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Penal Code 25850 PC Carrying a Loaded Firearm

Mar 21, 2019 | Criminal Defense

According to Penal Code 25850 PC, it’s illegal to carry a loaded firearm on a person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

Prosecutor Must Establish the Following Elements to Convict Defendant of Carrying a Loaded Firearm

The prosecutor must establish the following elements to successfully convict a defendant of carrying a loaded firearm under Penal Code 25850:

  • The defendant carried a loaded firearm on his person or in a vehicle;
  • The defendant was aware that he was carrying a firearm
  • Defendant was in a public place where it was unlawful to discharge a firearm.

Definition of Firearm for Purposes of Penal Code 25850 PC

California Penal Code 25850 PC defines a firearm as any device designed to be used as a weapon, from which a projectile is expelled through a barrel by the force of any explosion or other form of combustion. A firearm includes flare handguns, guns, shotguns, rockets, rifles, zip guns, and assault rifles.

Definition of Loaded Firearm for Purposes of Penal Code 25850 PC

Under Penal Code 25850 PC a firearm is loaded when there is an unexpended cartridge consisting of a case that holds a charge of powder and a bullet. Even if the firearm is not capable of being fired, it can still be considered loaded if it fits within the above characteristics. If a person carries a gun in a public place, a peace officer has the right to examine whether it is loaded or not.

Who is Eligible to Carry a Loaded Firearm in Public in California?

There is a number of individuals who are exempted from the prohibitions against carrying a loaded firearm in public.

  • Peace officers, active or honorably retired
  • Peace officers from another state, who are performing official activities in California
  • Federal law enforcement agents or officers
  • Members of the armed forces
  • POST certification (animal control persons, zookeepers, harbor police)
  • Legitimate hunters
  • Persons who conceal weapons permit
  • Security guard and private investigators

Some individuals from the list are only eligible to carry a loaded firearm under certain conditions. For example, hunters can carry loaded firearms to a designated hunting location if they are in a locked container. Target shooters can carry loaded guns at the target range areas.

Defenses to California Penal Code Section 25850 Charges

Defenses to California Penal Code Section 25850 charges include the following

  • The defendant was unaware of the presence of the firearm

Usually, this defense applies when the defendant was not carrying the gun on his person.  For example, if someone left a gun in his vehicle or in a bag that he was carrying. If the defendant did not know that he was carrying a loaded firearm, he cannot be found guilty of a violation of California PC Section 25850.

  • The firearm was not loaded

This law requires the firearm to be loaded. In case the clip was not attached or there was no bullet in the chambers, a person cannot be found guilty of this offense under Penal Code Section 25850.

  • The defendant was not in a public place or a prohibited area

For being convicted under PC 25850 defendant must have carried the loaded firearm in a public place, a prohibited area, or in an incorporated area. In case he carried the firearm in a private area he cannot be found guilty.

  • Self-Defense

According to California’s self-defense law, a person can carry a loaded firearm in case he reasonably believes that he or any other person is in imminent danger, and carrying the firearm is necessary for deflecting the threat.

What are the Penalties for California Penal Code Section 25850 Conviction?

Penalties for California Penal Code Section 25850 conviction can be either charged as a misdemeanor or felony and is also considered a “wobbler” offense in California.

What are the Penalties for Misdemeanor Penal Code 25850 Conviction?

The penalties for a misdemeanor Penal Code Section 25850 carrying a loaded firearm include:

  • Up to one year in county jail;
  • A fine of up to $1,000; and/or
  • Probation

Is Penal Code Section 25850 Considered a Wobbler Offense in California?

In California Penal Code Section 25850 is considered a wobbler offense. Depending on certain aggravating circumstances and particular circumstances of the case, carrying a loaded firearm can become a wobbler and can be prosecuted as either a felony or a misdemeanor.  The aggravating circumstances are the following:

  • Previous misdemeanor conviction against a person or a property
  • Previous misdemeanor conviction involving a narcotic or dangerous drug,
  • The loaded gun was not registered with the Department of Justice.

Penalties for Misdemeanor with Aggravating Factors Are the Same as for a Regular Misdemeanor

Penalties for a misdemeanor with aggravating factors are the same as for a regular misdemeanor. Penalties for a felony conviction under aggravating factors are the following:

  • 16 months, 2 or 3 years in county jail; and/or
  • A fine of up to $1,000

What are the Penalties for Felony Penal Code 25850 Conviction?

Penal Code lists other aggravating circumstances that elevate a Penal Code 25850 PC to a felony. These aggravating circumstances are the following:

  • The defendant had previous convictions for a felony or any other gun offense
  • The defendant had reason to believe that the gun he owned was stolen
  • Defendant unlawfully possessed the firearm or was otherwise prohibited to own it
  • The defendant was an active participant in a criminal street gang.

Penalties for Felony Penal Code 25850 Include

Penalties for felony Penal Code 25850 conviction include:

  • 16 months, 2 years, or 3 years in county jail; and/or
  • A fine of up to $10,000

Prior Firearm Convictions Enhancement

The defendant must also serve a minimum of three months in county jail if he has a prior conviction for shooting at an inhabited dwelling house or car (PC 246), assault with a deadly weapon (PC 254), and brandishing a weapon (PC 417).

Penal Code 25850 Defense Lawyer

For answers to any other questions you may still have about California Penal Code 25850 charges or to discuss your case confidentially with our team of experienced California criminal defense attorneys give us a call at 310-933-5171. Our lawyers in Glendale, Los Angeles County, CA, are highly dedicated to serving the needs of our clients.