(California Penal Code 245(a)(2) P.C., 417 P.C., 16590 P.C., 25400 P.C., 25850 P.C.,
25850(c)(6) P.C., 26100 P.C., 29800 P.C., 30600 P.C., et seq.)
Under both California and federal law, you can be prosecuted for illegally using, possessing, manufacturing, altering, distributing, selling, or transporting guns, with charges spanning all manner of misdemeanors and felonies. In fact, aside from New York, California arguably has the most stringent (and complicated) gun laws of any state in the country.
Gun-law violations can be as relatively minor as failing to properly secure ammunition while legally transporting properly registered firearms (say, to a firing range or a gun show for sale), all the way to up to severe crimes like supplying street gangs with fully-automatic, large-caliber military-grade machine guns. Even the brandishing of a fake gun can result in felony charges (see below).
Many of these criminal code violations can be prosecuted as misdemeanors or felonies, left entirely to the discretion of the District Attorney.
Also, no other statutory violations instantly trigger severe sentencing enhancements like gun charges. These can range from a simple felon-in-possession charge (29800 P.C.) to utilizing a firearm in the commission of a violent crime like a home invasion, for example.
Altering firearms, such as sawing off shotguns or converting semi-automatics to fully automatics, or adding prohibited attachments, such as a silencer or suppressor, or even using banned ammunition like armor-piercing rounds will add even more time to your sentence during the commission of other crimes.
And, of course, certain violations invoke federal jurisdiction, such as shipping firearms through the mail or via interstate transportation, which can result in harsh mandatory minimum sentences. In other words, some crimes, such as a felon in possession, can be tried as either a state or federal offense.
You can also face serious time in jail or prison even if you never even touched the subject firearm, such as hiring a strawman buyer to obtain a gun for you or riding in a car with another occupant who shoots a pedestrian (26100 P.C.).
Keep in mind that gun laws in California – both federal and state -- are constantly changing and evolving; therefore, it you should have an attorney who is up-to-date on the latest developments.
The same goes for certain types of prohibited non-firearm weapons, though most of those charges involve felonies. The most common crime is probably assault with a deadly weapon (not a gun) under 245(a)(2) P.C.
California also has some of the strictest laws in the USA in regard to what are termed “generally prohibited weapons” (16590 P.C.). If you can imagine any type of exotic non-firearm weapon, you can be assured that possessing, manufacturing, or selling it is a felony. These include most potentially deadly martial arts weapons – so-called “nunchucks”, throwing stars, samurai swords, and the like, as well as an assortment of other implements like belt-buckle blades, butterfly knives, switch blades, brass knuckles, saps, blackjacks, slingshots, and crossbows. These are almost always charged as felonies, but could ultimately result in a downgrade to a misdemeanor if the prosecution is amenable.
Finally, one of the most increasingly prevalent firearms offenses in LA County is possession of a so-called “ghost gun” or “kit gun” which is manufactured from separate parts ordered online. These guns do not come with serial numbers, are not registered with law enforcement databases as required by law, and are therefore untraceable. (Kit-gun components can also be purchased at gun shows.) According to a spokesperson for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), one out of every six guns seized in Southern California is now a ghost gun. In 2018, forty-five such unserialized firearms, including semi-automatic assault rifles, were seized in Hollywood following a six-month undercover police investigation. Those guns were allegedly assembled by a local street gang.
People Prohibited from Having Anything to Do with Firearms
Every year the California Department of Justice’s Bureau of Firearms publishes a list of people who are prohibited from having guns. You can find this list of “Firearms Prohibiting Categories” at https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/prohibcatmisd.pdf. If you find yourself to be in one of these categories and are arrested with a firearm, you will likely be charged with a felony. These include the following:
– convicted felons;
– any persons ordered to avoid guns as a result of probation, parole, a family law order, or other legal orders set forth in Penal Code section 29815(a) & (b);
– any person found by a court of law to be addicted to narcotics;
– any person found by a court of law to be a danger to him/herself or others because of mental illness;
– registered sex offenders;
– anyone dishonorable discharged from the military;
– illegal aliens; and
– fugitives from justice.
In addition, anyone convicted of the following misdemeanors will typically lose their firearms rights for at least ten years:
– threatening public officials or staff (Pen. Code sections 71 P.C. & 76 P.C.);
– threatening crime victims, witnesses to crimes, or informants (Pen. Code sections 136.1 P.C. & 140 P.C.);
– anyone convicted of assault (Pen. Code sections 240 P.C. & 241 P.C.), battery (Pen. Code sections 242 P.C. & 243 P.C.), sexual battery (Pen. Code section 243.4 P.C.), and assault with a deadly weapon (Pen. Code sections 245 P.C. & 245.5 P.C.);
– anyone convicted of domestic violence (Pen. Code section 273.5 – lifetime ban), making criminal threats (Pen. Code section 422), or stalking (Pen. Code section 646.9); and
– anyone convicted of possessing ammunition intended to penetrate armor (Pen. Code section 30315).
If you’re not on that list, then you should have nothing to worry about in regard to possessing a firearm so long as it’s legally registered to you. That is, of course, assuming you don’t take it into the wrong place. For example, in mid- September 10, 2018, actor David Henrie (the Disney Channel’s Wizards of Waverly Place) was arrested at LAX for carrying a loaded semi-automatic nine-millimeter pistol. And despite the fact that the gun was legally registered to him, Henrie was nevertheless charged (on September 26, 2018) with the following misdemeanors: carrying a loaded firearm, carrying a concealed firearm, and carrying a firearm in a restricted area. He faces up to twelve months in jail if convicted of any of these three charges.
Examples of Felony Firearms Offenses
– On December 10, 2019, Antioch resident David Cook was sentenced to three years and five months in federal prison for unlawful possession of a firearm. According to federal prosecutors, Cook had previously admitted to intentionally shooting the victim five times, almost causing the victim to bleed to death, but the victim nevertheless refused to cooperate with state law enforcement investigators. Seven months earlier, Cook had been charged by federal authorities for being a felon in possession of a firearm. Specifically, since 2008, Cook had reportedly racked up five previous felonies. Although at least one independent eyewitness allegedly saw the shooting and was willing to testify against Cook, the U.S. Attorney’s Office declined to prosecute him for attempted murder because he had a viable claim of self-defense based on the claim fact that the victim had been an enforcer sent to attack him on orders from a notorious nationwide prison gang because Cook had been complaining about the quality of heroin he had been purchasing from the gang’s out-of-prison dealers. The fact that he had previously filed a police complaint alleging that the victim had previously attacked him bolstered this defense. Nevertheless, Cook was fortunate to receive such a relatively moderate sentence in light of the eyewitness’ ability and willingness to testify against him.
– In mid-December 2019, LA County Sheriff’s deputies in Santa Clarita arrested off-duty LAPD traffic officer Georgeta Buruiana for allegedly waving a fake gun during a road rage incident in a local residential neighborhood. Specifically, Buruiana was facing a single felony count of brandishing a firearm replica. According to an LASD spokesman, Buruiana had gotten into some type of dispute with the other motorist, then waved the fake gun at the victim in a threatening manner. If convicted, the defendant can be sentenced to a maximum of three years in prison.
– In mid-April 2016, San Fernando Valley resident and actor Brandon Jones (ABC’s Pretty Little Liars) allegedly aimed a handgun and waved a knife at a neighbor following a dispute over a garbage can, and was subsequently arrested for felony assault with a firearm, misdemeanor exhibition of a deadly weapon (the knife), and misdemeanor exhibition of a concealable firearm in public. Thus, at that time, he was facing a minimum five-year prison sentence. However, the handgun turned out to be legally registered to Jones, who had no previous criminal record. He and his girlfriend also claimed that he had been acting in self-defense against the neighbor, and that Jones merely held the pistol pointed downwards at his side as opposed to pointing it at the neighbor. In late August 2017, he worked out a no-contest plea to a single misdemeanor for assault with a firearm, and received a sentence of six months in county jail, thirty-six months of formal probation, one month of volunteer work, and more than two dozen counseling sessions.
Examples of Misdemeanor Firearms Offenses
– In early November 2006, comedian Katt Williams (a.k.a. Micah S. Williams) was arrested by TSA security guards at LAX after an X-ray scanner revealed what police claimed was a stolen unloaded pistol. He was handed off to LAPD officers who booked him on a felony charge of illegal possession of a firearm. He eventually pled down to a misdemeanor for carrying a concealed weapon and received no jail time (aside from the three days he had spent in the downtown Twin Towers facility after the initial arrest) with three years of probation.
– On September 11, 2006, actor Robert Downey Junior (Iron Man, The Avengers) was pulled over late at night in Malibu on suspicion of driving while intoxicated. When a sheriff’s deputy searched his car, they found, among other things, an unloaded revolver. For that particular item, he was charged with misdemeanor possession of a concealed firearm. He was later sentenced to a jail term for that specific misdemeanor.
– In mid-October 2013, Santa Clarita Valley resident and LASD deputy Mr. Sung J. Pak allegedly fired his service weapon into the air to frighten off a group of kids playing “ding-dong-ditch” (i.e., ringing his doorbell and running away). As a result, Pak was charged with misdemeanor discharging of a firearm with gross negligence and was apparently forced or at least encouraged to retire from LASD, which he did.
Examples of Felony Weapons Offenses
– In mid-January 2020, Chicago rapper Victor “Vic” Mensa was allegedly riding a Harley Davidson chopper when he made an illegal u-turn and was stopped by police in the Valley, who found brass knuckles in his pocket. He was apparently unaware that possession of brass knuckles is a felony in California, and that is precisely what he was arrested for and charged with. If convicted, he could end up serving more than a year in county jail.
– Between February 2019 and January 2020, according to Monterey County law enforcement authorities, Charles K. Lafferty struck almost 70 vehicles on several freeways with a slingshot and marbles while driving his own vehicle in the opposite lanes, thereby injuring four adults and one minor (although none seriously). On January 23, 2020 (following a twelve-month investigation), California Highway Patrol detectives finally arrested Lafferty following the execution of search warrants on his home, as well as another residence, where evidence of the attacks was allegedly found. He was charged by the Monterey County DA’s Office with ten felony counts for ADW and ten felony counts of hurling an object at a moving vehicle. Four days later, the DA’s Office charged him with an additional 64 counts of felony ADW, as well as additional related charges.
– In late August 2017, Stockton (the Central Valley) PD arrested two men, Juan Hernandez and Fidel Torres, as well as a juvenile boy (age seventeen) for allegedly committing numerous assaults with paint-ball guns. The three suspects were all charged with felony ADW, felony weapon brandishing, and felony conspiracy. Police claimed they were initially called by a female victim who reported that the three suspects had struck her with paint-ball pellets in a drive-by shooting from a passing vehicle, thereby injuring her. Police eventually saw the vehicle and pulled it over, allegedly finding several paint-ball guns inside. Fortunately, none of the victims were seriously injured.
– In early October 2019, according to Costa Mesa (Orange County) PD, Fullerton resident Passion S. Coleman entered an Italian restaurant where she had previously worked, threatened her former co-workers, and used a baseball bat to destroy a large-screen television, dishes, and glassware, causing $5,000 worth of damage, and forcing the restaurant to close for the night. She was arrested and charged with numerous felonies and misdemeanors. Three months later, she pled guilty to the following felonies: ADW (the baseball bat), making criminal threats, vandalism, and related charges. She also pled guilty to misdemeanor weapon brandishing, assault, battery, and related misdemeanors. The case was processed through the Orange County Superior Court system’s so-called “drug court”, which resulted in reduced sentencing terms, including 180 days in county jail and mandatory drug treatment.
Examples of Misdemeanor Weapons Offenses
– In late October 2019, LAPD officers arrested Trump supporter and local resident David N. Dempsey for allegedly spraying bear repellent at a group of anti-Trump protestors marching on the Santa Monica Pier. Numerous people allegedly suffered relatively minor injuries – ranging from exposure to the bear repellent itself to trampling injuries resulting from people attempting to flee the spray. According to police, at least one witness filmed the incident. Dempsey was charged with two misdemeanors for assault with a prohibited weapon and assault with a caustic chemical. In addition, Dempsey faced an alleged parole violation based on the fact that as someone with a reported prior felony conviction, he was prohibited from carrying, much using, any sort of toxic aerosol spray.
– In late January 2020, Culver City PD arrested a seventeen-year-old boy for allegedly posting on social media an implied mass-shooting threat concerning a local public high school, which the boy attended. Earlier that day, CCPD allegedly discovered a BB-gun rifle stashed in his locker at the school. Specifically, after meeting with the boy at his home in the presence of a parent, CCPD arrested the boy for misdemeanor charge for possessing a fake gun at a school.
– In early April 2019, LAPD arrested half-a-dozen female deputy probation officers (PO’s) for allegedly abusing their positions at the juvenile prison facility at Los Padrinos in Downey by pepper-spraying almost half-a-dozen underage female inmates over a four-month period the prior year. The defendants were also accused of withholding medical treatment for an unreasonable period of time after the assaults. The PO’s were to be tried in two separate cases by the DA’s Office, with the following PO’s being charged with various felonies and misdemeanors, including felony assault by a PO and misdemeanor child abuse: Maria A. Guerrero, LaCour Harrison, Karnesha Marshall, Claudette Reynolds, Janeth Vilchez, and Marlene R. Wilson, . If convicted, each PO faced maximum sentences ranging from six months in county jail to almost nine years in prison.
Attacking a Charge for Possession of an Unlicensed Firearm
The primary element required for a conviction on this charge is that you weren’t the registered owner as identified in the U.S. Dept. of Justice’s national database. If you actually were (say, under a different name), then this would defeat the entire case. Otherwise, assuming the facts and evidence support your defense, you could argue that...
The vehicle or property in which the gun was found was not, in fact, yours (that is, you didn’t own or possess the vehicle at the time the firearm was discovered).
However, if it was actually found on your person, you may still be able to validly assert Constitutional defenses (e.g., illegal search due to insufficient warrant or lack of probable cause).
Alternatively, you may be able to counter the DA’s allegation that you knew you were carrying the firearm, or that you were otherwise in possession of it, which is a necessary element of this crime. This could occur if a friend or associate stashed his pistol (revolver, semi-auto, submachine gun) or long gun (rifle, shotgun, machine gun) in your vehicle or residence without your knowledge.
In uncommon, though certainly not unheard of, cases, police have been known to plant sidearms on individuals in order to frame them, as proven by the LAPD’s Rampart Division scandal in the ‘90s. Typically, officers or sheriff’s deputies that engage in this type of conduct have a personnel file filled with similar allegations of official wrongdoing, which can be uncovered by what is called a Pitchess motion.
You might also be able to argue that at the time of your arrest, you were on private property. (This charge requires that you be in a public space when discovered to be in possession.)
As with certain alleged crimes of violence, self-defense is also a legitimate defense. In that scenario, you must establish that you or someone else in your immediate vicinity were in reasonable fear for your safety from a threatening third party. The threat must be both imminent and concern serious injury or death.
Finally, in a variation of this charge, the firearm must be loaded so you might be able to challenge that contention with contrary evidence.
Sentencing for Possession of an Unlicensed Firearm
If your defense(s) is/are unsuccessful, the following terms will apply, depending on whether you end up with a felony or misdemeanor on your record:
Sixteen, twenty-four, or thirty-six months in a California Department of Corrections penal institution (felony);
Up to three hundred and sixty-five days (365) in a county jail (misdemeanor);
If there’s no state prison sentence, you will receive either three or five years’ probation (typically misdemeanor and felony, respectively);
Permanent or temporary ban on owning, possessing, or using firearms; and
Possible counseling, community service, fines, costs, etc.
Sources: California Pen. Code section 25850(c)(6) P.C.; CALCRIM # 2545.
Attacking a Non-Firearm Deadly-Weapon Charge
Not dissimilarly, cases involving prohibited deadly weapons come down to two elements: whether you actually possessed, manufactured, or sold the subject weapon; and whether you were aware you were doing so. Accordingly, the same type of defenses that apply to firearms possession and related charges apply here.
In addition, unique defenses sometimes apply. For example, you could argue that the shurikens (Chinese throwing stars) you were arrested with had intentionally-dulled edges for use in your kung fu classes, or that the nunchakus (Chinese batons linked by a chain) were actually made of hard rubber and, therefore, were not dangerous, much less deadly. Or you might argue that the samurai sword found in your home was in a display case and, thus, posed no threat to others.
Sources: California Pen. Code section 16590 P.C.; CALCRIM # 2500.
Sentencing for Prohibited Weapons Convictions
Sentences can often be significantly stronger than those involving firearms based on the fact that at least with most guns, non-lethal use can be made, such as target practice, hunting, etc. But no such use can be made of these weapons – at least in the eyes of the prosecutor.
So a felony conviction can result in a prison incarceration period of sixteen, thirty-six, or forty-eight months. By contrast, a misdemeanor will get you either no time or up to twelve months in jail.
On a non-prison felony, you should plan of getting five years’ probation, while a misdemeanor (jail or no jail) will usually get you a three-year probation term.
And even though this conviction doesn’t involve guns, a felony will get you a permanent ban on owing, possessing, or using firearms. A misdemeanor will generally result in a years’-long ban.
A felony will also get you a ten-thousand-dollar fine, and a misdemeanor one thousand.
Source: California Pen. Code section 16590 P.C.
Our Approach to Defending Firearms and Weapons Cases
For certain alleged weapons that are not inherently lethal, we might put on the stand at trial an expert witness who could testify (if appropriate) that the item was being used in a manner in which it was intended at the time of the arrest or, alternatively or in conjunction therewith, was not actually dangerous or deadly.
A Sample of Our Past Firearms & Weapons Cases:
Multiple ADW charges/strikes – semi-auto firearm – not guilty on all counts after jury trial
People v. G.S.: Our client had been charged with several counts of assault with a deadly weapon with both being charged as strikes. He was therefore looking at almost three decades in prison. According to the DA’s Office, our client had been illegally using a semi-auto weapon. From day one, our client was adamant about his innocence and, therefore, was unwilling to take any deal whatsoever, including for a no-jail time plea. Since the DA was unwilling to dismiss all charges, we went forward with the jury trial. We repeatedly impeached each and every eyewitness called by the prosecutor – both by their own prior contradictory statements to police, detectives, and even to the prosecutors themselves, as well by the testimony of our own eyewitnesses. We also put on a firearms forensics expert whose testimony that the firearm was missing our client’s fingerprints was uncontradicted. As a result, the jury returned with its verdict: total acquittal on all charges.