Facing Criminal Charges For

Gun Related Crimes?

The Sooner You Act, the Stronger Your Defense Will Be. 

Who May Possess a Gun in California?

California gun laws allow most adults age 21 and older in the state to buy a firearm without a license.

Unless you are prohibited by law from owning a handgun (as set forth below), you may legally keep a gun within your house or a place of business that you own.3 You may also legally carry a gun from place to place in a locked container.

People Prohibited From Possessing a Gun In California:

The following people are generally prohibited from acquiring or possessing a gun in California:

  1. felons (that is, anyone convicted of any felony offense in any jurisdiction),

  2. persons who are addicted to narcotics,

  3. persons with two (2) or more convictions under Penal Code 417, California's law against brandishing a weapon,

  4. persons convicted of certain misdemeanor offenses (such as a violation of Penal Code 273.5),

  5. persons who suffer from mental illness (people placed on two involuntary psychiatric holds in a year get a lifetime gun ban), and

  6. people under 18 (people under 21 may not purchase a gun).

Note that California red flag law also allows coworkers, employers and teachers to seek restraining orders to remove guns from the possession of potentially dangerous people.

Penal Code 29810 requires that people convicted of the requisite crimes must relinquish their firearms to authorities. If you are prohibited from owning a gun, you are also prohibited from owning ammunition.

Anyone else may possess a firearm or ammunition (other than armor piercing ammunition). However, in order to purchase a handgun, you must possess a valid handgun safety certificate.

 

If you have the legal right possess a gun, there are several ways to exercise your Second Amendment right to bear arms.

 

Penal Code 26150 and 26155 PC -- California Concealed Firearm Permits:

In California, firearm permits are authorized under Penal Code 26150 and 26155 PC, permits to carry a concealed firearm. These licenses entitle you to carry a "pistol, revolver, or other firearm capable of being concealed upon your person".   The permits are issued by your local sheriff or chief of police department.  They require a showing that:

  1. You are of good moral character,

  2. Good cause exists for issuance of the license,

  3. You are a resident of that city, and

  4. You have completed a prescribed course of firearms training.

 

If you receive a permit to carry a concealed firearm, you may legally carry a loaded, concealed gun.  However, you must comply with the terms and conditions outlined in your permit.

 

In February of 2014, a Federal Court ruled--in the landmark case of Peruta v. San Diego County--that the "good cause  requirement" for concealed carry permits in California is unconstitutional. That holding is currently being appealed. But if it is allowed to stand, then California law on concealed weapons permits could change drastically in the near future.

 

Also note that California has rules about transporting firearms and gun storage laws.

Licensed sellers of firearms and weapons:

Penal Code 26700 PC sets forth the requirements to be a licensed dealer of firearms.

Penal Code 26500 makes it a misdemeanor to sell, lease, or transfer a gun without a license. Violators face up to:

  1. One (1) year in county jail; and/or

  2. A maximum $1,000 fine;

 
California Laws Against Possessing or Carrying Firearms

Numerous California gun laws prohibit possessing or carrying firearms under certain circumstances.

You face criminal penalties if you:

  • Possess or carry an illegal firearm, or

  • Illegally carry or possess an otherwise legal firearm.

Some of the most relevant California firearm offenses include (but are not limited to):

 

Penal Code 29800 PC -- California's "felon with a firearm" law:

Penal Code 29800 PC, California's felon with a firearm law, prohibits three groups of people from owning or acquiring guns:

  1. convicted felons,

  2. anyone convicted of specific misdemeanors, and

  3. narcotic drug addicts.

 

Note that federal law prohibits gun ownership by people in additional categories, including:

  • Anyone under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one (1) year,

  • Anyone who has been discharged from the military under dishonorable conditions,

  • illegal aliens,

  • Anyone who has renounced his or her US citizenship,

  • Anyone under a court order for a stalking crime, and

  • Fugitives from justice.

Penalties for being a felon with a firearm in California

 

If you fall within one of the groups mentioned above and you:

  • own,

  • possess,

  • purchase, or

  • receive

a gun, your gun rights can be revoked for a minimum of 10 years. In some cases, your gun rights can be revoked for life. If you are a juvenile, you will not be able to own a gun until you are 30 years old.

Penal Code 25400 PC -- California's "Carrying a Concealed Firearm" Law:

 

California Penal Code 25400 PC is California's "carrying a concealed firearm" law. This statute makes it a crime to carry a concealed firearm on your person or in a vehicle. To convict you under this law, prosecutors must prove that you knew you were carrying a concealed firearm.If, for example, someone left his/her gun under the passenger seat of your car without your knowledge, you aren't guilty of this offense.

 

In addition, you may transport a handgun you legally own or possess as long as it is:

  1. unloaded, and

  2. carried either:

    • within a motor vehicle and locked in the trunk, or in a locked container within the vehicle; or

    • by you directly to or from any motor vehicle for any lawful purpose and within a locked container.

 

Non-concealable firearms (rifles and shotguns) are not covered by Penal Code 25400.  They do not need to be transported in a locked container.  However, they must be unloaded while they are being transported. Penalties for carrying a concealed firearm in California Absent aggravating circumstances, carrying a concealed firearm in violation of California Penal Code 25400 PC is a misdemeanor.

 

 If convicted of misdemeanor carrying a concealed firearm, you face:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

 

Violation of Penal Code 25400 becomes a felony ("straight" felony), however, if:

  1. you have a prior felony conviction or conviction for a California firearm offense,

  2. the firearm is stolen and you knew... or had reasonable cause to believe... that it was stolen,

  3. you are actively involved in a criminal street gang,

  4. you do not lawfully possess the firearm,

  5. you are prohibited from possessing a firearm under Penal Code 29800 PC, California's felon with a firearm law, or

  6. you are prohibited from possessing a firearm under Penal Code 29900 PC for committing... or attempting to commit... a violent offense.  Offenses deemed violent for purposes of this section include (but are not limited to):

    • Murder,

    • Rape,

    • Lewd acts on a child,

    • Robbery,

    • Kidnapping, and

    • Carjacking.

 

Felony carrying a concealed firearm is punishable by:

  • 16 months, or two or three years in county jail, and

  • a maximum $10,000 fine.

 

Under two circumstances, violation of Penal Code 25400 PC is a wobbler:

    1. you have a prior misdemeanor conviction for a crime against a person or property, or involving narcotics or dangerous drugs,

OR

  1. both of the following:

    • the firearm is loaded (or the ammunition is readily accessible), AND

    • you are not the registered owner of the gun.

 

Prosecutors can choose to charge a wobbler offense as either a misdemeanor or a felony.

If your wobbler violation for carrying a concealed firearm is charged as a misdemeanor you face:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

 

If the wobbler is charged as a felony, you face:

  1. 16 months, or two (2) or three (3) years in county jail, and/or

  2. a maximum $10,000 fine.

 

In addition, if you have previously been convicted of a felony or a California firearm offense, a violation of Penal Code 25400 carries a minimum three (3) month county jail sentence.

And you will serve between three (3) and six (6) months in a county jail if you have a prior conviction for:

If you are convicted under Penal Code 25400 PC, you may also lose your weapon.

 

California Penal Code 25850 PC -- "carrying a loaded firearm in public"

Penal Code 25850 PC, California's "carrying a loaded firearm in public" law, prohibits just that...carrying a loaded firearm in public. This law also makes it a crime to carry a loaded firearm in a car (other than in the trunk or a locked container). A firearm is considered loaded when there is an unexpended cartridge or shell attached in any manner to the firearm.  This includes... but is not limited to... in the firing chamber or a magazine or clip attached to the firearm. And while it may seem illogical or unjust, prosecutors can charge you with this offense even when the gun is inoperable.

Note additionally that California has no general "open-carry" law.

"Open carry" refers to the practice of openly carrying weapons (as opposed to carrying concealed weapons).48

As of January 1, 2012, it is illegal to openly carry a gun in California ... whether loaded or unloaded... unless you have a concealed firearms permit.

But Penal Code 25850 does require that you knew you were carrying a loaded firearm. If you didn't know you had a loaded gun on your person or in your car, you are not guilty of this offense.

Punishment for carrying a loaded firearm in violation of Penal Code 25850 is the same as for carrying a concealed firearm under Penal Code 25400.

And if your gun is both loaded and concealed... you can be prosecuted under both statutes. That is, unless you hold a valid firearm carry permit, which excuses both crimes.

Possession of Guns In Specific Places

 

Penal Code 626.9 PC -- possession of a firearm on school grounds:

Possession of a firearm on or near school grounds is punishable under Penal Code 626.9, California's Gun-Free School Zone Act.

Under Penal Code 626.9, it is a crime to:

  1. possess a firearm in or on the grounds of... or within 1,000 feet from the grounds of... a public or private school providing instruction in kindergarten or grades 1 to 12;

  2. discharge... or attempt to discharge... a firearm in a school zone, with reckless disregard for the safety of another;

  3. bring or possesses a loaded firearm upon the grounds of... or student or teacher housing for... a public or private university.

 

Violation of Penal Code 626.9 is punishable by as much as seven (7) years in county jail.

2.4.2 Government buildings – Penal Code 171c PC

 

Under Penal Code 171c, it is a wobbler offense to bring a loaded firearm into any of the following:

  • the State Capitol,

  • any legislative office,

  • any hearing room in which any committee of the Senate or Assembly is conducting a hearing,

  • the Legislative Office Building at 1020 N Street in the City of Sacramento, or

  • upon the grounds of the California State Capitol.

 

Possession of a loaded firearm in a government building in violation of Penal Code 171(c) is punishable:

  1. as a misdemeanor, by up to one year in county jail, and/or up to a $1,000 fine, or

  2. as a felony, by 16 months, or two or three years in county jail.

 

Penal Code 171c also makes it a misdemeanor to bring or possess any of the following in a government building:

  • unloaded firearms,

  • generally prohibited weapons,

  • stun guns,

  • BB guns or pellet guns, and

  • spot marker or paint guns

 

Possession of any of the foregoing in a government building is punishable by up to a year in county jail or a $1,000 fine. Or it may be punished by both jail AND a fine if the area is posted with a statement providing reasonable notice that prosecution may result from possession of such items.

 

The Governor's mansion – Penal Code 171d PC

Penal Code 171d PC makes it a wobbler to bring or possess a loaded firearm within or on the grounds of:

  • the Governor's Mansion or any other residence of the Governor,

  • the residence of any other constitutional officer, or

  • the residence of any Member of the Legislature.

 

Violation of Penal Code 171d is punishable:

  1. as a misdemeanor, by up to one year in county jail, and/or up to a $1,000 fine, or

  2. as a felony, by 16 months, or two or three years in county jail.

 

Airports and passenger vessel terminals – Penal Code 171.5 PC:

Under Penal Code 171.5 PC, it is a misdemeanor to knowingly possess, within any sterile area of an airport or a passenger vessel terminal:

 

Possession of any of these guns within the sterile (post-security check) area of an airport or a passenger vessel terminal is punishable by:

  1. up to six months in county jail, and/or

  2. a fine of up to $1,000.

2.4.5. Public transit facilities – Penal Code 171.7 PC

 

Penal Code 171.7 PC makes it a misdemeanor to knowingly possess within any sterile area of a public transit facility:

  • a firearm,

  • an imitation firearm,

  • a taser or stun gun,

  • a BB or pellet gun, or

  • a spot marker or paint gun.

 

The sterile area must, however, be posted with a statement providing reasonable notice that prosecution may result.

Public transit facilities transport members of the public for hire.  They include (but are not limited to):

  • streetcars,

  • buses,

  • light rail systems,

  • rapid transit systems,

  • subways, and

  • trains.

 

Possession of one of the listed guns under Penal Code 171.7 is punishable by:

  1. up to six months in county jail, and/or

  2. a fine of up to $1,000.

Penal Code 16590 PC -- California's ban on "generally prohibited weapons"

Penal Code 16590 PC makes it a crime to:

  • manufacture or cause to be manufactured,

  • import into the state,

  • keep for sale,

  • offer or expose for sale,

  • give,

  • lend, or

  • possess

any "generally prohibited weapon".

"Generally prohibited weapon" includes various types of firearms and firearm accessories including (but not limited to):

  • camouflaging firearm containers,

  • cane gun,

  • firearms that are not immediately recognizable as firearms,

  • large-capacity magazines,

  • multiburst trigger activators,

  • short-barreled rifles and short-barreled shotguns,

  • unconventional pistols,

  • undetectable firearms,

  • wallet guns, and

  • zip guns.

Possession of any generally prohibited weapon is a "wobbler" offense. It is punishable by loss of the weapon and:

  1. As a misdemeanor, by a minimum three (3) month to a maximum one (1) year jail sentence, or

  2. As a felony, by 16 months, two (2) years, or three (3) years in county jail.

 

Penal Code 30600 PC -- California's ban on assault weapons and rifles:

Penal Code 30600 PC is California's ban on assault weapons and rifles. It punishes manufacturing, selling, and/or possessing assault weapons and .50 BMG rifles68 without a permit. A ". BMG rifle" is a center fire rifle that can fire a .50 BMG cartridge and that is not an assault weapon or a machine gun.

 

The California Penal Code defines over 50 specific guns that count as assault weapons.

 

Some examples of assault weapons include:

  • all AK series rifles,

  • Uzis, and

  • Colt AR-15 series semiautomatic rifles.

 

Penalties for possession or sale of assault weapons or .50 BMG rifles

Possession of an assault weapon is a wobbler, punishable generally:

  1. As a misdemeanor, by up to one (1) year in county jail, or

  2. As a felony, by 16 months, two (2) years, or three (3) years in
    county jail.

Possession of a .50 BMG rifle is generally a misdemeanor, which can be punished by:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

 

It is also illegal to:

  • manufacture,

  • distribute

  • transport,

  • import into the state,

  • sell,

  • give, or

  • lend

an assault weapon or .50 BMG rifle.

 

Such actions constitute a felony, punishable by four (4), six (6), or eight (8) years in county jail.

In addition, if you transfer, lend, sell, or give any assault weapon or.50 BMG rifle to a minor, you will receive a sentencing enhancement of one (1) year of additional time... in addition and consecutive to the punishment for selling or transferring the weapon.

 

Armor-piercing ammunition:

California Penal Code 30315 PC makes it a crime to possess armor-piercing ammunition.

Possession of armor-piercing ammunition is a wobbler.  Punishment is either:

  • Up to one (1) year in county jail, or

  • 16 months, two (2) years, or three (3) years in county jail;

and/or a fine not to exceed $5,000.79

 

Silencers:

California Penal Code 33410 PC makes possession of a silencer a felony.

Possession of a silencer is punishable by:

  1. 16 months, two (2) years, or three (3) years in county jail; and/or

  2. a fine not to exceed $10,000.81

 

Stun Guns:

California Penal Code 22610 PC makes possession of stun guns by most people legal.  It is illegal to own a stun gun, however, if :

  1. You have been convicted in any jurisdiction of"

    1. any crime involving an assault, or misuse of a stun gun under Section 244.582 ;

    2. a felony, or

  1. you are addicted to any narcotic drug; or

  2. you are a minor, unless you are at least 16 years of age and you have the written consent of your parent or legal guardian.83

The first violation of Penal Code 22610 is a public offense punishable by a $50 fine.

 

Subsequent violations are a misdemeanor, punishable by:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

 

Laser scopes and laser pointers:

Under Penal Code 417.25, it is a misdemeanor, other than in self-defense, to aim or point a laser scope or laser pointer at someone:

  1. in a threatening manner, and

  2. with the specific intent to cause a reasonable person fear of bodily harm.

 

A "laser scope" is defined as:

  1. a portable battery-powered device capable of being attached to a firearm, and

  2. capable of projecting a laser light on objects at a distance.85

For purposes of this law, the laser scope need not be attached to a firearm.

 

A "laser pointer" is:

  1. any handheld laser beam device or demonstration laser product,

  2. that emits a single point of light amplified by the stimulated emission of radiation that is visible to the human eye.

Violation of Penal Code 417.25 is punishable by up to 30 days in a county jail.

 

California Penal Code 417.26 makes it a crime to point a laser scope or laser pointer at a peace officer:

  1. with the specific intent to cause the officer apprehension or fear of bodily harm, and

  2. if you know, or reasonably should know, that the person at whom you are aiming or pointing the laser scope or pointer is a peace officer.

Violation of Penal Code 417.26 PC is a misdemeanor.  A first offense is punishable by up to six (6) months in a county jail. Subsequent violations are punishable by county jail sentences of up to one (1) year.

 

California Laws Against Using a Firearm

 

While illegally carrying a firearm can be quite serious, illegally using a gun is even more so.

The following are some common California laws involving the illegal use of a firearm.

3.1. Penal Code 417 PC -- California's "brandishing a weapon" law

 

Penal Code 417 PC, California's "brandishing a weapon" law, prohibits "drawing, exhibiting, or using a firearm or deadly weapon". If you "brandish" a weapon or firearm in a rude, angry, or threatening manner, prosecutors could charge you with this offense. It isn't necessary that you actually intend to cause any harm or that the alleged victim even sees your weapon.91 The crime is complete once you draw, exhibit, or use the weapon in a rude, angry, or threatening manner.

 

Brandishing a weapon under Penal Code 417 may be punished as:
a misdemeanor, a wobbler, or a straight felony.

Misdemeanor violations... and corresponding penalties... include:

  1. Brandishing  a  pistol, revolver, or other firearm capable of being concealed upon the person... in a rude, angry, or threatening manner... in a public place:

    1. a maximum $1,000 fine.

    2. a minimum three (3) month, to a maximum one (1) year, jail sentence, and/or

  1. Brandishing any other firearm... or brandishing a firearm in other than a public place... in the same manner:  not less than three (3) months in county jail.

  2. Brandishing an imitation firearm: not less than 30 days in county jail.

 

Wobbler violations of brandishing a weapon under Penal Code 417 (and the related code sections that follow) include:

  1. brandishing a firearm upon the grounds of a child day-care center while that center is open;

  2. brandishing a firearm in the immediate presence of a peace officer engaged in the performance of his/her duties;96 and

  3. brandishing a firearm against the occupant of a motor vehicle.97

 

These violations are punishable:

  1. As a misdemeanor, by a minimum three (3) month, to a maximum one (1) year, jail sentence, or

  2. As a felony, by 16 months, two (2) years, or three (3) years in California state prison.

 

In addition, brandishing a weapon against the occupant of a motor vehicle carries a possible fine of up to $3,000.98

Finally, under Penal Code 417.8, it is a felony to draw or exhibit any firearm... whether loaded or unloaded... with the intent of resisting or preventing arrest. Violations are punishable by two (2), three (3), or four (4) years in state prison.

 

Penal Code 417.6 PC – inflicting bodily injury while brandishing a firearm:

You are guilty of a "wobbler" if you intentionally inflict serious bodily injury while:

  1. brandishing a fiream (Penal Code 417 PC), or

  2. brandishing a firearm while resisting arrest (Penal Code 417.8 PC).

 

For purposes of Penal Code 417.6, "serious bodily injury" means a serious impairment of physical condition.  Such impairment can include (but is not limited to):

  • loss of consciousness;

  • concussion;

  • bone fracture;

  • protracted loss or impairment of function of any bodily member or organ;

  • a wound requiring extensive suturing; and

  • serious disfigurement.

 

Intentional infliction of serious bodily injury while brandishing a weapon is punishable:

  1. As a misdemeanor, by up to one (1) year in county jail, or

  2. As a felony, by 16 months, two (2) years, or three (3) years in California state prison.

And in addition to serving time, if you brandish a firearm, the gun (and vehicle, if applicable) may be confiscated.

 

California Penal Code 26100 PC – California's "drive-by shooting" law:

Penal Code 26100 PC is properly known as "discharging a firearm from a motor vehicle".  It is usually referred to, however, as California's "drive-by shooting" law.

Penal Code 26100 prohibits:

  1. knowingly allowing another person to bring a gun into a car you own or are driving,

  2. knowingly allowing another person to discharge a gun from within a car you own or are driving,

  3. willfully and maliciously shooting at another person from within a car, and

  4. willfully and maliciously firing a gun from within a car.

 

Although this offense is referred to as "drive-by shooting," there is no requirement that the car be moving.  If a gun is in your car... or shots are fired from within it, you are guilty of this crime.Depending on the circumstances, violation of Penal Code 26100, California's "drive-by shooting" law, can be either a misdemeanor or a felony.

 

Penalties if you are the driver or owner of the vehicle:

If you drive or own a car and you allow a passenger to carry a gun in the car, you are guilty of a misdemeanor.  A misdemeanor drive-by shooting offense is punishable by:

  1. up to six (6) months in a county jail, and/or

  2. a maximum $1,000 fine.

 

Driving or owning a car and allowing a passenger to discharge a firearm from it is a "wobbler offense".  If convicted of the charge as a misdemeanor, you face:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

If convicted as a felony, the punishment is:

  1. 16 months, or two, or three years in the California state prison, and/or

  2. up to $10,000 in fines.

 

Penalties For "Shooters"

 

Discharging a firearm from within a car is a "wobbler".  If you are convicted of a misdemeanor violation, you face:

  1. up to one (1) year in a county jail, and/or

  2. a maximum $1,000 fine.

 

If convicted as a felony, however, the punishment is:

  1. 16 months, or two, or three years in the California state prison, and/or

  2. up to $10,000 in fines.

 

And if you or someone in your vehicle discharges a firearm at another person, it is an automatic felony.  If convicted of this offense, you face:

  1. three, five, or seven years in the state prison, and

  2. a maximum $10,000 fine.

 

California Penal Code 245(a)(2) PC -- assault with a firearm:

Penal Code 245(a)(2) PC, California's  "Assault With a Firearm" law, prohibits assaulting someone with a firearm.

Penal Code 240 PC defines "Assault" as the unlawful attempt... coupled with the present ability... to commit a violent injury on the person of another."

 

Under Penal Code 245(a)(2), it is not necessary that you actually injure someone.  All that is required is an attempt to commit a violent injury. You don't even need a specific, identifiable victim to be guilty of violating this law.  If, for example, you fire a gun into a crowd, you can be charged with assault with a firearm.

Punishment for assault with a firearm depends on the type of firearm and victim.

 

Assault with a machine gun, assault weapon, or .50 BMG rifle .50 BMG rifle:

Assault with a machine gun, assault weapon, or .50 BMG rifle is a felony in California.  It is punishable by four (4), eight (8), or 12 years California state prison.

 

Assault with a semiautomatic firearm:

Assault with a semiautomatic firearm is also a felony. It is punished by three (3), six (6), or nine (9) years in state prison. A "semiautomatic firearm" extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.

 

Assault with other types of firearms:

Assault with any other type of firearm is a wobbler.  Wobbler violations of Penal Code 245(a)(2) PC are punishable:

  1. As a misdemeanor, by not less than six (6) months, and not more than one (1) year, in county jail, or

  2. As a felony, by two (2), three (3), or four (4) years in California state prison.

 

Assault with a firearm against a peace officer:

If you know... or reasonably should know that your alleged victim is a peace officer engaged in the performance of his or her duties, assault with a firearm must be charged as a felony.  Your state prison sentence will depend on the type of gun used:

  1. semiautomatic firearm: five (5), seven (7), or nine (9) years;116

  2. machine gun, assault weapon, or .50 BMG rifle: six (6), nine (9), or 12 years; or

  3. any other firearm: four (4), six (6), or eight (8) years.

And in all cases of assault with a firearm under Penal Code 245, in addition to other penalties, the weapon may be confiscated.

 

Assault against school employees:

Assaults against school employees can be charged under Penal Code 245, above, if applicable.  Or they can be charged under Penal Code 245.5.  This law makes it a crime to assault someone that you know... or reasonably should know... is a school employee, while that person is engaged in the performance of his/her duties.

 

Assault with any type of firearm against a school employee is a wobbler, punishable as follows:

  1. As a misdemeanor, in county jail for not less than six (6) months and not more than one (1) year; or

  2. As a felony, by four (4), six (6), or eight (8) years in state prison.

 

Assault with a stun gun or taser against a school employee is punishable:

  1. As a misdemeanor, in county jail for not more than one (1) year; or

  2. As a felony, by two (2), three (3), or four (4) years in state prison.121

 

Penal Code 246 and 247 Shooting at dwellings, vehicles or aircraft:

Penal Code 246 PC -- shooting at an inhabited or occupied dwelling or vehicle

Penal Code 246 PC California's law against shooting at an inhabited or occupied dwelling, or vehicle punishes shooting at:

  1. an inhabited house,

  2. an occupied building,

  3. an occupied car, or

  4. an inhabited camper.

"Inhabited" means lived in, even if the occupants are not home.

 

Shooting directly "at" one of these targets isn't even necessary.  Prosecutors can charge you with Penal Code 246 for simply shooting in close proximity to an inhabited dwelling, occupied building, or occupied car. And on that note, prosecutors can also charge you even if you don't personally do the shooting.  That is, if you aid or abet the shooter in his/her efforts, you can be found guilty of this crime. Violation of Penal Code 246 PC is a felony, punishable by three (3), five (5), or seven (7) years in state prison.

 

Penal Code 247b PC -- shooting at an uninhabited or unoccupied dwelling, aircraft or vehicle:

Penal Code 247 makes it a crime to willfully and maliciously discharge a firearm at:

  • an unoccupied aircraft;

  • an unoccupied motor vehicle; or

  • an uninhabited building or dwelling house.

 

This law is similar to Penal Code 246, but applies to uninhabited dwellings and unoccupied vehicles.  It also applies to unoccupied aircraft. Malicious discharge of a firearm at an unoccupied aircraft is a felony.  It is punishable by 16 months, or two (2) or three (3) years in state prison. Malicious discharge of a firearm at an unoccupied dwelling is a wobbler.  It can be punished by up to one (1) year in county jail, or 16 months, or two (2) or three (3) years in state prison. The law does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner.

 

Penal Code 247.5 PC -- malicious discharge of a laser at an occupied aircraft:

Penal Code 247.5 PC makes it a crime to willfully and maliciously discharges a laser at an occupied aircraft.   The law applies to whether the aircraft is in motion or in flight.

Violation of Penal Code 247.5 is a wobbler, punishable:

  1. as a misdemeanor, by:

    1. by a fine of one thousand dollars ($1,000), or

    2. not more than one year in county jail, or

  1. as a felony, by:

    • 16 months, two years, or three years in county jail, or

    • by a fine of two thousand dollars ($2,000).

 

Penal Code 246.3 PC -- grossly negligent discharge of a firearm or BB device:

BB gun with CO2 canisters and ball bearings

California Penal Code 246.3 makes it a wobbler to:

  1. willfully discharge a firearm or BB device,

  2. in a grossly negligent manner,

  3. which could result in injury or death,

  4. to a person.

"BB device" means any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action. Penal Code 246.3 PC is closely related to Penal Code 246 PC.  Both offenses involve intentionally shooting a gun under circumstances that are likely to cause great bodily injury or death.  The difference is that PC 246 involves shooting at a direct target, whereas PC 246.3 does not.

Grossly negligent discharge of a firearm or a BB device is a wobbler, punishable by:

  1. up to one(1) year in county jail, or

  2. 16 months, two (2) years, or (3) three years in county jail.

 

Grossly negligent discharge of a BB device is a public offense, punishable by up to one (1) year in county jail.

 

 

Alternative and Additional Penalties, Punishment, And Sentencing for California Firearm Offenses

 

 

As you can see, violations of California firearms offenses -- especially wobblers -- are punished by a range of sentences.

 

Judges look to four main factors to determine what penalty to impose:

  1. whether the offense is charged as a misdemeanor or a felony,

  2. the type of firearm used,

  3. your criminal history, and

  4. whether the offense subjects you to any California firearm sentencing enhancements.

 

Misdemeanor (summary) or felony probation:

If you are convicted of a misdemeanor, a judge has the option to give you misdemeanor (summary) probation.    If given misdemeanor probation, you will serve little or no jail time.  The judge will, however, impose a number of conditions. You must adhere to these in order to avoid going to jail, or returning to jail. Such conditions might include (but are not limited to):

  • community service or labor (such as CAL-TRANS roadside work),

  • electronic monitoring or house arrest,

  • participation in counseling / treatment programs, and/or

  • paying victim restitution.

 

If you are convicted of a felony, you could be granted felony probation.  If sentenced to felony probation, you could serve up to one (1) year in county jail rather than a longer period in state prison. In addition to the base punishments for the underlying crime, there are sentencing enhancements that apply to California firearm offenses.  Some are rather obscure and limited in scope, while others cover a broad range of conduct and are frequently imposed. A sentencing enhancement "enhances" your prison sentence by making it longer.  If you are convicted of a gun offense and a corresponding sentencing enhancement, you serve the sentence imposed for the underlying felony... in addition to... the sentence imposed for the enhancement. You cannot be convicted of a sentencing enhancement by itself.  In order to suffer a sentencing enhancement, prosecutors must first convict you of an underlying felony charge. Let's take a look at the most common California sentencing enhancements.

 

Penal Codes 12022 and 12022.5 PC -- California's sentencing enhancements for personally using a gun

 can make your sentence as much as ten (10) years longer.  These laws subject you to anywhere from one (1) to ten (10) years in jail or prison... in addition and consecutive to... the sentence you receive for the underlying felony.

 

The length of the enhancement depends on three primary factors:

  1. whether you were personally armed with the gun or whether you personally used the gun,

  2. the type of firearm (that is, whether you used a "generic" handgun or whether you used an assault weapon or machine gun), and

  3. the underlying felony offense.

 

Penal Code 12022.53 PC, California's "10-20-life 'use a gun and you're done'" Law, is among the strictest in the nation.  However, this sentencing enhancement only applies to 19 enumerated serious or violent felony offenses and to any other felony offense that is "punishable by death or imprisonment in the state prison for life".  Liability under this law also extends to "attempts" to commit any of these felonies.

Felonies under this section include (but are not limited to):

  • murder,

  • kidnapping,

  • robbery,

  • carjacking,

  • rape and other sex crimes, and

  • lewd acts on a child.

 

California's "10-20-life" law subjects you to ten years in prison for "using" a gun, twenty years for firing a gun, and 25 years to life for killing or seriously injuring another person with a gun...and this is in addition and consecutive to the sentence you receive for the underlying felony conviction.

 

Penal Code 186.22 PC -- California's criminal street gang enhancement:

Penal Code 186.22 PC California's gang enhancement is also quite severe.  This law punishes gang members and their associates.  It applies when gang members commit crimes that are:

  • for the benefit of,

  • at the direction of, or

  • in association with

any criminal street gang,

AND

which are committed with the specific intent to

  • promote,

  • further, or

  • assist

in criminal conduct by gang members.

 

Penal Code 186.22 PC punishes individuals who are active participants in gang-related activity... even if they are not themselves gang leaders or, for that matter, even gang members. If convicted of the street gang sentencing enhancement, you could serve from two (2) addition years in prison to as much as a life sentence, depending on the underlying felony offense.

 

Penal Code 12022.2 PC -- commission of a firearm felony while possessing metal-piercing armor or wearing a bullet-proof vest:

Penal Code 12022.2 provides (at least until January 1, 2014)140 an enhancement for certain firearm-related felonies.

If:

  1. you commit any felony,

  2. while armed with a firearm, and

  3. you have in your immediate possession armor-piercing ammunition,

you will receive a sentence of three (3), four (4), or ten (10) years... in addition and consecutive to... the punishment for the underlying felony or attempted felony.

 

If you commit... or attempt to commit... a violent felony while wearing a bullet-proof vest, you can be punished by one (1), two (2), or five (5) years... in addition and consecutive to... the punishment for the underlying felony or attempted felony.

Penal Code 12022.3 PC -- use of a firearm during the commission of sex crimes:

Penal Code 12022.3 PC provides a sentencing enhancement for the use of a firearm during specified sexual offenses including:

  • mayhem,143

  • rape,

  • sodomy,

  • forced oral copulation, and

  • lewd or lascivious acts upon a child.144

 

For being armed with a firearm during the commission of one of these crimes, you will receive an additional term of one (1), two (2), or five (5) years in state prison. For using a firearm in the commission of the crime, the enhancement is three (3), four (4), or ten (10) years.

 

Penal Code 12022.4 -- aiding or abetting a felony with a firearm:

If, during the commission -- or attempted commission -- of a felony, you offer someone else a gun for the purpose of helping them commit the crime, you may receive an enhanced sentence under Penal Code 12022.4.146

In addition to your sentence for the underlying felony -- or attempted felony -- you will receive another one (1), two (2), or three (3) years in state prison.

 

Legal Defenses To Gun Charges in California:

Legal defenses to California firearms charges can vary from offense to offense.  Some legal defenses to California gun crimes include (but are not limited to):

 

You are legally permitted to carry a firearm:

If you have a license or permit for carrying a concealed weapon under Penal Code 26150 or 26155 PC, then carrying a gun generally does not violate the law. Similarly, if you are a licensed firearms dealer, carrying a gun may be legal. In either case, in order to prevail on this defense, you bear the burden of proving that you have a valid license.

 

You carried a firearm in self-defense:

You may be absolved of criminal liability for carrying a concealed firearm under California's self-defense laws. These apply if you reasonably believe that:

  1. your life is in "grave danger,"

  2. because of other people's specific threats or conduct which justified the basis for a court-ordered restraining order.

 

You were charged with assault, but you didn't have the ability to harm anyone:

In order for an assault with a firearm charge to stick, you must have actually had the ability to apply force likely to produce great bodily injury. If you couldn't actually have used a gun to harm someone, you are not guilty of assault.

 

Example:  On the way home from the firing range, you get into an argument at a red light with someone in the car next to you.  You tell him you have just come from the shooting range and make a "shooting" gesture with your thumb and forefinger.  When you pull out at a green light, a cop pulls you over.  You consent to a search of your vehicle.  The officer finds your gun in the car, but there is no ammunition in either the gun or the vehicle.  Because you were driving (and couldn't have pistol whipped someone in the other car) and because you couldn't have shot anyone, you have a possible defense to a charge of assault with a firearm.

 

You didn't know you were carrying a firearm:

Knowledge is a requirement of many gun offenses.  If you didn't know you were carrying a gun, for instance, you aren't guilty of carrying a concealed firearm.151

 

Example:  Someone hid a gun in your backpack without your knowledge.  On your way to school, you are stopped because you look like someone wanted for a crime. When the police search you, they find the gun.  Since you didn't know it was there, you aren't guilty of carrying a concealed firearm.

 

The gun was found during an illegal search:

The Fourth Amendment to the US Constitution protects you from unreasonable searches and seizures.152

In order for the police to legally search you or your car, they must have:

  • a valid California search warrant, which authorizes them to search you or your property OR

  • probable cause for a search (which means they have a reasonable belief you are engaged in criminal activity or pose a threat to threat to their safety),OR

  • your consent to search you or your  property.

 

If none of the foregoing applies, the cop may have violated your Fourth Amendment rights.

And if a firearm is discovered and confiscated during an illegal search, the weapon is inadmissible in court.155

Example:  A California Highway Patrol officer pulls you over running a stop sign.  You are pleasant, and you cooperate by promptly giving the officer your license and registration.   You have no outstanding warrants.  However, the officer chooses to search your car anyway and finds a firearm under the passenger seat. Since the officer had no probable cause to search your vehicle, the gun was found during an illegal search and is inadmissible in court.

 

Police Misconduct:

Police misconduct is a legal defense to most firearms charges.  If police misconduct is suspected, we can run a Pitchess motion to see whether others have made complaints about the officer in the past. If you are a victim of police misconduct, the prosecutor or judge may dismiss your charges.  Or, if the case goes forward, a jury may find you not guilty at trial.

Examples of police misconduct include (but are not limited to):

  • a cop plants a concealed firearm on your person or in your car;

  • an officer lies in the  police report;

  • an officer testifies falsely about the facts of your case;

  • your confession was coerced, or

  • your civil rights were violated in any other way.

 

 

Collateral Consequences of Firearm Convictions

 

Loss of your right to own or acquire firearms:

If you are convicted of any felony, your right to own, possess, or acquire a firearm will be revoked for life. Certain misdemeanor firearm offenses will also trigger the lifetime ban.  These include:

  • Penal Code 245(a)(2) PC, assault with a firearm,

  • Penal Code 246 PC, shooting at an inhabited dwelling, and

  • certain violations of Penal Code 417 PC California's "brandishing a weapon" law.157

 

Misdemeanor crimes of domestic violence can also cause you to lose your gun rights.  This is because there is a lifetime firearms ban for these crimes under federal law.There are also a variety of misdemeanor offenses that are unrelated to California gun offenses, but which trigger a ten-year firearms ban. If you are convicted of a felony involving a firearm, there is no way to restore your firearms rights. Otherwise, depending on the underlying charge that initiated your firearms ban, you may be able to restore your firearm right.

 

California gun rights by:

  1. having a wobbler felony reduced to a misdemeanor,

  2. obtaining a California Certificate of Rehabilitation and Governor's pardon, or

  3. if you are not eligible for a Certificate of Rehabilitation, obtaining a direct pardon from the Governor.160

 

California Penal Code 667 PC -- California's Three Strikes Law:

California Three Strikes Law isn't relevant to all California gun laws.  But any felony charges in which you personally use a firearm counts as a potential strike.

If you are subsequently charged with any felony and have a prior "strike" on your record, you will be considered a "second striker," and your sentence will be twice the term otherwise required by law. If charged with a third felony, and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California felony charges.

 

California firearm offenses and immigration:

If you are not a U.S. citizen, a California firearms conviction could additionally result in deportation. For more information about how California's gun laws affect aliens, please visit our article on California crimes that lead to deportation.

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Our criminal lawyer will give you a FREE initial meeting to discuss your case and recommend a course of action. Even one hour talking to a true professional can change the way you view your case. Don’t face a Gun Related Charge without representation. We at Monterey Peninsula Law Inc. are here to help.

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