In California, you can legally purchase and own a gun. However, California laws on weapons are some of the most stringent and complicated in the country. If you do not understand all the regulations and restrictions regarding firearms,you could easily break the law or find yourself facing firearm-related criminal charges.
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Most weapon and firearm offenses are charged as felony crimes and a conviction could attract serious legal penalties. In addition to the possible jail time, fines and a criminal record, a felony conviction for a firearm-related offense will result in losing your rights to possess a gun.
Hiring a competent criminal defense attorney is the first thing to do if you face these charges. At the Koenig Law Office, we offer legal guidance for all our clients seeking legal counsel in Bakersfield, CA, to ensure the best outcome in the case.
Overview of Weapon and Firearm Offenses
Although most citizens are allowed to possess and purchase a weapon, California Penal Code enumerates several weapons and firearm charges, including:
Carrying a Concealed Weapon Without a License
It is illegal to carry a firearm outside of your business or house without a license in California. The only way through which you can carry a firearm out of your property is by obtaining a permit under PC 26150. Carrying a concealed weapon is charged under California Penal Code 25400, and a conviction attracts severe legal penalties. For this statute, firearms include pistols, revolvers, or other weapons that operate on combustion and can be concealed.
If there is no evidence of aggravating circumstances, the maximum sentence you will receive after a conviction of violating PC 25400 is a one-year jail sentence and a $1000 fine. Some of the factors that the court may consider when determining your sentence include:
- Your criminal history. If you have committed violent acts in the past or have a firearm-related conviction in your record, you may face a harsher penalty.
- Evidence that you intended to use the firearm.
- Failure to cooperate with law enforcement during an arrest for carrying a concealed firearm may cause a sentence enhancement.
Sometimes, carrying a concealed firearm could be charged as a felony. For example, the following circumstances could prompt felony charges for violation of CPC 25400:
- If you were arrested for carrying a stolen firearm, you would be charged with a felony. However, the prosecution must prove that you knew the gun was stolen or obtained illegally.
- You are a gang member. Carrying a concealed firearm to use for gang activity, you will face felony charges.
- You are prohibited from carrying a gun as a result of a previous conviction.
- You have a prior narcotics or drug-related conviction.
- The concealed firearm you were carrying was loaded.
A conviction for felony carrying of a concealed firearm attracts a three-year jail sentence and a $10,000 fine.
California Drive-by Shooting Law
Shooting from a motor vehicle is a serious offense charged under CPC 26100. A conviction for this offense attracts a lengthy sentence and hefty fines. Violation of PC 26100 by improper handling of a weapon in the vehicle covers a wide range of criminal conduct, including:
- Firing a firearm from a vehicle.
- Maliciously shooting another person while in a car.
- Driving a vehicle and allowing another person in the vehicle to discharge a firearm from within the vehicle.
- Allowing another person to carry a loaded firearm in your vehicle. It is important to understand that a vehicle does not need to be in motion for you to be charged under PC 26100.
Whether you discharged the firearm or you allowed another person to do it in your vehicle, the prosecutor will try to prove these factors to prove your guilt:
- You or a passenger in your vehicle discharged a firearm.
- You acted willfully and maliciously.
- You were either driving the vehicle or owned it at the time when the crime was committed.
- You or the passenger discharged the firearm from inside the vehicle.
The penalties that accompany a conviction for violating PC 26100 vary depending on your criminal history and other circumstances in your case. For example, if a passenger in your vehicle fired a gun, you would face misdemeanor charges punishable by a one-year jail sentence. However, if you were driving the vehicle when the incident occurred, the penalties might be more severe.
If you discharged a firearm, you could be charged with a misdemeanor or a felony. Mostly, felony charges arise when you cause serious injury to another person. For example, a felony conviction for shooting a person from a vehicle attracts a prison sentence of up to seven years or a fine not exceeding $10,000.
Possession of a Weapon by a Convicted Felon
California PC 29800 criminalizes possession, ownership, and control of firearms by a convicted felon. For this statute, a felon may be an individual with a prior felony conviction, two or more weapon-related misdemeanors, or is addicted to narcotics. Also, if you have been convicted under federal law, you are considered a felon. For you to be convicted under CPC 29800, the prosecution must prove these elements beyond a reasonable doubt:
- You purchased, owned, or possessed a firearm. For you to be convicted for possession of a firearm by a felon, you do not need to be in actual possession. The prosecution only needs to prove that you had access to the firearm.
- You knew that you owned the firearm.
- You have a prior conviction for a felony or some misdemeanors.
- You have a federal conviction that would be punished as a felony in California.
The penalties of violating California’s felon with a firearm law are severe. A conviction for this offense attracts a three years prison sentence.
Assault with a Deadly Weapon
Under California Penal Code 245(a), assault with a deadly weapon occurs when you assault another person with a weapon other than a gun and with force likely to cause serious bodily injury. The specific elements of PC 245 that a prosecutor needs to prove in your case include:
- You performed an act that could naturally result in direct force towards another person Application of force is harmful or offensive touching towards another person. It is crucial to understand that slight touching did rudely or offensively counts as a force.
- You acted using a lethal weapon or by using a force great enough to cause serious injury to another individual. For this statute, a deadly weapon is any object with the ability to produce serious injury or death.
- You acted willfully. You cannot be charged or convicted for assault with a deadly weapon if your actions are accidental. The prosecution must prove beyond a reasonable doubt that you acted on purpose.
- When you acted, you knew that your actions would probably result in the application of force.
- You had the present ability to use the deadly weapon or apply force. Before you face a conviction for assault with a deadly weapon, it should be clear that you could apply force on the alleged victim.
The aggravated assault carried out with a weapon other than a firearm is a wobbler. When charged as a misdemeanor, violation of CPC 245(a) attracts a one-year jail sentence and a $1,000 fine. If it is treated as a felony, the crime is punishable by a prison sentence not exceeding four years and fines of up to $10,000.
If you face aggravated assault using a firearm or on a peace officer, you will face felony charges. The penalties for this type of felony may include a prison term of up to twelve years. In addition to the legal penalties, felony aggravated assault is a strike under the California Three strike Law.
Illegal Sale of Firearms
You can be arrested and charged with the illegal sale of firearms if you lease, sell or transfer firearms without a license. A firearm is any device designed as a weapon and issued force of an explosion or projectile for this statute. In California, the following individuals are prohibited from acquiring or possessing a firearm:
- Individuals below eighteen years.
- Convicted felons.
- Persons who suffer from a mental illness.
- Individuals who are addicted to narcotics.
- Persons with two or more convictions for violation of CPC 417 on brandishing a weapon.
Unlicensed sale of firearms is a serious offense prosecuted under CPC 26500. However, there are circumstances under which you may be allowed to lease, sell or transfer the firearm:
- Transfer of a firearm to a gunsmith for repair.
- Disposing of an inherited firearm within the first sixty days of receipt.
- Sale of an unloaded antique weapon to a licensed collector.
- Selling or transferring ownership of a gun to satisfy a court judgment.
- Loaning an unloaded firearm for use as props in a film.
In the above situations where sale or transfer is allowed, you must arrange a transaction with a licensed person acting as a broker. The prosecutor can only secure your conviction if they can prove that you sold or leased a firearm without a valid license to do so. Also, it should be clear that you knew that your actions were prohibited.
Violation of PC 26500 is a misdemeanor. It is crucial to understand that each firearm sold or leased will constitute a separate charge. A conviction for this offense is punishable by a jail sentence of up to six months or a $1,000 fine.
Carrying a Loaded Gun in Public
Carrying a firearm in an area that is accessible to the public could prompt an arrest and conviction under CPC 25850. A public place, in this case, could be a park, public streets, or any other area where possession of a loaded firearm is illegal. However, there is an exception to this law for:
- Honorably retired peace officers.
- An authorized money transporter or security guard.
- A concealed weapon permit holder.
Before a conviction, the prosecution must prove that you were carrying a loaded gun either on you or in the vehicle and took it to a public place. In most cases, carrying a loaded firearm in public is punished as a misdemeanor. However, if the gun was stolen or you were participating in a gang, you could face felony charges.
Brandishing a weapon
Unless you are defending yourself or another person, it is a crime to draw or exhibit a weapon in an angry or threatening manner in the presence of another person. If you use a deadly weapon during a quarrel or fight, you can face an arrest and charges for brandishing a weapon under CPC 417. For this statute, a weapon could be any object that can be used to inflict severe bodily injury or death.
A prosecutor must establish the following facts before you face a conviction for brandishing a Weapon:
- You possessed a weapon that fits the definition of deadly under this statute.
- You Exhibited or drew the weapon in an angry or threatening manner in front of another person.
- You used the deadly weapon during a quarrel or fight.
- You were not acting in self-defense. An attempt to defend yourself or another person is the only circumstance under which you can legally draw a weapon. Therefore, the prosecution must prove that you were not at risk of harm when you acted.
Brandishing a weapon is a misdemeanor punishable by a jail sentence of up to one year. However, some circumstances could cause you to be charged with a felony and face a harsher penalty, including:
- Threatening another person with a loaded firearm.
- Brandishing a weapon and intentionally causing serious bodily injury or death on another person.
- Brandishing a weapon in the presence of a peace officer or in an attempt to resist arrest.
If you face criminal charges for brandishing a weapon, it is vital to consult a competent criminal attorney for legal guidance and representation.
Possible Defenses For Weapon and Firearm Offenses
Weapon and firearm offenses attract serious consequences. However, with guidance from a competent attorney, you can present the following defenses in your trials:
You Did Not Know That You Had The Firearm
Accidental possession of a prohibited weapon is not a crime. Before you face a conviction, the prosecution must prove that you intentionally carried the weapon. If this factor is not established, the court may overlook your unconscious acts.
Claim That The Evidence Presented Is A Result Of An Illegal Search
Charges for prohibited weapons often arise after the police officers stop you for investigation or raid your home. In California, law enforcement can only search you or your property if:
- They have a reasonable belief that you engaged in unlawful activities. This will provide them with probable cause to carry out the investigation.
- You consent to the search.
- The police officers obtain a search warrant from the court authorizing them to search your property.
The court cannot use the evidence collected through an illegal search and seizure against you in a criminal case. With guidance from your defense attorney, you can demonstrate that the search was illegal and increase the chances of case dismissal.
Sometimes, police misconduct such as fabricating, planting evidence, or any other act that violates your rights may prompt the dismissal of your charges. Proving police misconduct can be challenging. Therefore, it is crucial to seek legal representation when battling firearm charges.
You had Authorization
A permit that allows you to carry a concealed firearm does not include prohibited weapons. Therefore, any weapon indicated in PC 16590 is not legal even when you have a license. However, if you have a license that allows prohibited weapons, you can use this as a defense.
A Case of Police Entrapment
You can use the entrapment defense if the police coerced, persuaded, or lured you into illegal conduct. The law presumes that any normal person will resist crime at all costs. However, police officers can be intimidating, and you can argue that they coerced you into committing the crime. When using this defense strategy, it should be clear that the officer initiated the crime.
In your criminal case, the prosecutor’s role is to provide evidence against you and persuade the jury that you are guilty beyond a reasonable doubt. The prosecution should not try to unjustly condemn you or try to influence the jury to impose a harsher penalty. The judge may reduce your charges if you can prove such conduct.
Even though some weapons are legal in California, they could become illegal under specific circumstances like increasing the capacity of a magazine or changing the type of ammunition. Facing criminal charges for carrying a loaded firearm, selling prohibited firearms, and possessing a firearm when you are a convicted felon, among other firearm-related charges, could impact your life.
If your case goes to trial, you may need to undergo a long and complex legal process that will result in severe punishment after a conviction. If you or a loved one faces charges for contravening one or more statutes on prohibited weapons, it would be wise to seek the guidance of a knowledgeable criminal attorney. If you need legal advice and representation in Bakersfield, CA, we invite you to contact Koenig Law Office today at 661-793-7222.
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