In that case, you may end up facing one-year imprisonment in county jail or paying $1,000 in fines.
When the prosecution charges you with felony charges for possession, manufacture, sale, importation of prohibited weapons, then you may end up facing three years in county jail or payment of $10,000 in fines.
Legal Defenses to Violation of Penal Code 16590
Most weapon laws in California have several exceptions, and generally prohibited weapons law also has its exceptions. Your attorney will walk you through the technicalities and exceptions that you can use to have your charges either reduced or dismissed altogether. In addition, there are some of the defenses that your attorney can use include but are not limited to:
- You were not aware that the weapon in your possession was prohibited,
- The gun is not listed under the banned weapons,
- The firearm was recovered illegally.
3. Carrying a Loaded Gun in your Car or Public, Penal Codes 25850(a) and 12031
Under Penal Code 25850(a) and 12031, it is against the law to carry a loaded gun or firearm in your motor vehicle or on yourself. The prosecution will have the duty to prove that you had a loaded gun in your motor vehicle, you had the firearm in public, and that you were aware you were carrying a loaded gun.
Penalties for Carrying a Loaded Gun in your Car or Public
Carrying a loaded firearm in your vehicle or having it on your person is a wobbler offense. The prosecution will charge you with misdemeanor or felony offenses depending on the nature of your crime and if you have a criminal record. For misdemeanor charges, the penalty will be a one-year county jail imprisonment or pay a fine that does not exceed $1,000.
When the circumstances leading to your charge make it a felony offense, then the penalties will be harsher, with imprisonment going up to three years and payment of $10,000 in fines. Some of the circumstances that could make your offense a felony include:
- Carrying a loaded firearm while you are not registered as the gun owner by the Department of Justice (DOJ),
- You were carrying a stolen gun despite knowing it was stolen,
- You are prohibited from possessing or owning a firearm,
- You are a member of a gang,
- You were previously convicted for gun offense crime,
Legal Defenses to Carrying a Loaded Gun Charges
You will realize that apart from the fines and imprisonment that you will receive upon a conviction, there are other repercussions that you may end up facing. It is, therefore, crucial to have your attorney come up with a legal defense that will see your charges reduced from felony to misdemeanor or dismissed altogether. Some of these repercussions include having your right to own a firearm banned or revoked. In addition, if you are in some profession, your performance might be brought into question, and your immigration status will be affected if you are not a citizen of the United States.
Coming up with a defense that will be beneficial to your case becomes your topmost priority while facing firearm charges, and some of the defenses that your attorney can use to stop the prosecution from moving forward with the case include:
- Proving that the law enforcement officers had no cause to stop and search your car.
- The law enforcement officer failed to read your rights while they arrested you, and
- The police had no cause to search you.
If the prosecution manages to move forward with your case, then your attorney can use the following defenses to have your charge reduced from felony to misdemeanor or dismissed:
- Prove that you were not aware you were carrying a gun,
- Prove that you were not carrying the firearm in a public place but had it on a campsite or at your residence,
- You had the gun for self-defense,
- Prove that the weapon was not loaded.
4. Assault with a Deadly Weapon, PC 245(a) (1)
Under Penal Code 245(a) (1), it’s unlawful to cause or attempt to harm another person using force or a weapon. The law defines deadly weapons as an object which may cause serious bodily injury or even death. Examples of deadly weapons include clubs, knives, bottles, guns, tools, or even steel-toed boots. Sometimes you may end up facing assault with a deadly weapon even when you have not used a weapon but used kicks and punches.
Elements of Assault with a Deadly Weapon Charges
For assault with deadly weapon charges to hold in court, the prosecution will have to prove the following points:
- You had every intention to harm the victim,
- You knew your act would involve the use of force against the alleged victim,
- You used a deadly weapon meant to inflict severe bodily injury,
- You were mentally stable and in a position to apply force on the victim.
It is important to note that with an assault with a deadly weapon charge, the victim doesn’t need to suffer an injury for the charges to hold; all the prosecution has to prove is that you had the intention to harm the victim. All that an injury demonstrates is the fact that an assault took place.
Penalties for Assault with a Deadly Weapon
Penal code 245(a) (1) is a wobbler offense which the prosecution can charge as either a misdemeanor or felony depending on the circumstances of the crime and your criminal record if you have any. If you face misdemeanor charges; your sentence will be:
- Payment of fines that don’t exceed $10,000,
- If you used a firearm, a mandatory imprisonment period that ranges from six months up to one year,
- Weapon confiscation,
- Informal or misdemeanor probation,
- Community service,
- Victim restitution,
- Attending anger management classes.
When your conviction is on felony charges, your sentence will receive a harsh punishment which includes:
- Payment of $10,000 in fines,
- Imprisonment that ranges from two up to four years in jail,
- Victim restitution,
- Weapon confiscation,
- Earn a strike against your record.
You should note that the law always treats an assault with a firearm as a felony if the offense involves using the following weapons, a machine gun, semi-automatic handgun, or any assault weapons. For example, using a semiautomatic pistol will lead to an imprisonment period of three up to nine years in state prison. If you are convicted for using an assault weapon or a machine gun, you may end up with imprisonment that ranges from four up to twelve years in state prison.
Other instances where your assault with a firearm or deadly weapon charges may lead to harsh penalties. For example, if you assault a member of law enforcement agencies, who were actively on duty, then your sentence will increase. You would face an imprisonment period that ranges from four up to eight years if you used an ordinary gun, five to nine years when you use a semi-automatic firearm, and six up to twelve years when you use a machine gun or an assault weapon.
Legal Defenses to Assault with a Deadly Weapon
Since a conviction for assault with a deadly weapon can affect your life negatively, your attorney will have to come with a legal defense that will ensure that your charge is reduced from felony to misdemeanor one or have the charges dismissed altogether. Some of the defenses which your attorney can use include:
● False Accusations
This comes into play if your attorney can prove that the alleged victim had a motive to lie against you. This defense can also be used if there are no witnesses to corroborate the assault charges.
Your attorney can use this defense in circumstances where you reasonably believed you were in danger or someone else was in immediate danger.
● Lack of Intent
For assault with deadly weapon charges to hold in court, the prosecution must prove your intent when it comes to using the weapon. Therefore, your attorney can prove that the injury or death resulted from an accident and not from your willful act.
● Inability to Carry Out the Crime
Your attorneys can use this defense in a situation where you threatened to use a gun, but the gun was not loaded. This will show that even if you threatened to shoot, you had no intention to do so, and therefore you were not in a position to inflict severe bodily injury.
5. Carrying a Concealed Weapon, PC 25400
California Penal Code 25400 prohibits carrying concealed and loaded guns or firearms in public if you do not have a license to carry concealed weapons. Therefore, when law enforcement agents arrest you for carrying a loaded gun without a valid license, the prosecution has to prove the following elements before your charge can be held in court.
- You carried a firearm concealed in your vehicle, a vehicle where you were a passenger, or in a car you controlled.
- You were aware that you carried a concealed firearm.
- You carried a firearm that could be concealed.
You should note that it is not a crime to carry a concealed firearm or weapon, but it becomes an offense when you conceal this weapon. For instance, if you carry a concealed weapon on a belt holster or put a gun on your vehicle’s trunk, you cannot face carrying concealed weapon charges as the weapons are not concealed. However, you will face carrying concealed weapon charges when you put a handgun in your car’s glove box.
Penalties for Carrying a Concealed Weapon in California
Under Penal Code 25400, carrying a concealed weapon is a wobbler offense. This means that you can either face felony or misdemeanor charges depending on the circumstances of the crime. For misdemeanor charges, the penalties include facing one-year imprisonment in county jail, payments of $1,000 in fines, or misdemeanor probation.
You will face felony charges when you are prohibited from possessing or owning a gun. In addition, when you are an active gang member, you are a convicted felon if you carried a stolen gun knowingly or had a suspicion that it was stolen, and when you have a previous weapon conviction in California. A felony conviction will lead to an imprisonment period that ranges from sixteen months up to three years, or payment of $10,000 in fines.
Legal Defenses to Carrying a Concealed Firearm
If you face carrying concealed firearm charges, you can hire a skilled attorney who will develop defenses that aim to reduce your charge or have it dismissed. Some of the defenses you might use include but are not limited to:
● The Firearm Wasn’t a Concealable
The law defines a concealable firearm as one that has a barrel that is 16inches or less. Therefore, if you were arrested carrying a firearm with a longer barrel, the charge should not be held in court.
● You were Unaware of possessing the Firearm
For carrying a concealed firearm charge to hold in court, the prosecution must prove that you were aware you had the said concealed firearm. But if you were not aware that you had a concealed handgun in your possession, then you should not face these charges. For instance, if you are a taxi driver and after dropping off your passenger, the police pull you over and find a gun at the back seat of your taxi and arrest you. Again, your attorney can prove that you were not aware that you were carrying or owned a concealed firearm.
Possession of a Firearm or a Weapon by a Convicted Felon, PC 29800
Penal Code 29800 prohibits a convicted felon from owning, possessing, or buying a firearm. Sometimes you do not have to necessarily be a convicted felon for the law to prohibit you from possessing a gun. If you are among the person on the list below, the law bars you from having a firearm:
- Illegal immigrant.
- If you surrender your United States citizenship.
- If you are a stalker under a court order.
- Justice fugitives.
- If you were dishonorably discharged from the military.
Some misdemeanor convictions will ensure that you are barred from owning, possessing, or buying firearms for a period of up to 10 years. Some of these misdemeanor convictions include threats, assault, or domestic battery.
Penalties for PC 29800 Violation
- Have your gun rights revoked for a minimum period of ten years.
- If you are a minor, you will not possess a gun until you reach 30 years.
Contact a Chula Vista Criminal Defense Attorney
When facing gun or weapon charges, you must obtain the best representation as a conviction could affect your life negatively. Your reputation may end up ruined, and sometimes you may lose some educational and employment opportunities. It is therefore essential that you hire an experienced criminal defense attorney to represent you.
California gun and weapon laws are complicated. Therefore, if you have any questions or you need a consultation, feel free to contact our attorneys at Chula Vista Criminal Attorney. Our defense attorneys will discuss your case and develop possible defenses to ensure you achieve the best outcome in your case. Contact us at 619-877-6894, and we will discuss your options confidentially.