Introduction

If you do not have a Concealed Weapons Permit, a.k.a. Carry Concealed Weapons (CCW) License, California law prohibits you from carrying a loaded firearm in a public place, a public street, or in a motor vehicle. This statute applies whether the firearm is concealed or not.

See Carrying a Loaded Firearm on One’s Person or in a Vehicle (California Penal Code section 25850(a) – misdemeanor: California Penal Code section 25850).

See also Carrying a Concealed Firearm on Your Person or in a Vehicle (California Penal Code section 25400: California Penal Code section 25400).

Penal Code section 25850 codifies this offense. The violation of P.C. § 25850 is a misdemeanor offense, punishable by a jail time of up to one year.

Elements of the Crime

For the prosecutor to charge you with violation of P.C. § 25850, he/she must prove these elements of the offense:

  • You carried a loaded firearm on your person or in your car;
  • You knew that you were carrying a firearm; and
  • You were in a public street or public place in an incorporated area or an area where it is illegal to discharge a firearm.

See Judicial Council of California Criminal Jury Instructions, “Carrying Loaded Firearm -- Pen. Code § 25850(a)”: CALCRIM Number 2530;

CALCRIM Number 2545 (“Carrying Loaded Firearm: Not Registered Owner -- Pen. Code § 25850(c)(6)”): CALCRIM Number 2545; and

CALCRIM Number 2546 (“Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded -- Pen. Code § 25400(c)(6)”): CALCRIM Number 2546.

A public location is defined therein as any place open to general or everyday use to anyone who wishes to go there. The common questions under this statute are what is a firearm and what qualifies as a loaded firearm.

California law defines a firearm as any device designed to be used as a weapon and from which a projectile can be discharged via a barrel by an explosion. Examples of firearms are shotguns, rifles, pistols, revolvers, and tasers. The following do not qualify as firearms: BB guns and pellet guns.

A firearm is loaded if there is a shell or unexpended cartridge in the firing chamber or if the same is in a clip or magazine attached to the firearm.

You can only face charges under this law if you know about the firearm's presence. However, you do not need to have known that the gun was loaded for you to face a conviction.

For example, you could be driving your car without knowing that your loaded firearm is in the glove box. In this case, you cannot face charges under P.C. § 25850.

On the other hand, you could be driving your car with your gun is under the driver’s seat. You know the gun is there, but you assume it is not loaded. The police stop your vehicle, and it turns out that your gun is in fact loaded. In this case, you will face charges under P.C. § 25850 even if you did not know that the gun was loaded.

You might wonder if you can face charges under P.C. § 25850 if the gun you carried was broken. It does not matter whether the weapon is working or not. Provided the firearm is capable of firing and was designed for this purpose, you could nevertheless face charges under P.C. § 25850.

For P.C. § 25850, BB guns or air rifles/pellet guns do not qualify as firearms because they are not fired by combustion and are, instead, powered by CO2.

Having a Loaded Firearm in Your House

California law does not prohibit most persons above 18 years of age from possessing firearms or having a firearm (loaded or unloaded) in their place of residence or temporary residence, such as other private property or even a campsite.

Penalties for Carrying a Loaded Firearm

A simple violation of P.C. § 25850 qualifies as a misdemeanor offense. The penalties for the crime include jail time of up to one year in a county facility and a fine not exceeding $1,000.

See, e.g., Los Angeles County Men’s Central Jail; and

Women's Central Jail Los Angeles County -- Century Regional Detention Facility.

If aggravating factors are present, the violation of P.C. § 25850 could be a “Wobbler” (California Penal Code section 17(b)), which is charged as a misdemeanor or a felony, or an automatic felony. In addition, if you have prior convictions for certain offenses, you must serve a minimum of three months in county jail.

When Carrying a Loaded Firearm is Charged as a Wobbler

The crime of carrying a loaded firearm becomes a wobbler if you are not a registered gun owner and you have a prior conviction for certain offenses like a drug crime.

See “Possession of Firearm by Person Prohibited Due to Conviction - No Stipulation to Conviction -- Pen. Code §§ 29800, 29805, 29820, 29900”: CALCRIM Number 2510;

“Possession of Firearm by Person Prohibited by Court Order -- Pen. Code §§ 29815, 29825”: CALCRIM Number 2512; and
“Possession of Firearm by Person Addicted to a Narcotic Drug -- Pen. Code § 29800”: CALCRIM Number 2513.

Again, the prosecutor can charge a wobbler offense as a felony or a misdemeanor. If the crime is a felony, the potential penalties are:

  • A jail time not exceeding three years; and
  • A fine not exceeding $1,000.

Automatic Felonies

Carrying a loaded firearm can be an automatic felony if:

  • You have a previous firearm or felony conviction;
  • The firearm you possessed was stolen;
  • You are a member of a criminal street gun;
  • You did not possess the firearm lawfully;
  • You were legally prohibited from possession or ownership of a firearm.

See, e.g., Prior Offenses Involving Violent Gun Use (California Penal Code section 23515);

Possession of an Automatic Weapon (submachine gun) (California Penal Code section 30600); and

Possession of an Assault Weapon (California Penal Code section 30605).

If the crime is charged as a felony, the potential penalties include the following:

  • Jail time of not more than three years in a county jail; and
  • A fine not exceeding $10,000.

The Three-Month Mandatory Jail Time

You will serve a mandatory three-month jail time in county jail if:

  • You violate the California P.C. § 25850; and
  • You have a previous conviction for certain crimes.

The crimes include:

This three-month compulsory jail time is commonly referred to as the three-month mandatory minimum.

The Immigration Consequences for Violating Penal Code section 25850

A conviction for carrying a loaded firearm could also have negative immigration consequences. A conviction for certain crimes – particularly those classified as “crimes of moral turpitude” -- could lead to some consequences under the United States immigration law.

If you are a non-citizen, you could therefore be deported for such a conviction. You could also be marked as inadmissible in the United States. Firearm offenses are among the deportable crimes. Therefore, violating P.C. § 25850 could lead to deportation alongside other immigration consequences.

Whether a Conviction Under Penal Code section 25850 Will Affect Your Gun Rights

A conviction for carrying a loaded firearm could have an adverse effect on your gun rights. According to California law, a convicted felon is not allowed to acquire or possess a gun. Therefore, if the prosecutor charges the violation of P.C. § 25850 as a felony and you are convicted of the same, you will be prohibited from owning or possessing a gun.

Expungement of Your Criminal Conviction (California Penal Code section 1203.4)

If you are convicted of carrying a loaded firearm, you could be entitled to an expungement of your criminal conviction if:

  • You complete your probation; and/or
  • You complete the jail term, whichever is applicable.

If you violate the probation terms, you could still have your conviction expunged. However, this will depend on the judge's discretion, who likely deny your request. The expungement of a criminal conviction, outlined under P.C. § 1203.4, will release you from all the penalties that could arise from your criminal conviction.

Statutory Exemptions to P.C. § 25850

Several exemptions are available under P.C. § 25850. You will not face charges for carrying a loaded firearm in public if you are:

  • A peace officer like a federal agent, police, probation, or corrections officer;
  • Active military personnel;
  • A peace officer who is honorably retired;
  • Zookeepers;
  • Animal control persons;
  • Private investigators;
  • Harbor police;
  • Lawful business owners in their places of business;
  • Federal agents or law enforcement officers;
  • A money transporter or authorized security guard;
  • You were legally carrying a firearm for the purpose of visiting a firing range or to go hunting, and you had kept the gun in a locked container;
  • You have a concealed weapon permit. Concealed Weapon Permit, a.k.a. Carrying Concealed Weapon (CCW) License: Carrying Concealed Weapon (CCW) License.

Defenses to Carrying a Loaded Firearm Charge

Several defenses are available to the charges of carrying a loaded firearm in California. They include:

Illegal Search and Seizure

At times, the police could discover your firearm through an illegal search. For example, this would happen if they search without a valid warrant, probable cause, or lack of exigent circumstances.

If the law enforcers obtained evidence via an unlawful or unreasonable search and seizure, then the judge can exclude that evidence from your criminal case. As a result, your charges of carrying a loaded firearm could be dismissed or at least reduced.

See Motion to Dismiss (California Penal Code section 995: California Penal Code section 995);

Motion to Suppress Evidence
(California Penal Code section 1538.5: California Penal Code section 1538.5); and

Fourth Amendment to the U.S. Constitution: Fourth Amendment to the U.S. Constitution.

You Were Carrying the Loaded Firearm for Self-Defense

According to California’s self-defense statute, you can carry a loaded gun if you think you or people close to you are facing imminent harm. Therefore, you can argue that it was necessary to carry a firearm in response to this imminent harm.

See Possession of Firearm by Person Prohibited by Statute: Self-Defense”: CALCRIM Number 2514; and

“Right to Self-Defense or Defense of Another -- Non-Homicide”: CALCRIM Number 3470.

You Were Not Aware that You Were Carrying a Firearm

Under California law, you cannot be guilty of violating Penal Code section 25850 if you did not know that you were carrying a loaded firearm. You would obviously use this defense if you were not carrying the gun on your person (or in your vehicle).

For example, a police officer checks your backpack and finds a loaded firearm in the backpack's front zippered pocket. You realize that you accidentally carried your father's backpack. In this case, you cannot be guilty of violating Penal Code section 25850.

You Were Not Carrying the Firearm in a Public Place

A public place is any place accessible to the public and open to general use. You can't be guilty of violating Penal Code section 25850 if you carry the firearm in a private area. For example, the police can arrest you in your home's parking area, and upon checking, they find you with a loaded firearm. Your home parking area is not a public street in an incorporated city. In this case, you are not guilty of violating Penal Code section 25850.

The Firearm was not Loaded

According to Penal Code § 25850, you cannot be guilty of this statute if you carry a firearm that is not loaded. However, if the police discover an unloaded gun on your person or in your vehicle, you could be guilty of violating Penal Code § 26350, which prohibits carrying a firearm, even if the gun is not loaded, in a public place.

See Carrying an Exposed and Unloaded Handgun in a Public Place or in a Vehicle (California Penal Code section 26350: California Penal Code section 26350);

Brandishing Firearm: Misdemeanor - Public Place (California Penal Code section 417(a)(2)(A): California Penal Code section 417(a)(2)(A)); and

“Brandishing Firearm: Misdemeanor - Public Place -- Pen. Code § 417(a)(2)(A)”: CALCRIM Number 984.

You will also not face the charge if you were carrying a gun and ammunition in different parts of your bag or vehicle. Since the firearm is not in a firing position, you are not guilty of carrying a loaded gun.

You Had No Knowledge that You Were Carrying a Loaded Firearm

At times, you could be carrying a firearm without knowing it is loaded. For example, this could happen if someone else loads your firearm and places it in your vehicle. In this case, you could allege a “mistake of fact” defense in that you genuinely and reasonably believed that the firearm was not loaded.

See “Mistake of Fact”: CALCRIM Number 3406.

If this argument convinces the judge, you could still face charges of carrying an unloaded firearm in public according to Penal Code § 26350.

Exempt From the Law

You are exempt from facing criminal charges under Penal Code § 25850 if you fall under the following protected category:

  • Private investigators and security guards;
  • Federal agents and peace officers;
  • Concealed weapons permit holder;
  • Members of the military;
  • Legitimate hunting activities;
  • P.O.S.T. Professional Certification.

According to Penal Code section 26015 and Penal Code § 26030, private investigators and security guards are not prohibited from carrying a loaded firearm, provided specific terms are adhered to.

See Carrying Loaded Firearm Exemption for Armored Car Guard (California Penal Code section 26015); and

Carrying Loaded Firearm Exemption for Licensed Private Investigator (California Penal Code section 26030).

In addition, a California active or honorably retired peace officer is exempt from charges of carrying a loaded firearm according to Penal Code § 25900.

See Carrying Loaded Firearm Exemption for Active or Honorably Retired Peace Officer (California Penal Code section 25900: California Penal Code section 25900).

You are exempted from the charges for carrying a loaded firearm if you have a license to carry a concealed weapon. Similarly, military members carrying out their duties are exempt from charges of carrying a loaded firearm under Penal Code § 26000.

See Carrying Loaded Firearm Exemption for Active Military Personnel (California Penal Code section 26000).

In California, you are also allowed to carry a loaded gun while you hunt at permissible locations, according to P.C. § 26005.

See Carrying Loaded Firearm Exemption for Licensed Hunters (California Penal Code section 26005).

Additionally, according to P.C. § 26035, if you are a zookeeper, harbor control officer, or animal control police, you are exempted from the charges of carrying a loaded firearm.

See Carrying Loaded Firearm Exemption for Zookeeper, Harbor Control Officer, or Animal Control Officers (California Penal Code section 26035).

However, you are only eligible for this exemption if you have completed a regular course in firearm training approved by the Commission on Peace Officer Standards of Training (P.O.S.T.).

However, you must carry your firearm in a locked box to and from these locations.

Related Offenses

In California, several offenses are similar to the crime of carrying a loaded firearm. They include:

Carrying a Concealed Weapon (California Penal Code section 25400)

You will face the charges in California under P.C. § 25400, carrying a concealed firearm if you commit certain acts with a revolver, pistol, or any other firearm capable of being hidden upon a person (or in your vehicle). Under the law, the prohibited acts include:

  • Carrying a concealed weapon in any vehicle in which you are an occupant;
  • Carrying a firearm concealed within a vehicle under your direction or control; and
  • Carrying a firearm concealed upon your person.

See also Carrying Concealed Weapon (CCW) License;

“Carrying Concealed Firearm on Person” -- Pen. Code § 25400(a)(2)”: CALCRIM Number 2520; and
“Carrying Concealed Firearm within Vehicle -- Pen. Code § 25400(a)(1)”: CALCRIM Number 2521.

The prosecutor could charge a violation of P.C. § 25400 as a misdemeanor or a felony.

See “Wobbler” (California Penal Code section 17(b)).

If the prosecutor charges you with a misdemeanor, you could face a fine of $1,000, a jail term of one year in county jail, or summary probation.

If the prosecutor charges you with a felony, the potential penalties include a fine of $10,000, probation with up to one year in county jail, or a jail term of 16 months, two years, or three years in county jail.

See, e.g., Los Angeles County Men’s Central Jail ; and

Women's Central Jail Los Angeles County -- Century Regional Detention Facility.

However, you can also raise legal defenses against your P.C. § 25400 charges. Some of the defenses you can use include:

  • Police misconduct;
  • You carried the weapon in self-defense;
  • The police discovered the firearm through an illegal search and seizure;
  • The gun was within your residence or place of business;
  • You have a license to carry a concealed weapon;
  • The gun was in the trunk or a locked container in your vehicle;
  • You did not know you were carrying the firearm.

Openly Carrying an Unloaded Firearm in Public (California Penal Code section 26350)

It is a crime under P.C. § 26350 of California law for any person to carry an exposed and unloaded firearm in a public place or a vehicle. When the prosecutor accuses you of violating Penal Code 26350, he/she must prove the following elements:

  • You carried an exposed and unloaded handgun;
  • You carried the gun on your person or inside a vehicle; and
  • You did the above while in a public place or on a public street.

See also “Carrying Concealed Firearm: Caused to Be Carried within Vehicle -- Pen. Code § 25400(a)(3)”: CALCRIM Number 2522.

The following people are exempt from this statute in California (an incomplete list):

  • People engaged in the rehearsal and production of movies and other forms of entertainment;
  • People with a valid permit to carry a firearm;
  • Employees of gun repair shops and pawn shops;
  • Police officers;
  • Employees of common carriers;
  • Hunters;
  • People practicing at target ranges; and
  • People at gun shows.

See, e.g., Carrying Loaded Firearm Exemption for Active or Honorably Retired Peace Officer (California Penal Code section 25900: California Penal Code section 25900);

Carrying Loaded Firearm Exemption for Active Military Personnel (California Penal Code section 26000: California Penal Code section 26000); and

Carrying Loaded Firearm Exemption for Licensed Hunters (California Penal Code section 26005: California Penal Code section 26005).

The offense of carrying an unloaded firearm openly in public is typically charged as a misdemeanor in California. You could face the following penalties:

  • A fine that does not exceed $1,000; and/or
  • A jail term that does not exceed one year in a county jail.

You could also face both a fine and a jail term if:

  • You also carry unexpended, dischargeable ammunition; or
  • You are not the lawful owner of the gun.

See “Carrying Loaded Firearm: Not Registered Owner -- Pen. Code § 25850(c)(6)”: CALCRIM Number 2545; and

“Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded -- Pen. Code § 25400(c)(6)”: CALCRIM Number 2546.

Several legal strategies are available to contest the charges under P.C. § 26350. They include:

  • Unlawful search and seizure;
  • Exempt from the law; and
  • Not in a public place.

Los Angeles Criminal Defense Lawyer Ninaz Saffari