Most Californian residents can lawfully purchase, possess, or own firearms. However, state firearm laws are complex and numerous. You can easily violate the law or be falsely accused and be dragged through the criminal justice system to answer for firearm charges if you do not know all the restrictions and regulations or how to behave in a manner that complies with the law.

Firearm-related criminal charges are punished more harshly. If you have been charged or arrested, contact an experienced lawyer immediately for help. At Monterey Criminal Attorney, we provide expert defense to defend the rights and freedom of clients accused of fun offenses. Call us for a complimentary consultation to learn more about what to anticipate and how our lawyers can assist you in obtaining the most favorable resolution for your case.

An Overview of California Gun Laws

California firearm laws are stringent, including over 100 statutes that regulate everything from purchasing ammunition and guns and mandatory criminal background checks to outright gun possession prohibitions for people with mental health, drug abuse, or criminal histories that place them in the high-risk category. The state's firearm laws are among the harshest nationwide, increasing the odds that you could be arrested for a gun-related crime.

A gun offense can be a misdemeanor or felony contingent on the nature of the violation, intent, or past criminal history. Mostly, however, these types of offenses are prosecuted as felonies. Both misdemeanor and felony convictions for firearm crimes carry fines, an incarceration period, and a potential permanent criminal record. For a sentence of certain gun crimes, one of the ironic repercussions is the loss of the right to possess or own firearms, with the ban for a felony conviction being for a lifetime and that for a misdemeanor conviction being for ten years.

A conviction for violent gun offenses can have more devastating consequences, leading to a more extended prison term. Additionally, various sentencing enhancements may apply, like the state's 10-20-life firearm sentencing enhancement described under PC 12022.53.

Types of Firearm Offenses Prosecuted In California

California laws regulating firearms aim mainly to stop people from owning guns in given circumstances and shooting or brandishing them, especially when others might reasonably be hurt. The following are some of the most common  firearm-related offenses:

Penal Code 29800, Felon in Possession of a Firearm

Penal Code 29800 prohibits convicted felons (or people with active felony warrants against them) from possessing, purchasing, or owning guns. This prohibition further applies to people with certain previous convictions involving guns and narcotics addicts.

A felon is anybody who has been found guilty of a felony crime anywhere, whether in California, a different state, or a different country or government. In some cases, a felon can also be someone who has been found guilty under federal statute.  

A narcotics addict refers to someone who is both physically and emotionally dependent on a controlled substance and has an increased tolerance for its effects.

Lastly, prior gun-related convictions that can trigger charges of felon with a firearm include a conviction for the violent use of a gun per PC 23515 and two or several convictions for brandishing a weapon under PC 417(2)(a).

For you to be guilty of violating PC 29800, the prosecution must demonstrate the following facts, making up the crime:

  • You are a convicted felon (or have an active warrant against you), have a conviction or convictions of violent gun offenses, or are addicted to controlled substances
  • You received, possessed, purchased, or owned a firearm
  • You were aware of the gun's presence

A felon with a firearm is considered a felony offense. If convicted, you will be subject to three years in prison and a court fine of not more than $10,000. However, based on the case facts, the judge can sentence you to formal probation as an alternative punishment to prison time. You may also face immigration consequences like deportation or inadmissibility if you are an alien.

Penal Code 25400, Carrying a Concealed Gun

Under PC 25400, carrying a concealed gun in a motor vehicle or on your person is a criminal offense unless you possess a valid concealed weapons permit (CCW). For the judge to convict you of this crime, the D.A. must show that:

  • You concealed a gun on your person or in a motor vehicle under your direction or control
  • You were aware of the concealed firearm’s presence
  • The gun was substantially concealed

People exempt from facing prosecution under this law include, without limitation, peace officers (be they honorably retired or active), U.S. military members, licensed gun dealers, bank messengers or guards, licensed fishers or hunters transporting or using their guns for these activities, and target shooting club or organization members. However, even with these exceptions, certain conditions must be met, including that the firearm be unloaded or used solely during particular activities.

Carrying a concealed weapon is deemed a wobbler violation. A wobbler is a crime the D.A. chooses to prosecute as a misdemeanor or felony based on the case facts and the defendant’s criminal history. A misdemeanor carries up to 12 months in jail (or summary probation instead of custody) and a fine not exceeding $1,000. A felony conviction carries up to three years in prison or probation with 12 months in jail and up to $10,000 in fines. If you are an alien, a conviction under PC 25400 could additionally subject you to deportation.

Penal Code 246, Shooting at an Occupied Vehicle or Inhabited Dwelling

Section 246 of the Penal Code prohibits discharging a gun at an occupied building, vehicle, aircraft, or an unoccupied dwelling or housecar, for example, an RV.

You can be subject to a conviction under this law even if no one was in the structure at the time of your shooting. What counts is somebody presently resides in that structure. Shooting at an unoccupied dwelling or auto is still a crime charged under PC 247(b), a distinct Penal Code Section. PC 247(b) is a less severe offense. The elements of this crime are:

  • You maliciously and deliberately shot a gun.
  • At an inhabited camper, housecar, house, or occupied auto, aircraft, or structure

Violating PC 246 is deemed a felony offense punishable by felony probation, six to twelve months in jail or seven, five, or three years of incarceration, and a fine not exceeding $10,000. The prison term could be more than seven years if you killed or injured the victim while committing your crime. And since this crime is considered violent, you can also lose your gun rights.

Violating PC 246 is also considered a deportable crime. So, if you are a non-U.S. citizen and the court finds you guilty of violating this law, you can be subject to the serious immigration consequences of deportation and inadmissibility.

Penal Code 26500, Unlicensed Sale of Firearms

Under California PC 26500, it is criminal to lease, transfer, or sell guns without a valid permit or license. There are various exceptions for transferring firearms between family members. And even then, the transfer must be for the type of gun authorized under the license or permit.

Certain guns, transactions, and people are exempt from prosecution under 26500 PC. These include, without limitation,

  • Police officers
  • Delivering unloaded relics or curios to licensed collectors of antique guns
  • Use of unloaded guns utilized as props in TV shows, movies, and other entertainment productions
  • The temporary loaning of guns at target facilities
  • Transfers from and to federally authorized gun importers, manufacturers, and dealers
  • The rare transfer of personal guns, including at gun shows
  • People disposing of firearms they have inherited
  • Individuals acting under the operation of court order or law
  • Loaning a firearm to a gunsmith for repair

However, note that these exemptions have exceptions, too. Thus, you want to contact an experienced defense lawyer if charged under this law. A skilled lawyer understands the state firearm statutes and all their nuances.

Selling firearms without a valid permit or license is considered a misdemeanor violation. A conviction carries six months in custody and a fine of not more than $1,000 for every gun you illegally transferred, sold, or leased.

Penal Code 25850 Publicly Carrying a Loaded Gun

Penal Code 25850 is the state's law that criminalizes carrying or possessing a loaded gun in public without a valid CCW. For the prosecutor to secure a conviction under this statute, they must demonstrate beyond any reasonable doubt that:

  • You carried a loaded firearm in your motor vehicle or on your person
  • You were aware you were carrying the firearm
  • When you carried the gun, you were on a public street or in a public area in an incorporated area or city where firearm firing was illegal.

Public places refer to areas open to general and common use and readily accessible by anybody wishing to visit.

A simple PC 25850 violation is considered a misdemeanor carrying a jail term of up to 12 months and a court fine of not more than $1,000. However, aggravating circumstances can make the crime a straight felony or wobbler. Also, you will be subject to three months mandatory minimum jail if you have particular prior criminal convictions.

Like all the other laws we have discussed, a conviction under this law can also have adverse immigration consequences if you are an immigrant, such as deportation and inadmissibility.

Penal Code 26350 Carrying an Unloaded firearm

Carrying an unloaded gun in a vehicle or public place is a crime in California. The elements of this violation are:

  • You carried an unloaded and exposed handgun
  • Inside a motor vehicle or on you
  • While on a public street or in a public place

Exempted from criminal charges under this law include:

  • Individuals with a legal permit or license to carry a gun
  • Military personnel
  • Police officers (whether honorably retired or active peace officers)
  • Licensed firearms dealers and manufacturers
  • Hunters
  • People practicing at target ranges
  • Individuals at gun shows
  • Workers of common carriers, for example, airlines
  • Employees of pawnshops and firearm repair shops
  • Individuals engaged in producing and rehearsing movies and other kinds of entertainment

The crime is a misdemeanor punishable by not more than 12 months in custody and a court fine of $1,000. You would also be subject to a fine and jail term if you were convicted of carrying dischargeable, unexpended ammunition and were not the legal gun owner. Additionally, these consequences are for every unloaded firearm you were caught carrying.

Penal Code 245(a)(2), Assault with a Firearm

California law describes assault with a gun as assaulting someone else using a pistol, shotgun, rifle, machine gun, semi-automatic firearm, assault weapon, or 0.50 BMG rifle. Assault is defined under PC 240 as an illegal attempt to inflict violent harm on another, accompanied by the present capability to do so. It is considered an assault even if nobody sustains an actual injury.

The assault using a firearm takes different forms, including pointing the gun at the person, pistol-whipping or striking the person, firing the firearm at the person, or shooting the individual. The facts making up the crime of assault using a firearm are:

  • You did an act with a gun, and that act would likely lead directly to the use of force on somebody else
  • You committed the act willfully
  • When performing the act, you knew about the circumstances that would result in a reasonable party believing that the action would likely and directly lead to utilizing force on that individual.
  • When you committed the act, you possessed the present capability to apply force using the gun.

These are the elements the prosecution must demonstrate for the judge to convict you of this crime.

The consequences of assault using a gun vary depending on the firearm allegedly used to perpetrate the criminal offense. If the gun was generic or ordinary, the violation is considered a wobbler violation. A misdemeanor is punishable by summary probation, a maximum of 12 months in custody, and a fine of not more than 1,000 U.S. dollars. A felony conviction carries formal probation, a fine not exceeding $10,000, and two, three, or four years incarceration.

But if the assault involved a machine gun, semi-automatic firearm, 0.50 BMG rifle, or assault weapon, the crime becomes a felony. In that case, the felony prison term will increase to four, eight, or twelve years for an assault weapon, 0.50 BMG rifle, or machine gun, and three, six, or nine years for a semi-automatic gun.

Penal Code 417, Brandishing a Gun

Brandishing a firearm or dangerous weapon is another type of gun offense criminalized under PC Section 417. Brandishing means threateningly drawing or exhibiting the weapon or using it during a fight, apart from in legal self-defense. To prove PC 417 violation charges against you, the D.A. must establish that:

  • You exhibited or drew a firearm or deadly weapon in someone else's presence
  • You did that rudely, angrily, or threateningly, or
  • You used the firearm or weapon in a quarrel or fight, and
  • Your act was not for self-defense purposes.

Should you brandish a firearm and inflict severe bodily harm, you could be accused of a more severe crime under PC 417.6. And if the weapon you brandished was an imitation gun, you could be prosecuted under PC 417.4. Note that a weapon need not be pointed at someone to be considered deadly.

Brandishing a firearm is generally a misdemeanor violation carrying a court fine of not more than $1,000 and up to 12 months in jail. Brandishing a gun that can be concealed is also considered a misdemeanor violation if it happens on public property or in a public place. This violation is also a misdemeanor, carrying the same penalties.

Brandishing a gun is still considered a misdemeanor offense, even on school property. However, note that the offense is considered a wobbler if you brandish a gun on a daycare center grounds when it is open for operation. A felony carries a prison term not exceeding three years. You will also face wobbler charges if you brandish a gun in the police or peace officer's presence or the presence of any other law enforcement officer engaged in their duties.

Penal Code 26100, Drive-By-Shooting

Penal Code 26100 makes it criminal for a car owner or driver to allow another individual to bring a firearm into the vehicle or permit another individual to discharge a firearm from within the vehicle. The law also criminalizes either maliciously and willfully firing a firearm from within a motor vehicle or maliciously and willfully shooting at someone else from within a motor vehicle.

Violating PC 26100 can be prosecuted as a straight misdemeanor, straight felony, or wobbler. A conviction for a straight misdemeanor carries a fine not exceeding $1,000 and six months of jail in penalties. A wobbler misdemeanor carries a fine of not more than $1,000 and a jail sentence of one year, while a felony carries a court fine of $10,000 and a prison term not exceeding three years. A straight felony carries no more than $10,000 and a maximum prison sentence of seven years. 

Gun Sentencing Enhancement Law

Gun sentencing enhancement refers to an additional prison term added to the sentences of particular serious felonies involving a gun. This enhancement is described under PC 12022.53, the state's 10-20-life gun enhancement law, otherwise known as the "use a gun and you are done" law. This law dictates the addition of:

  • Ten years to the defendant's sentence if they used a gun
  • Twenty years if they fired the gun
  • Twenty-five years for seriously injuring or killing a person using a gun

This enhancement applies to any of the state's nineteen serious felonies, including PC 187 murder, PC 215 carjacking, PC 207 kidnapping, PC 211 robbery, and PC 261 rape.

There are several critical considerations and nuances when this law is applied. Thus, if you face a sentence enhancement under this law, call a skilled lawyer immediately. The judge may add enough years to your sentence that you may be locked up for a significant part of your life, so developing an aggressive and competent defense strategy is the ideal way to protect your freedom.

Defending Against Gun Offenses

If you are accused of a firearm-related offense, the consequences, as we have seen, can be life-changing. Before presenting yourself in court, you want to fully understand your legal rights and seek guidance from a skilled gun offenses criminal defense attorney. Due to how severe and complex firearm charges are, you need an experienced lawyer to maximize your chances of obtaining the best possible outcome for your case.

Several defenses apply to gun offense charges. The kind of defenses used in your case will depend on the facts surrounding the charges. Common defenses include:

  • Self-defense or defense of someone else
  • Lack of criminal intent
  • Accidental firing of weapon
  • Lack of knowledge of the gun's presence
  • Police entrapment
  • Unlawful search and seizure
  • Prosecutorial misconduct
  • No gun possession or ownership

Your lawyer can successfully argue the defense of self-defense or the defense of others if you used the gun to defend yourself or someone else while reasonably believing you were in immediate danger of suffering severe bodily injury or being killed.

Also, based on the facts of the case, your lawyer may be able to argue that you did know about the gun's presence on your person or in your automobile. For example, it could be that you borrowed the vehicle from your friend and were unaware there was a firearm underneath the car seat.

Your lawyer can also argue the police misconduct defense, especially if the police conducted an illegal search and seizure without a valid search warrant. If the police conducted an illegal search and seizure, the evidence they obtained is unlawful. In this case, your lawyer can file a 1538.5 PC motion to suppress evidence, which may make that evidence inadmissible in court.

Sometimes, your lawyer can successfully negotiate with the D.A. for reduced charges or even prevent the D.A. from filing formal gun offense charges through pre-filing intervention.

Find an Experienced Criminal Defense Lawyer Near Me

Facing felony or misdemeanor charges for a gun offense triggers a lengthy and complex criminal process that can lead to severe consequences if you do not pay attention, even to the slightest details. Thus, hiring a skilled criminal defense lawyer is one of the essential things you must do to obtain the best possible case outcome.

With over four decades of combined experience, we at Monterey Criminal Attorney have in-depth knowledge of California firearm laws and the legal expertise necessary to assist you in building a solid defense. We can also provide legal guidance and advice to help navigate the criminal justice system easily. Schedule a complimentary consultation with one of our expert firearm offense defense lawyers by calling 831-574-1791.