California allows people to own guns as long as it is legally owned. However, even when a person owns a gun lawfully, they are subjected to some regulations. One cannot purchase whatever firearm they want because they have a permit to own a firearm. If a person violates these restrictions, they are prosecuted for the said offenses. A person must know where and when to own and carry a gun, and failure to this will lead to criminal prosecution against them. The penalties against gun offenses in California are stringent. A person with a vendetta against you can accuse you of violating a gun law as well. Genuine and false accusations may happen as well as misunderstandings. If a person gets convicted of a gun offense, it may affect a lot of areas of their lives. Getting an experienced criminal attorney will help you formulate a defense against these charges and avoid wrongful convictions. Get in touch with us today at the California Criminal Lawyer Group and let us help you fight these allegations.
Common Gun Offenses in California
There are various offenses with regards to guns in California and are punishable by law. Here, we shall discuss the multiple gun offenses, the penalties for them, and legal defenses of the same.
Unlawful possession of a gun
The law provides for an adult that is 21 years or more to purchase a gun without the necessary license. Where the law does not prohibit an individual, one can legally have a gun and keep it in their house or business premises. The law also allows for an individual to legally take a firearm as long as it is safely locked away.
You are prohibited from owning a gun if:
You hold a record as a felon, are a drug addict or have previous two convictions for exhibiting a weapon. In addition to this, if you were convicted of misdemeanor violations, you cannot possess a gun. Additionally, if a person has a mental illness, they also cannot own a gun, especially if they have previously been placed under psychiatric care involuntarily. Lastly, a person that is below the age of 21 is also not allowed to own a gun.
When found with ammunition, when you are not legally allowed to own a gun is also illegal. In a nutshell, being found with a gun illegally is punishable by law in California.
Carrying a Concealed Firearm without a Permit
If you own a firearm, you must also have a firearm permit as stipulated in PEN 26150 and PEN 26155 that talks about permits needed to carry with you a concealed gun. With the license, a person can take a revolver, pistol, or any firearm that can be hidden within your person. Permits are generally issued by the police departments or the local sheriff’s office.
A person to qualify to get this permit, they must show that:
- They are upstanding and of an ethical, moral character
- There is a good reason as to why you should get the license or permit
- You reside in a particular city or town
- You have undertaken and completed the required firearms training course.
With this permit, one can carry with them a hidden or concealed firearm that is loaded. However, there are various conditions stipulated in the permit that you must follow. If you are found carrying a concealed firearm without the necessary permit, it is a criminal offense that is punishable under the law.
The regulations for carrying concealed guns fall under PEN 25400. The statute makes it an offense for any person to take any concealed firearm within themselves or in their cars. For a conviction to happen, the prosecutor must show that the defendant was aware they had a concealed weapon. For instance, if you had given a person a lift and they left their gun underneath their seat, you are not guilty of the offense.
If found carrying a concealed weapon without a permit, you are guilty of a misdemeanor offense. Should you get convicted of the offense, you will face jail time not exceeding a year in county jail. Additionally, you will be expected to pay a cash fine, not exceeding $1,000.
On the other hand, carrying a concealed weapon without a permit can also become a felony. This only happens when:
- The defendant has a previous conviction of a felony or a prior firearm offense conviction in California.
- The firearm in question is stolen, and the defendant is aware or had a reason to believe it is stolen.
- The firearm is illegally in your possession
- According to PEN 29800, the defendant is prohibited from owning or having a gun
- According to PEN 29900, the defendant is prohibited from having or owning a firearm because they committed or tried to carry out an offense that is classified as violent. Some of those offenses are rape, murder, robbery, carjacking, and many more.
If convicted as a felony, having a concealed gun can earn you 16, 24, or 36 months of county jail time. Additionally, the defendant will be expected to pay a fine, not exceeding $10,000.
Violations to PEN 25400 can be a wobbler offense in California. This is determined if the defendant had a previous conviction. The conviction can be of a misdemeanor for an offense against property or an individual. A prior conviction due to drugs or narcotics will also be considered. Additionally, if the concealed weapon is loaded and or its ammunition is within easy access or the gun is not registered to you, it becomes a wobbler.
In this case, the prosecutor will decide whether to prosecute the offense as a felony or a misdemeanor. The penalties for each are discussed above. In addition to the sentences above, when a defendant was previously convicted of a felony, violations of PEN 25400, they will serve a mandatory three months county jail time.
Selling of Weapons or Firearms without a License
Requirements for a person to become a licensed firearms dealer are found under PEN 26700. It is illegal to lease, sell, or transfer a firearm with no license. If you are found doing this, misdemeanor charges are leveled against you as contained in PEN 26500. If convicted of these violations, the defendant is likely to face jail time of a year and or a cash fine not exceeding $1,000.
Carrying a Firearm as a Convicted Felon
You are found carrying or in possession of a firearm, and you have a previous record as a convicted felon, you are in violation of PEN 29800. It is illegal in the state of California for a person with a previous felony conviction to possess or own a gun.
Individuals that are categorized in this group not to possess or own a firearm are:
- Any person that is under indictment or there is information in the court that can lead to imprisonment for not less than a year. This person is not legally allowed to have a gun.
- A person that was dishonorably discharged from the military is also not allowed to own or possess a gun
- Any person that has renounced their citizenship or is an illegal alien cannot hold a gun under the law
- Any person that has a court order for a crime in stalking or a person running away from justice.
If you belong to any of the above categories, owning or possessing a gun is a violation of PEN 29800.
When you get convicted of this violation, your right to own a gun can be revoked for at least 10 years. In some instances, your gun rights can be abolished for life. If the person is a juvenile, they are prohibited from owning a firearm until they are 30 years of age.
Having a Loaded Gun in Public
The gun offense is stipulated under PEN 25850. A person is prohibited from carrying a gun that is loaded in public. The same law makes it illegal for a person to have a loaded gun next to them in the car or within easy reach. But if the loaded gun is in a container that is sealed or the trunk of the car, then it is not an offense.
The law indicates that a gun is loaded if it has a cartridge that’s unexpended or an attached shell. This is when you have a clip or a magazine joined to the gun or the firing chamber. Even if the firearm is not operable, the prosecutor can still bring charges against you on this offense.
It is also unlawful to carry a gun openly in California regardless of whether it is loaded or not, unless you are also carrying a permit for the concealed firearm. According to PEN 25850, it requires the defendant to have been aware the gun is loaded. However, if they were not aware, they are innocent of the offense.
Penalties for a defendant violating PEN 25850 by taking a loaded gun are similar to those of having a concealed weapon in PEN 25400. If a defendant is found to be taking a concealed and loaded gun with no permit, they face prosecution under the two statutes.
Carrying a Gun in Specific Places
There are some specific areas that the law prohibits a person from having a gun. A person found carrying a gun in the places discussed below will be found to be in violation of the law.
626.9– Having a Gun in School
It is an offense for a person to be found carrying a gun near or in school. The offense is punished under PEN 626.9 that stipulates schools should be gun-free zones. The penal code states that:
- Possession of a gun within school grounds or 1,000 feet within the school is a crime
- It is a crime to discharge or try to remove a gun within a school area, without regard for other people’s safety
- Carrying or having a gun that is loaded in school, teacher’s housing or student’s hostels, whether it is private or public, is a criminal offense
- If a person is convicted of violating PEN 626.9, they risk facing a county jail time of seven years.
171c – Having a Firearm in Government Building
A Person caught carrying or having a gun within a government building is guilty of a criminal offense. The charges, in this case, can be wobbler offenses. Some of the government buildings that one is prohibited from carrying a gun into are:
- All legislative offices or buildings
- State Capitol or the state capitol grounds of California
- Any place that is considered a hearing room. This is a room where the Assembly or the Senate may be carrying out a hearing
Individuals caught having a gun in government buildings face various penalties under PEN 171c. If prosecuted as a misdemeanor, the defendant can be imprisoned in a county jail for a year and or pay a cash fine not exceeding $1,000. If the offense is prosecuted as a felony and a conviction is arrived at, the defendant will face a county jail time of 16 or 24 or 36 months.
Under PEN 171c, it is also a misdemeanor offense to have in your possession any of the following in building described as belonging to the government:
- Prohibited weapons in general
- Unloaded guns or stun guns, pellet guns or BB guns, and paint guns or spot markers.
Those in possession of these weapons in a government building face up to year imprisonment in county jail. This may be in addition to paying a cash fine not exceeding $1,000, or both.
Common Offenses for Using a Firearm in California
Even when the law allows any person that is over 21 and not prohibited from owning a gun to own one, there are regulations on how one can use the gun. As discussed above, various offenses regarding carrying of firearms exist and attract serious penalties. However, the illegal use of guns carries even more strict penalties for offenders.
Some of the common offenses with regards to the use of firearms are:
Brandishing a Gun
A person is found exhibiting, using a gun or a deadly weapon, drawing a gun, they are in violation of PEN 417. Many people following an argument will want to threaten the other person by drawing their guns and brandishing them rudely and with anger. This is a criminal offense that one can be charged with. The law does not say that one must have had intentions to use the weapon. The offense is deemed complete when one brandishes the gun.
This offense can be prosecuted as a felony or misdemeanor. If one is convicted on a misdemeanor, the penalties to face will include jail time of at least 3 months but not exceeding a year in prison. Additionally, one will be expected to pay a cash fine, not exceeding $1,000, or both.
When one is accused of brandishing fake or an imitation of a firearm, they are likely to be jailed for a minimum of 30 days.
- Brandishing a gun to be considered as a wobbler offense under PEN 417 happens when:
- When the defendant brandishes the weapon within childcare grounds when the center is in session or open
- Drawing the weapon in the vicinity of an officer of peace that is trying to carry on with their duties
- Brandishing a gun against a motorist or an occupant in a car
When a person commits these offenses, the charges brought against them are prosecuted as a felony or misdemeanor. If a defendant is convicted of a misdemeanor, they get a county jail time of between 3 months and one year. If the convictions are of a felony, the defendant will go to state prison for either 16, or 24, or 36 months.
In addition to the above penalties, a person convicted for brandishing a gun against a vehicle occupant will be charged a fine not exceeding $3,000.
When the defendant is being arrested for any other offense and draws out a gun, it is a direct felony. This is regardless of whether it is loaded or not in an attempt to resist arrest. For these violations, the defendant faces state imprisonment for two or three or four years.
Inflicting Bodily Harm Through Brandishing a Gun
A person is brandishing a gun to threaten or resist an arrest; it is likely that they can cause injuries to another person or law enforcement officers. When a person does this, they are guilty of a wobbler offense for intentionally inflicting injuries to another person. The laws on this are stipulated under PEN 417.6 that stipulates the consequences of inflicting severe bodily harm. Some of the injuries considered serious include causing the person to lose consciousness, have a concussion, fractures, disfigurement, a serious wound, or loss of functionality of a body part or organ.
A defendant that causes severe body injuries by brandishing a gun faces severe penalties. If convicted of a misdemeanor, they serve a jail sentence of a year. If the conviction is a felony, the defendant will get imprisoned in state prison for 16 or 24 or 36 months. On top of these penalties, the court can order for the confiscation of your gun.
Drive-by Shooting Offense
This is a common offense, especially among gang members. It involves discharging a gun while in a moving vehicle. The regulations on this offense are found under PEN 26100. Under this, the law prohibits against:
- Allowing a passenger in your car to come with a gun
- With your knowledge, allowing an individual to discharge their gun from your car as you drive or a vehicle you own
- Intentionally and with malice shooting at an individual from a car or random firing of a firearm from inside a car
The offense, although known as a drive-by shooting, does not require the vehicle to be in motion. As long as the shooter was inside the car while firing, the defendant is guilty of violating PEN 26100. Based on the particular circumstances of the offense, charges can be wobbler offenses. The crime can be prosecuted as either a felony or a misdemeanor.
If you own or were driving the vehicle that was involved in this offense, you will be charged with a misdemeanor. When found guilty, you can be jailed in county prison for not more than 6 months. Additionally, you can be asked to pay a fine not exceeding $1,000. This same offense can be charged as a wobbler. Allowing a person with a gun in your car or allowing them to shoot from the vehicle is a crime. The offense may get you a one year jail time or a fine not exceeding $1,000.
If you own or are the driver of a car used in this offense, if convicted of a felony, you can be imprisoned for 16 or 24 or 36 months or asked to pay a fine not exceeding $1,000 or both.
If you are the shooter in a drive-by shooting offense, you can face prosecution as a felony or misdemeanor. When found guilty of a felony, you face county jail time of not more than a year and or a fine not exceeding $1,000. If the conviction is a felony, the defendant will get a prison sentence of either 16, or 24, or 36 months. Additionally, the defendant can be ordered to pay a fine not exceeding $10,000 or both.
Shooting at a person from a vehicle is a direct felony. A conviction, in this case, will result in jail time of either 3, or 5, or 7 years. Additionally, the defendant will be required to pay a fine, not above $10,000.
Assault Using a Firearm
The law under PEN 245(a)(2) prohibits any person from assaulting another using a gun. Assault, according to PEN 240, is when a person unlawfully tries and has the ability to inflict great bodily harm to another.
Penalties for this offense depend on the victim assaulted and the kind of firearm used. If a BMG rifle is used, the offense is a felony. The penalty for this is jail time of 4 or 8 or 12 years in state prison.
When a semi-automatic gun was used, it is a felony offense. The penalty for this is 3 or 6 or 9 years of state imprisonment.
By use of a revolver is a wobbler offense. A misdemeanor conviction will result in a county jail time of between 6 and 12 months. If convicted as a felony, the penalties are more severe. The defendant faces 2 or 3 or 4 years of state imprisonment.
An officer of peace knowingly attracts more severe penalties. With an automatic weapon, the defendant is imprisoned for 5, 7, or 9 years. If the defendant used a machine gun or BMG rifle, they get 6, 9, or 12 years imprisonment. When another weapon is used, the defendant will be imprisoned for 4 or 6 or 8 years.
Assaulting a school employee also results in severe consequences. Shooting at vehicles, aircraft, or dwellings is also a serious offense under PEN 246 as well as 247.
Find a San Jose Criminal Lawyer Near Me
Gun offenses in the state of California are many and varied. The state has made it relatively easy to own a gun. However, the regulations on how to carry and use a gun are strict, and a violation of them can lead to severe consequences. If you are accused of committing any of the above offenses, the best course of action would be to hire an experienced criminal attorney. Contact the California Criminal Lawyer Group, and we shall help you develop a defense against the allegations. Call us today at 408-622-0204, and we shall gladly make an appointment with you.