Introduction

California weapon laws are notoriously strict and regulate the purchase and use of firearms, as well as ammunition. Most individuals (adults) can legally own or possess a firearm in this state if they have no criminal record, or history of psychiatric problems or drug addiction.

However, gun laws are complex, and if you do not properly understand the regulations and restrictions, it is easy to unwittingly break the law and face criminal charges for a firearm offense. Although some weapon offenses are misdemeanors, many are felony crimes.

See, e.g.:

Brandishing Firearm or Deadly Weapon: Misdemeanor (California Penal Code section 417 (a)(1) & (2));

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

Brandishing Firearm or Deadly Weapon: Felony (California Penal Code section 417(b)).

Common firearm offenses with which you could be charged include the following:

A conviction for a serious firearm offense may involve a lengthy prison sentence and a felony record that will affect your life long after serving any prison term. See, e.g.:

Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022);

Personal Use of a Firearm During a Felony (California Penal Code section 12022.5); and

Personal Use of a Firearm (California Penal Code section 12022.53(b)).

What are Firearm and Weapon Offenses?

With increased crime rates, California has imposed strict laws to control firearms and weapons. Standard firearm and weapon offenses in California include:

Carrying a Loaded Firearm (California Penal Code section 25850(a))

Carrying a loaded gun in public violates Penal Code § 25850. A public place is defined as many location frequented by people, including streets, parks, and hotels. Under this statute, a firearm is any device intended to be operated as a weapon that can expel a lethal projectile.

When you are spotted with a gun, the officer on scene will obviously scrutinize it to determine whether it is loaded. P.C. § 25850 defines the following circumstances under which a firearm is considered to be loaded:

  • The gun contains an unexpended shell or cartridge; and
  • The firearm contains a powder range or bullets.

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

Before you are convicted for carrying a loaded firearm, the prosecutor must establish the following elements:

  • You had a gun at the time of the arrest;
  • You knew that you had a loaded gun in your possession; and
  • You carried the firearm in a public space.

Carrying a loaded firearm is a “Wobbler” (California Penal Code section 17(b)) -- an offense that can be charged as a felony or misdemeanor, depending on the circumstances of your case.

As a first-time offender, a conviction under P.C. § 25850 will be only a misdemeanor punishable by a year in jail and a $1,000 fine.  If you have a prior conviction for a firearm or drug-related crime, you risk a felony conviction.

See “Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness -- Pen. Code §§ 25400(c)(4), 25850(c)(4)”: CALCRIM Number 2544.

If you face a felony conviction for carrying a loaded firearm, you will face a sentence of sixteen months, two years, or three years in state prison.

Carrying a Concealed Firearm (California Penal Code section 25400)

P.C. § 25400 makes it a crime to carry a concealed firearm in California, even if you have no criminal record (unlike states such as Florida, which have “open carry” and even concealed firearms laws).

The elements that must be proven to obtain a conviction under this statute include:

  • You concealed a firearm. Under C. § 25400, concealing a firearm does not only mean that you have the gun or pistol on you. You can also be arrested and convicted for having a gun in your vehicle. Additionally, the prosecutor must prove that the firearm was hidden. Carrying a gun in plain view doesn't create culpability under this statute; and
  • You knew that the gun was in your possession. California law requires the prosecutor to establish your knowledge of the weapon's presence when prosecuting firearm offenses. This helps avoid convictions of individuals who know nothing about weapons.

See “Carrying Concealed Firearm on Person” -- Pen. Code § 25400(a)(2)”: CALCRIM Number 2520;
“Carrying Concealed Firearm within Vehicle -- Pen. Code § 25400(a)(1)”: CALCRIM Number 2521: and
“Carrying Concealed Firearm: Caused to Be Carried within Vehicle -- Pen. Code § 25400(a)(3)”: CALCRIM Number 2522.

Some individuals are exempt from the laws on carrying a concealed firearm, including:

  • Active and honorably retired peace officers;
  • Licensed weapon dealers;
  • Bank messengers and guards;
  • Licensed hunters or fishers; and
  • U.S. military members.

The prosecution will file misdemeanor charges for having a concealed firearm when there are no aggravating factors.  A conviction under this statute will attract a maximum one-year jail sentence. Sometimes, however, the court will sentence you to informal probation instead of a jail sentence for misdemeanor carrying a concealed firearm.

Some factors that the court may consider when sentencing you include your criminal history and any cooperation on your part. If these aggravating factors are present in your case, you could face a felony conviction if:

  • You have a prior felony conviction for a firearm offense in California;
  • You knew that the firearm in question was stolen;
  • You are an active member of a street gang; or
  • You are prohibited from owning or using a firearm under Penal Code section 29800.

See, e.g., Gang Enhancement (California Penal Code 186.22);

“Carrying Firearm: Specified Convictions -- Pen. Code §§ 25400(a), 25850(c)”: CALCRIM Number 2540; and
“Carrying Firearm: Stolen Firearm -- Pen. Code, §§ 25400(c)(2), 25850(c)(2)”: CALCRIM Number 2541.

A felony conviction for carrying a concealed firearm under P.C. § 29800 is punishable by a prison sentence of sixteen months, two years, or three years in prison.

Brandishing a Firearm (California Penal Code section 417)

P.C. § 417 defines the crime of brandishing a weapon as the act of using a firearm or other deadly weapon to threaten or assault someone else. The prosecution proves your guilt under this statute by establishing the following elements:

  • You drew or exhibited a deadly weapon in another person's presence. The prosecutor doesn't need to prove that the firearm was actually pointed at the alleged victim;
  • You acted angrily or rudely;
  • You used the weapon to quarrel with or threaten a person. You can face arrest and charges for brandishing a weapon even if the gun wasn't loaded. The only thing that must be clear is that you used the weapon in a quarrel with someone else; and
  • You were not acting in self-defense. You can legally draw your firearm or weapon on another person to reasonably defend yourself. Therefore, the prosecution must prove your guilt by showing that you were not in danger and your actions were not in self-defense.

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

In most cases, brandishing a weapon is a misdemeanor. A conviction for violating P.C. § 417 is punishable by a one-year jail sentence and a $1,000 fine. If you face an arrest for brandishing a weapon on school grounds or around a daycare center, you could face felony charges.

Felony P.C. § 417 attracts a prison sentence ranging from sixteen months to two years or three years. Facing an arrest for brandishing a weapon is detrimental to your immigration status. A conviction can result in deportation or being rendered inadmissible.

Imitation Firearms (California Penal Code section 12556)

California is known for its strict gun laws, which codify when you can possess and purchase a firearm. You can also face an arrest and charges under P.C. § 12556 if you own or display imitation firearms. Under this statute, an imitation firearm includes objects like a replica firearm or toy gun.

Additionally, having an object that merely appears to be a firearm in a public area could attract criminal charges and a conviction under P.C. § 12556. However, a first offense for displaying an imitation firearm only subjects you to a $100 fine.

Felon in Possession of a Firearm (California Penal Code section 29800)

California P.C. § 29800(a)(1) restricts the purchase or possession of firearms by convicted felons, narcotics addicts, and individuals with active felony warrants. The following three elements must be clear when proving your liability under P.C. § 29800(a)(1):

  • You fall under the felony category;
  • You purchased, owned, or received a firearm; and
  • You knew of the gun's presence.

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.

Violation of a felon-in-possession-of-a-firearm law is a felony. If you are found guilty of the offense, you could serve a prison sentence of sixteen months, two years, or three years depending on the circumstances. Instead of spending time in prison, however, the judge can sentence you to felony probation.

Drive-By Shooting (California Penal Code section 26100)

Discharging a Firearm from a Moving Vehicle (“Drive-By Shooting”) involves shooting a firearm from a motor vehicle. Whether you are the actual shooter or allow another person to shoot the gun from your car, you can face arrest and charges under California P.C. § 26100.

This covers a wide range of criminal behavior that is associated with a drive-by shooting, including:

  • Willfully shooting another person from your motor vehicle. Your actions must be intentional before you are convicted for a drive-by shooting;
  • Allowing a person to bring a firearm and shoot it from your vehicle. Again, you can face criminal charges for a drive-by shooting even when you did not hold or shoot the firearm.

The prosecution can charge P.C. § 26100 as a wobbler – i.e., a misdemeanor or a straight felony. If you allow someone else to shoot a gun from your car, you will face a misdemeanor conviction and a six-month jail sentence. Otherwise, a drive-by shooting conviction attracts a sentence of sixteen months, two years, or three years in prison.

Shooting at an Inhabited Home or Vehicle (California Penal Code section 246)

P.C. § 246 makes it illegal to shoot at an inhabited building, dwelling, vehicle, or aircraft. The court requires the prosecution to prove these elements beyond a reasonable doubt to obtain a conviction for shooting in an inhabited place:

  • You willfully discharged the firearm;
  • You shot the gun at an inhabited home or vehicle; and
  • Your actions were not geared towards self-defense.

Shooting into an inhabited dwelling is a felony. If you face a conviction under P.C. § 246, you risk a three-year, five-year, or seven-year prison sentence.

Assault with a Deadly Weapon (California Penal Code section 245)

You commit a crime under P.C. § 245(a)(1) if you use a dangerous weapon to injure or attempt to injure another person. The elements of the crime that constitute this offense consist of:

  • You performed an act that is likely to result in the application of force on another person;
  • You performed the act with a lethal weapon and enough energy to cause serious injury;
  • Your actions were willful;
  • When you acted, you knew that your actions would lead to the application of force; and
  • You had the present ability to apply force and cause an injury to another person.

See CALCRIM Number 875 (“Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury -- Pen. Code §§ 240, 245(a)(1)-(4), (b)”): CALCRIM Number 875.

Under California law, assault with a deadly weapon is a wobbler. The prosecution can file misdemeanor or felony charges based on the type of weapon you use and the severity of injuries (if any) to the victim.

Misdemeanor penalties for assault with a deadly weapon include a one-year jail sentence or a $1,000 fine. A conviction under P.C. § 245(a) (1) as a felony will attract a prison sentence of sixteen months, two years, or four years. The court may increase your sentence to twelve years if the weapon is a firearm.

See also Personal Discharge of a Firearm During the Commission of a Serious Felony (California Penal Code section 12022.53(c)) (20 years);

Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)); and

Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7: California Penal Code section 12022.7).

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

While upholding the right to purchase and own a firearm in California, the state has banned many firearms that can potentially cause mass casualties. California P.C. § 30605 seeks to punish individuals who unlawfully own or control prohibited assault weapons.

When establishing your guilt under P.C. § 30605, the prosecution must prove that you knowingly possess the assault weapon. Firearm possession can be constructive or actual:

  • Actual possession. If you were carrying it on your person or in your vehicle, you are considered to have the subject weapon.
  • Constructive possession. This means that you have access to and control over the alleged firearm.

California has a long list of assault weapons that are prohibited, including:

  • Semi-automatic rifles with a capacity of up to ten rounds;
  • Semi-automatic rifles with magazines that have extra features or modifications; and
  • Semi-automatic rifles, pistols, and shotguns.

See “Possession, etc., of Assault Weapon or .50 BMG Rifle -- Pen. Code §§ 30605, 30600”: CALCRIM Number 2560;

“Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense - Charged as Separate Count and as Enhancement -- Pen. Code § 30615”: CALCRIM Number 2561; and

“Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense - Charged Only as Enhancement -- Pen. Code § 30615”: CALCRIM Number 2562.

Possession of an assault rifle is a wobbler. A misdemeanor conviction under this statute is punishable by a one-year jail sentence and up to $1,000 in fines. If the prosecution charges you with felony possession of an assault rifle, you risk facing a sixteen-month, two-year, or three-year prison sentence.

Not all cases of assault rifles are severe. Under the following circumstances, your charges could be reduced to a misdemeanor:

  • You can argue that you had the firearm before it was declared an assault weapon;
  • You have no prior convictions for a firearm-related offense; or
  • You relinquish your rights to the weapon under California Penal Code section 31100: California Penal Code section 31100.

Illegal Sale of a Firearm (California Penal Code section 26500)

You commit a crime under California P.C. § 26500 when you sell, lease, or transfer a firearm without a valid license or permit. Under this statute, a firearm is any device designed to expel a projectile and that causes an explosion.

Some individuals cannot legally own a gun under any circumstances, including:

  • Anyone with a felony conviction on their record;
  • Individuals who are addicted to narcotics;
  • Persons who suffer from mental incapacitation;
  • Anyone under eighteen years; and
  • Individuals with two or more convictions for brandishing a weapon.

See also Felon in Possession of Ammunition (California Penal Code section 29800).

California law requires the sale and transfer of all guns through licensed dealers. The following individuals and transactions are exempt from prosecution under P.C. § 26500:

  • Law enforcement officers;
  • Individuals acting on a court order;
  • Transfer of firearms at gun shows;
  • Individuals seeking to dispose of guns that they have inherited;
  • Temporary loaning of firearms at target shooting facilities; and
  • Delivery of unloaded firearms to licensed collectors.

You can avoid charges by ensuring you have a valid firearm license for all your weapons. Additionally, you should ensure that you buy your firearms from someone licensed to do so.

The unlicensed sale of firearms is a misdemeanor punishable by a maximum six-month jail sentence and a fine not exceeding $1,000. You may face seperate punishments for each firearm you transfer or sell without authorization.

Defenses Against Gun and Weapon Offenses in California

Facing an arrest for a firearm offense does not mean you will necessarily be convicted. With the following legal defenses, you can fight the charges and avoid the harsh penalty that often accompanies a conviction:

  • Self-Defense

No law prevents you from defending yourself from immediate danger. Unfortunately, your attempt to defend yourself could be interpreted as an assault or threat to someone else. However, when using self-defense against your charges, it must be clear that you reasonably thought you were in imminent danger and used only necessary force to protect yourself (or another person).

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.

  • Illegal Search and Seizure

In cases involving, for example, felons in possession of a firearm or possession of an assault rifle, the police must often conduct a search to ascertain the presence of these weapons. Even when you are suspected of committing a crime in California, law enforcement officers must obtain a valid warrant to search your vehicle or home. In cases based on an illegal search, you can petition the court to throw out illegally obtained evidence.

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

Motion to Suppress Evidence
(California Penal Code section 1538.5).

  • Police Misconduct

You can formulate a defense for your firearm charges around police misconduct, including forced confessions and the planting of evidence. Most forms of police misconduct violate your constitutional rights, and you can use them to seek a dismissal of the case.

  • Police Entrapment

Entrapment occurs when police officers use coercion and other overbearing tactics to induce you into committing a crime. You can avoid a conviction for firearm crimes using this defense.