California Penal Code 25850: Possession / Carrying a Loaded Firearm
Prosecutors and law enforcement treat firearm cases seriously to avoid crimes being committed with the use of a firearm. The Second Amendment of the United States Constitution permits individuals to own or possess a firearm. However, there are certain exceptions to the Second Amendment that one must comply with in order to avoid prosecution. It’s important to note that there are a number of defenses available to someone who has been charged with possessing or carrying a loaded firearm.
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Los Angeles Firearms Lawyer John Rogers understands that charges for possession of a firearm can occur at any time of day which is why he makes himself available 7 days a week to consult with individuals accused of such offenses. The best approach to defeating firearm offenses is early criminal defense attorney intervention, contact Mr. Rogers immediately.
Carrying a Loaded Firearm Defined by Statute
In California, carrying a loaded firearm is defined under Penal Code 25850(a) which provides, “A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”
Elements of the Crime
In order for someone to be found guilty of carrying a loaded firearm, the prosecution must prove beyond a reasonable doubt:
- Defendant carried a loaded firearm in his or her vehicle or person
- Defendant knew they were carrying a firearm
- Defendant was in a public place or public street
The firearm need not be in working order but only that the firearm was designed to shoot and appeared to be in working order. Additionally, a firearm is loaded when there is an unexpended cartridge or shell in its firing chamber or magazine clip.
What is the Punishment for Carrying a Loaded Firearm?
Carrying a loaded firearm in California is a misdemeanor offense pursuant to PC 25850(c)(7). However, if one is alleged to being a part of a criminal street gang while in possession of a loaded firearm, the consequences can be substantial. If convicted under this statute, on faces consequences of:
- Up to One Year in the County Jail
- 3 or 5 Years of Probation Time
- Up to $1,000 in Fines
- Temporary Loss of Search & Seizure Rights
- Temporary Firearm Ban / Restrictions
- Immigration Consequences
What are the Legal Defenses to Carrying a Loaded Firearm?
- You were not in a public area or an area where it was legal to discharge a firearm
- You did not know of the firearms presence. This could be common if someone left a gun in your vehicle without you knowing, or perhaps you had an overnight guest and police officers discover a firearm in a drawer in the guest room.
- The firearm was not loaded. This statute requires the firearm be “loaded.” If the clip was not attached or there was no bullet in the chambers, you are not guilty of this offense. Often times, individuals keep their weapons in a safe and separate the ammunition from the firearm.
- You were unlawfully searched or seized by Police Officers. Police officer must have probable cause to conduct a full search of your person or vehicle. Additionally, Police Officers must justify the reason for detaining someone. Weapons offenses can be dismissed as a result of police officers unlawfully conducting searches when they should have obtained a warrant.
- You were carrying the firearm for immediate self-defense. If you are acting in self-defense in protecting yourself from death or great bodily injury, you may be justified in carrying the firearm for that limited purpose.
- You were not in possession of the firearm. The prosecutor must prove that you were carrying a firearm. If the gun/firearm was not discovered on your person, the prosecutor has a more challenging burden of connecting you to the firearm.
Dan was walking on the street when he was detained by police officers. They ask Dan where he’s going and where’s he’s coming from. Police officers then conduct a search of Dan’s pockets and discover a firearm. Dan is immediately arrested. In this case, Dan will defend these charges claiming the police officers unlawfully detained him without any cause and searched his person without any valid legal justification. Therefore, the gun will be suppressed and case will be dismissed as a result.
Dan was walking home from his friend’s house. He accidently took his friends backpack versus his own. Little did he know, the backpack he was carrying contained a loaded firearm. Police officers stop Dan, questioned him, and searched the backpack. Police discover the gun and arrest Dan. In this case, Dan will contend there was no legal justification for the detainment and search of his backpack absent probable cause. Furthermore, Dan will not be guilty of this offense because he did not “know” he was carrying the firearm.
Can my Attorney Prevent Charges from being filed?
If the case consists of a misunderstanding, or there is mitigating evidence, or exculpatory evidence showing innocence, there may be a chance to prevent charges from being filed. Moreover, a criminal defense attorney can track the case and submit a package consisting of character letters, exculpatory information, etc. prior to the prosecuting agency filing formal criminal charges. This is a chance to present your side of the story or show your character to the prosecutor in an effort to get the case rejected. It’s important to note that the prosecutor only has the police report to work from and often the report is damaging to the accused favoring guilt. This method serves to present all the evidence to the prosecutor prior to rendering a decision to file charges.
Free Los Angeles Firearms Lawyer Consultation
If you have been arrested, accused, or charged with carrying a loaded firearm, contact Los Angeles Criminal Defense and Firearm’s Lawyer John Rogers at the Law Offices of John D. Rogers immediately. Mr. Rogers is located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call (949) 625-4487 for a free confidential consultation concerning your rights and defenses.