While you can apply for a gun license in California, there are areas where gun possession is unlawful and could cause legal consequences. In most cases, defendants who face arrest for carrying a loaded gun in public do not necessarily intend to cause chaos or harm to others. Even though you are a licensed gun-holder, carrying the weapon violates penal code provisions and has legal consequences.
The offense of carrying a loaded gun leads to charges where the prosecutor must prove that you are guilty by submitting evidence in court. Therefore, you need to consider a criminal defense lawyer's legal assistance to help raise sound arguments in court on your behalf.
With the right lawyer by your side, you will have access to a smoother trial period, thanks to the teamwork involved in gathering evidence and preparing your submissions. Moreover, you get to follow up on each step of the trial process, as your defense attorney will explain the reason for specific decisions and court orders.
At the California Criminal Lawyer Group, we offer legal support for your case by providing the best lawyers to preside over defenses, negotiations with the prosecutor, and handling other preliminary issues. Our team has gathered a wealth of criminal defense experience with years of practice to assist clients in the San Jose, California, area.
The Legal Definition of Carrying a Loaded Gun as an Offense
The Penal Code used as a reference statute in California prohibits carrying any weapons on him/her in his/her car when going to a public area or any prohibited unincorporated area under section 25850. Therefore, the prosecutor must show several crime elements before the judge finds you guilty of any charges. In his/her strategy to show that you should face a conviction for the offense, the prosecutor will also need to expound on the various elements and define each factor relevant to your case. The main components that make up the offense of carrying a loaded gun are:
1. You Had the Firearm on You or In Your Vehicle
The term firearm refers to all devices that can serve as weapons and discharge a projectile using the force from an explosion. Firearms may range from guns, pistols, or even rifles, as long as the shot fired gathers strength from a blast in the weapon's barrel. Using this information, you can therefore distinguish your case from the prosecutor's allegations, mainly if you carried a BB gun instead of a firearm.
The prosecutor's essential element to prove is that you had the firearm in question in your car or on you by holding it in your pockets, in a small pack, or even fit it openly in your hands. Proving that you possessed the firearm mainly requires the prosecutor to collect evidential sources like surveillance footage if any is available, as it would provide concrete evidence against you.
However, the circumstances leading to your arrest may have occurred in a location where there were no surveillance cameras, meaning that all records of events will come from police reports and witness statements. As a result, the prosecutor will work closely with the police department to obtain copies of reports made after your arrest, including any officers' observations concerning your conduct. Suppose any witnesses saw your firearm in your vehicle or on you. In that case, they will also appear in court and testify on the events that led to them discovering that you had unlawfully carried the loaded firearm.
Evidence on your actions may also come from reports provided by officers who conducted a body search on you or a vehicle search. For example, the officers responsible for searching the car will prepare a list of items found in the vehicle. Therefore, the prosecutor can use the information to prove that you had the firearm on you. Similarly, any weapon restored from a body search will be confiscated and stored by the arresting officers for use in court as evidence for your violation.
2. You Carried the Loaded Firearm in a Public Place
Once the prosecutor established that you had the firearm on you, he/she must also prove that you were in a public area where such weapons are prohibited. The penal code describes a public place as any area where the public has free access for any general use. Moreover, a public class does not have restrictions for anyone who likes to go there. Hence, different groups of people, including children and the elderly, are likely to be in such a vicinity. Typical public areas include nature trails, supermarkets, and amusement parks, where many people are prone to be. Streets and general sections of cities also fall under the criteria of a public place, as any person can access them.
During the trial, the prosecutor will rely on circumstantial evidence to show that you were in a public area during the arrest. For example, they can retrieve information concerning the location you were at, the number of people who frequent the site, and the reason behind your visit to the place. Police reports will also provide more information on the time you were in the location to show that you may have intended to use the loaded firearm for harmful purposes.
Furthermore, the prosecutor can also provide city policies to show the exclusive prohibitory regulations that make it an offense to carry loaded weapons. Here, the main focus will be to establish your actions in violation of stipulated rules. However, your defense attorney can work on several defenses to refute what the prosecutor states, including questioning the nature of the public location or whether you carried a firearm to the area.
3. The Firearm was Loaded
The charges pressed against you will only suffice if the firearm you carried was loaded at the arrest time. Therefore, the prosecutor should provide evidence to support the claims made. A loaded gun consists of an unexpended shell or cartridge body that sits in the firing compartment. The firing chamber should also be inside a firearm clip or magazine that forms part of the entire firearm. With such specific requirements to prove the crime element, the prosecutor will have to present the actual weapon that led to your arrest for assessment during the trial.
He/she can also include a statement from an expert in firearms to testify on the gun's nature during your arrest. If the expert provides corroborating information, the judge will likely find you guilty of the offense and issue penalties accordingly. It is also vital to know that the prosecutor doesn't need to show that you knew the gun was loaded. As a result, raising a defense in claims that you did not see the gun was loaded will not support your case. Hence, your criminal defense attorney should prepare adequate reasons beforehand to ensure that your genuine lack of knowledge does not negatively affect the trial outcome.
Penalties for Carrying a Loaded Firearm
The trial process conclusion may bring about two outcomes, whereby the judge could find you guilty or not guilty of the crime. If the prosecutor succeeds in proving all three essential elements, you will face some consequences that may lead to jail sentences or a mandatory fine payment. Certain aggravating factors that could lead to a sentence enhancement also exist and are based on the previous criminal activities you engaged in with a firearm.
Generally, the crime of carrying a loaded firearm will attract misdemeanor charges that could lead to:
- A sentence in the county jail that lasts for up to one year
- A fine of up to $1,000
However, in some cases, the offense becomes a wobbler crime, or a straight felony, depending on the circumstances. A wobbler crime may attract felony or misdemeanor charges if the judge presiding over your case finds it appropriate. For example, if you carried the gun to commit assault, you could face a felony sentence, especially if any crime victims sustained injuries from the firearm's fear. In these scenarios, the felony charges include a three-year maximum jail sentence or a $1,000 fine payment or both. Should the judge decide to issue misdemeanor penalties, the same punishment mentioned above applies.
Conversely, when the judge classifies the offense as a straight felony, you will be liable for more severe consequences. A straight felony consists of repeated gun offenses based on your previous convictions. Thus, the judge views it as non-conforming behavior if you have a criminal record in misusing firearms. The punishment for a straight felony charge is spending a maximum of three years in county jail or paying a $10,000 fine for the offenses. Aggravating factors that could lead to facing straight felony charges include:
You are Part of a Criminal Gang
While you may have a chance to raise defenses for carrying a loaded gun in normal circumstances, the situation changes if the judge receives information about your gang activity engagement. You may not necessarily be guilty of harming victims using the firearm in question. Nevertheless, gang members often carry joint liability because of the aligned intentions of the crime victim.
Additionally, you may be identified as part of a gang, even if you were merely aiding and abetting criminal activities by carrying the loaded gun to the perpetrators. Aiding or abetting a crime is an offense in itself, leading to the need for additional punitive measures for any guilty party.
You Have a Previous Firearm Record
Repeat offenders are commonly on the disadvantaged side of sentencing, mainly because of the previous criminal history that could negatively portray them. Suppose you are a past firearm law offender. In that case, it helps to work closely with your criminal defense attorney, who will ensure that all criminal records presented before the judge are valid and led to lawful convictions.
Therefore, in taking such diligence, you can point out any concerns regarding past cases and convictions than the current charges you face. For example, if the previous conviction were expunged because of mitigating factors, it would be unfair for the judge to consider it in your current case when making sentence enhancements. However, if the counter-claims and defenses do not succeed, you will be liable to face the additional penalties designated for straight felonies.
You Stole the Firearm in Question
Theft is a serious crime that could create a separate charge altogether if the circumstances of the entire course of action are independent of each other. Hence, stealing a firearm is considered a serious offense because of the dangerous nature of the weapon. The intention of your theft will also be a significant point of discussion, as it may point out additional factors in your case that report on why you had a loaded firearm on you.
Before the judge considers this aggravating factor, the prosecutor must produce convincing evidence to show that you stole the firearm. Some main elements for determination include showing your criminal intent to deprive another of the firearm's possession, and your action of picking the gun and getting away with it. Once the prosecutor succeeds in proving such factors, you will, after that, face the penalties based on your crime severity.
You Lack a Legal Firearm License
Before purchasing a firearm, it is necessary to apply for a permit to own the weapon and use it according to its guidelines. A failure to apply for the firearm licenses leads to illegal ownership and possession of the firearm, as it will be unregistered under your name. Consequently, you will be liable for the unlawful operation or handling of the weapon. You may even experience additional scrutiny once arrested to ensure that the firearm you possessed was unstolen.
Doubtless, your case will fall under the category of straight felonies for this oversight, based on the inconsistency in the legal ownership of a firearm. The patient may also be similar if your license expired without renewal. As a gun possessor, you hold the responsibility of ensuring that your legal documents are updated. Regardless of the inclusion of criminal liability, it is relatively more comfortable to raise a defense when the license expires than a lack of proper registration as required by law.
You Faced Legal Prohibition From Owning a Firearm
Once you face a previous firearm conviction, you will likely face penalties that involve the revocation of your gun license and any other privilege to own a firearm. Upon the loss of your firearm rights, it will be illegal to carry a loaded weapon into public areas on your body or inside your car, even though you do not intend to use it in harming anyone.
The arresting officers should conduct proper investigations to ensure that they were under restrictions on owning a firearm before arresting you. Some of the information that must be present in the prosecutor's presentations will include your records ordered to lose your right to own firearms.
Some defendants also have to face a compulsory sentence for a minimum of three years. The stringent measures are set aside for offenders who were carrying the firearm to commit additional offenses. For such cases, the charges you face will be in addition to violating the provisions under section 25850. Some common crimes that attract the mandatory three-month jail sentence include:
Carrying a Weapon to Shoot an Inhabited Car or Dwelling Place
A dwelling place consists of any structure, including a house, tent, or trailer that serves as a residence for inhibitors. Vehicles also form part of the premises where carrying a weapon to shoot would be unlawful, as provided in section 246 of the California Penal Code. The offense requires the prosecutor handling the case to show that you intended to shoot at the car or dwelling place by analyzing your criminal intent.
Circumstantial evidence plays a significant role in determining if you had formed the intention, which is a primary consideration for the prosecutor's claims to succeed. Some of the circumstances analyzed include whether you had identified a specific dwelling place or car shoot and whether you had established a strategy for your attack. Working with organized gangs will also provide the evidence needed when showing that you may have been part of organized crime like robbery with violence.
Carrying a Loaded Firearm to Commit Assault
The offense of assault has several elements that make a crime victim reasonably believe that he/she is in danger. Therefore, you don't need to cause actual physical harm, as long as the crime victim has justifiable apprehension towards your general presence and use of the firearm. Even if the person did not know whether your gun was loaded or not, the assault would be a chargeable crime for your actions, yielding the mandatory three-month conviction.
Additional instances of assault may include using the firearm to intimidate a third party into accepting your demands, especially when engaging in carjacking, robbery, and other unlawful actions. The available witness statements from the crime victims serve as essential sources of evidence to show that they reasonably feared for their safety upon noticing that you had a firearm on you or in your vehicle. Section 254(1)(a) of the Penal code provides the penalties for assault using a deadly weapon.
Defenses for the Crime
Upon facing arrest and receiving a trial date for charges to do with carrying the loaded weapon, your criminal defense attorney should engage different witnesses and other sources of information to help develop the best defenses for your matter. Moreover, it would be best to work with your lawyer to give every detail you think would benefit the general preparations before the case proceeds to the trial stage. This way, the defenses presented will be persuasive and backed by substantial evidence and affirmations from experts. The available defenses include:
The Law Allows You to Carry a Loaded Firearm
You may have faced unlawful arrest in exceptional cases because of the law exceptions that allow you to carry a loaded firearm. For example, if you are a recreational shooter with a license and documents affirming your liberty to carry a gun, the defense will serve your case. The essential point to prove is that you have the required documents as proof of legal permits to carry the firearm.
The Firearm was Unloaded
If the arresting officers apprehended you before checking to confirm whether the firearm was loaded, you may raise a defense stating that it was unloaded. In this case, it will be difficult for the prosecutor to prove beyond a reasonable doubt that the weapon was loaded from the onset instead of possible misconduct to change the evidence's nature. If you suspect that the police engaged in such misconduct to try and pin false accusations against you, it will help to reach out to your lawyers as soon as possible to avoid raising the concerns when it is too late.
The Arresting Officers Retrieved the Firearm in an Illegal Search and Seizure
All officers must produce a valid warrant before searching a vehicle or any other premises where you could have carried a loaded firearm. Thus, if you did not receive any legal notices about a search, it is possible to raise the defense, as it contravenes your rights.
You Were Unaware that You Were Carrying a Firearm
If your case circumstances permit the possibility that you did not knowingly carry a loaded firearm, you may argue your case. For example, if you borrowed someone's car, which had the loaded gun stored in it without your knowledge, your defense attorney can focus on raising such facts to counter the prosecution's claims.
Find a San Jose Criminal Defense Attorney Near Me
It is common for people to violate statutes even without their knowledge. When you face arrest for carrying a loaded weapon in public places, it is best to seek an experienced criminal defense lawyer’s services. Your lawyer should represent you in court and develop the best arguments in your defense.
At the California Criminal Lawyer Group, you receive legal assistance from well trained and experienced lawyers who have worked with numerous clients from San Jose, California. We are on standby to handle your case and develop the best solutions for a favorable outcome. Call us today at 408-622-0204 for a free consultation.