California’s gun laws are one of the sternest in the nation, and every Californian must comply with them. For example, most residents are prohibited from publicly carrying a loaded gun. Breaking this regulation can lead to carrying a loaded firearm charge under PC Section 25850.

Even though gun laws are meant to safeguard California residents from violent crimes, the truth of the matter is that most well-intentioned or innocent individuals are found guilty of carrying firearms outside of their businesses or homes. If you are accused of carrying or having a loaded firearm publicly, you want to hire an expert gun offense attorney as quickly as possible. The consequences for violating gun regulations are more severe, and the quicker your legal counsel can start building your defense, the higher your chances of avoiding a conviction.

At Monterey Criminal Attorney, we boast years of experience defending people charged with gun offenses, including carrying a loaded gun. We aim to protect our clients’ constitutional rights while ensuring they obtain the most favorable outcome. We will thoroughly review the facts of your case to build defense strategies that will help us obtain a dismissal or reduction of your charges. Contact us for a free consultation immediately if you discover you are in trouble with the law for carrying a loaded gun.

The Legal Definition Carrying a Loaded Firearm

Publicly carrying or having a loaded gun is an offense in California. This crime is described under PC 25850. For the prosecution to obtain a conviction under 25850 PC, it must show these facts beyond a reasonable doubt:

  • You carried or had a loaded gun on you, or the gun was in your motor vehicle.
  • You were conscious of the fact that you carried or had a gun, and
  • That happened while you were in public, in an incorporated area or city where firing a gun is against the law.

According to this law, a public area or place refers to any area open for general and common use that is readily accessible to anybody wishing to visit.

Conversely, a firearm is a device used as a weapon from which a missile is discharged via a barrel using explosive force. Common devices considered firearms include revolvers, pistols, rifles, tasers, and shotguns. Pellet and BB guns are not categorized as firearms according to California law. Regarding loaded firearms, a gun is considered loaded when there is an unexpended cartridge in the firing chamber or an unexpended cartridge in a magazine fixed to the gun.

Remember, you must have been aware that the gun was there to be convicted under 25850 PC. However, it is not a must that you were aware your gun was loaded to be convicted.

Exceptions to Prosecution Under PC 25850

There are various exceptions to state laws regarding publicly carrying or possessing a loaded gun. All of these persons are lawfully allowed to carry or have a loaded gun in public:

  • People acting as armored vehicle guards, security guards, or private investigators.
  • People working as federal agents or police officers.
  • People in military.
  • Recreational shooters.
  • People with POST (Peace Officer Standards and Training) certification.
  • People with a concealed carry permit.

California residents may also carry or possess a loaded gun in their business or home if they own the property. But these people are not lawfully permitted to carry a loaded gun unless they need it right away for self-defense.

California Concealed Carry Law

As mentioned above, PC 25850 exempts some individuals from carrying or having a loaded gun. The law permits people with a CCW (carrying a concealed weapon) permit to carry their guns.

A concealed carry permit permits an ordinary Californian to carry or possess a firearm lawfully in public. However, the permit restricts the firearms to pistols, revolvers, or other guns an individual can conceal.

Section 26150 of the Penal Code authorizes the Sheriff's Department to issue CCW permits in California. The department lays down the eligibility criteria according to its policies and procedures and per PC 26150. Hence, the Sheriff's Department can establish who is eligible for a CCW permit.

A gun on you is considered concealed if it is inside a briefcase, purse, bag, pocket of the cloth you are wearing, or anything in your hand that renders the gun hidden. A gun is deemed concealed in an automobile only when placed in the trunk or locked compartment, except in the vehicle’s glove box.

It is worth repeating that the concealed carry permit also has restrictions. Having this permit will not grant you the authority to:

  • Carry illegal weapons—Section 16590 of the Penal Code lists prohibited weapons, such as short-barreled rifles and short-barreled guns. According to the law, short-barreled rifles and shotguns have barrels of not more than eighteen inches or a general length of not more than twenty-six inches.
  • Carry an assault weapon—Section 30600 of the Penal Code prohibits carrying BMG rifles or assault weapons. Assault weapons are listed under PC 30510.
  • Brandish a weapon in violation of 417 PC—brandishing a firearm is permissible in self-defense cases.

Consequences of PC 25850 Violations

A simple 25850 PC violation is deemed a misdemeanor crime. The consequences of a conviction include custody for a maximum of twelve months and a court fine of not more than one thousand U.S. dollars.

Certain aggravating elements can turn a violation under 25850 PC into a wobbler offense or felony. Additionally, you must face a minimum custody period of three months if your criminal record has particular prior convictions.

Violating 25850 PC is deemed a wobbler violation if the accused is not the registered gun owner or was previously found criminally liable for a given misdemeanor violation or drug violation. A wobbler is a violation for which the D.A. can press either misdemeanor or felony charges. If found guilty of the misdemeanor offense of carrying or possessing a loaded gun, you will face the same misdemeanor penalties as outlined above. If convicted of a felony, you will be subject to up to one thousand U.S. dollars and custody for three years.

Carrying or possessing a loaded gun is usually considered a felony if the following elements are true:

  • The defendant has a past gun or felony crime conviction.
  • The involved gun was stolen.
  • The accused person was part of a street gang.
  • The defendant was lawfully banned from owning or possessing a firearm or
  • The accused person was in illegal possession of a gun.

If convicted of a felony under 25850 PC, you will be subject to not more than ten thousand U.S. dollars in court fines and custody in jail for not more than three years.

Mandatory Minimum Jail Term

You must face a mandatory custody period of at least three months if you break the PC 25850 law and have previously been found criminally liable for a felony or other gun offense. You must be subject to between three and six months in jail if the court finds you guilty of carrying a loaded gun when you have a past conviction of:

  • 245a1 PC, assault using a deadly or dangerous weapon.
  • 246 PC, shooting at a lived-on car, house, or dwelling.
  • 417 PC, brandishing a weapon.

An exception to this rule is the unusual case where the interest of justice would be served by granting a probation sentence and suspending the minimum jail term. Apart from the above consequences, the penalties of a conviction for illegally carrying a loaded gun in violation of PC 25850 may include losing your weapon.

Immigration Consequences of Violating 25850 PC

A conviction under 25850 PC may adversely affect your immigration status if you are an immigrant. Per the country's immigration statutes, certain convictions may subject an immigrant to deportation (removal from the U.S.) or being designated as inadmissible.

Firearm violations fall under the category of violations considered deportable. Consequently, based on case facts, convictions under 25850 PC can result in removal and inadmissibility.

Effect on Gun Rights

A guilty verdict for violating 25850 PC may adversely affect a defendant’s firearm rights. According to California gun laws, a person found criminally liable for any felony is barred from possessing, buying, or otherwise acquiring a gun. That means if the case facts make the D.A.  try you for felony carrying of a loaded gun, and you are found criminally liable for the charges, the court will strip you of your right to have or purchase a firearm.

Expunging a Conviction Record

If the court has found you guilty of this offense, you have the right to expunge your conviction record if you complete your probation or jail sentence, whichever the judge would have imposed. You may still have the record expunged if you violate any imposed probation terms. However, that would be at the judge's discretion.

According to 1203.4 PC, expunging a conviction record frees you from almost all disabilities and implications originating from the conviction.

Crimes Related to 25850 PC Violations

Three crimes are related to PC 25850 violations due to their shared elements. These are:

25400 PC, Carrying a Concealed Weapon

Section 25400 of the Penal Code criminalizes carrying a concealed weapon on you or in a motor vehicle. Carrying a concealed firearm is an offense, regardless of whether it is unloaded or loaded. Carrying concealed weapons is considered a misdemeanor when no aggravating factors exist. The consequences of a conviction include up to twelve months in jail and a fine not exceeding one thousand U.S. dollars. Alternatively, the judge could sentence you to summary probation. If sentenced to probation, you will face little or no jail time.

However, when there are aggravating circumstances, violating PC 25400 is considered a wobbler or straight felony. If you are charged with a wobbler offense and are found criminally liable for a misdemeanor, you will be subject to up to twelve months in jail and not more than one thousand U.S. dollars in fines. If the judge convicts you of a felony, you will face:

  • Probation with twelve months in custody or sixteen months, three years, or two years in jail, and
  • Not more than ten thousand U.S. dollars in fines.

A conviction for a straight felony PC 25400 violation carries probation with a maximum of twelve months in jail or sixteen months, three years, or two years in jail and up to ten thousand U.S. dollars.

26350 PC, Openly Carrying or Having an Unloaded Gun Publicly

Openly carrying unloaded guns in public is an offense under Section 26350 of the Penal Code. This law effectively repealed the previous open carry statute in California. Openly carrying an unloaded gun in a public place is deemed a misdemeanor. A conviction carries custody in jail for not more than twelve months, a fine of not more than one thousand U.S. dollars, or both. You can be subjected to both a fine and a jail term if you are not the actual gun owner and you also did carry unexpended, dischargeable ammunition.

PC 26500, The Unlicensed Sale of Guns

PC 26500 is the state law that criminalizes selling, leasing, or transferring guns without a legitimate permit. Selling a gun without a valid license is deemed a misdemeanor. A conviction carries a maximum of six months in jail, a fine not exceeding one thousand U.S. dollars, or both. These consequences are for every gun you sell without a valid permit.

PC 29800(a)(1), Felon In Possession Of A Firearm

Section 29800(a)(1) of the Penal Code prohibits any convicted felon or a person with an active felony warrant from possessing, owning, or purchasing a firearm. Violating this law is deemed a felony punishable by up to three years in custody and a fine of not more than ten thousand U.S. dollars upon conviction. A judge might grant you felony probation rather than prison after considering your case facts.

Defending Against PC 25850 Violation Charges

You can receive help to develop a defense strategy for violating PC 25850 by contacting an attorney for skilled weapon charges. A legal counsel may successfully have your charges dismissed or reduced by arguing various legal defenses. The following defenses are particularly persuasive to prosecutors and juries.

You Never Knew You Had or Were Carrying the Firearm

The judge will only convict you under this statute if you were conscious of the fact that you were carrying or had a firearm on you or it was in your motor vehicle. Thus, your lawyer could gather all the necessary evidence to cast reasonable doubt regarding what you did know. It could be that somebody planted the firearm on you, or your colleague kept the gun in the drawer of your guest room without you knowing.

Consider this example: John stays the night at Barbara's house. He puts his handgun in Barbara's guest closet but later forgets to take it with him when he leaves. Later, police officers raid Barbara's home and find the gun in the closet. In this scenario, Barbara can argue that she never knew of the gun's presence since it was put in the closet without her knowledge.

The Gun Was Unloaded

You are only criminally liable under 25850 PC if the firearm you carried or possessed was loaded. Thus, your lawyer can always argue that, yes, you might have carried or had a gun, but it was unloaded. (Refer to the explanation above regarding when a gun is considered loaded.)

What You Had Was Not a Gun

For this defense to be solid, your lawyer can work with a forensic expert to prove that the device involved did not satisfy the legal meaning of a gun. As mentioned, a device is deemed a gun if it is meant to be utilized as a weapon from which a projectile is discharged through a barrel by an explosion.

You Were Not In a Public Area

Remember that PC 25850 criminalizes openly carrying or having a gun while in a public area or a motor vehicle, so the element of being in a public place is critical. Regarding a public area, 25850 PC carries a precise legal definition. For example, you are permitted to carry or have a weapon at a temporary residence like a campsite or on hunting grounds. Thus, you can challenge the accusations against you by proving that where you were was not a public area but a private place.

Consider this example: Brad is arrested on the porch of his home. A fence, about four feet high, surrounds his home, with entrance only through the gate. The police search Brad's person and find a firearm hidden on his waist. In this case, Brad can argue that he does not possess the gun in public places since his home is surrounded by a fence that provides a barrier and challenge to access.

You Are Excluded From Prosecution

Particular people are exempt from conviction under this law if they are found carrying loaded guns. If you are one of them, it means it is lawful to carry or possess a loaded gun publicly. People exempt from criminal prosecution under this section are:

  • A federal police agency agent, such as the FBI.
  • An honorably retired or active state police or peace officer.
  • A U.S. military member.
  • Recreational shooters.
  • People who have obtained a concealed carry permit.

The Police Conducted an Unlawful Search or Seizure

Among the most prevalent defense strategies lawyers use is demonstrating that law enforcement officers violated a defendant's rights by performing an arrest or search with no probable cause. If this defense applies to your case, your lawyer can request that the judge suppress all the evidence that law enforcement gathered through these unlawful means. Thus, even if you had a loaded gun, your lawyer may succeed in having all the firearm evidence struck out. That could leave the district attorney with a weaker case to proceed with the prosecution.

Consider this example: Dan was riding a motorcycle when a law enforcement officer stopped him. The officer detained him, and when they searched the compartment box, they discovered a gun registered to Dan's friend. In this case, Dan can assert that his detention was unjustified and that searching the motorcycle compartment was done with no search warrant or probable cause.

You Did Not Possess The Gun

Actual possession means you exercised control and dominion over the firearm. But constructive possession is a strong ground for argument. Usually, a gun is discovered in an automobile, residence, or public place within the apparent control of several people. Your lawyer can, therefore, argue that you were not the one who had the gun.

Mere Presence

A mere presence at a crime scene without anything more is not enough for the judge to convict you. Therefore, merely being present where an unlawful gun is present does not make you anything other than a witness.

You Were Carrying The Gun In Self-Defense

Self-defense can also be a valid defense to charges of carrying a loaded firearm. Your lawyer could argue that you were in danger or faced fatal threats from someone that you had to carry a gun around so that should the person act on their threats, you would be able to defend yourself. If so, the judge might not find you guilty of violating PC 25850.

Look at this example: Mellie overhears gunshots while walking down the street. She decides to take cover by falling to the ground. While there, she notices a handgun near her and picks it up for self-defense in case there are more gunshots. An officer sees her with the firearm and immediately places her under arrest for carrying a loaded gun. In her defense, Mellie can argue that she was simply in momentary possession of the gun just to defend herself from significant bodily injury or death.

Find an Expert Gun Offense Attorney Near Me

At Monterey Criminal Attorney, we aim to defend the rights and freedoms of all our clients. That means scrutinizing all the available evidence by the prosecution and developing solid defenses to their charges. We boast firearm charges attorneys with decades of experience representing people accused of gun violations in Monterey and the surrounding areas. Contact us today at 831-574-1791 for a cost-free, confidential consultation and case.