Penal Code § 25850 PC - Carrying a Loaded Firearm
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1. What is Penal Code§ 25850 PC?
Penal Code § 25850 PC Law Reads As Followed:
A person is guilty of carrying a loaded firearm when they carry a loaded firearm on their person or in a vehicle while in any public place or on any public street in an incorporated city or any prohibited area where discharging a firearm is illegal.
2. What Are Examples of Penal Code § 25850 PC?
Penal Code § 25850 PC makes it a crime to carry a loaded firearm in public. Whether carried openly or concealed, a loaded firearm in a public place poses potential safety risks, which is why California enforces strict regulations against this offense. To better understand how this law is applied, here are several real-world examples of scenarios where someone might violate Penal Code § 25850 PC.
1. Loaded Gun in a Vehicle
A driver keeps a loaded handgun under their car seat. During a routine traffic stop, a police officer discovers the weapon. The driver admits they knew the firearm was there but does not have a concealed carry permit.
Why It Violates the Law: Carrying a loaded firearm in a vehicle in a public area without proper authorization is prohibited under Penal Code § 25850 PC.
2. Carrying a Loaded Handgun in a Backpack
An individual brings a loaded pistol to a public park inside their backpack. Although the firearm is not visible, it is still considered “carrying” under the law.
Why It Violates the Law: Penal Code § 25850 PC applies to firearms carried in any manner, whether on the person or within a bag or container, as long as the firearm is loaded and in a public place.
3. Loaded Firearm Carried Openly
A person walks down a city street with a loaded revolver visible in a holster on their hip. Despite the firearm being openly displayed, California law prohibits carrying a loaded firearm in public without a valid permit.
Why It Violates the Law: Penal Code § 25850 PC prohibits carrying a loaded firearm in public, regardless of whether it is carried openly or concealed.
4. Hunting in a Prohibited Area
A hunter is carrying a loaded rifle while walking through a residential neighborhood on their way to a hunting spot. While hunting itself may be lawful in designated areas, carrying a loaded firearm in public in a residential area violates the statute.
Why It Violates the Law: The individual is in a public area where discharging a firearm is prohibited, making the act unlawful under Penal Code § 25850 PC.
5. Possession of a Loaded Gun Without Knowing It
A person borrows a friend’s car to run errands. Unbeknownst to them, the friend left a loaded firearm in the glove compartment. During a police stop, the firearm is discovered, and the driver is arrested.
Why It May Not Violate the Law: The driver’s lack of knowledge about the presence of the firearm could serve as a defense, as Penal Code § 25850 PC requires the individual to know they are carrying the firearm.
6. Carrying a Loaded Firearm in a Bar
An individual brings a loaded handgun into a bar for personal protection. They do not have a concealed carry permit, and the firearm is discovered after a physical altercation breaks out.
Why It Violates the Law: Carrying a loaded firearm in a public place, especially in a location where alcohol is served, violates Penal Code § 25850 PC and may carry enhanced penalties.
7. Loaded Gun Found During a Traffic Violation
A person is stopped for running a red light, and during the stop, the officer notices a loaded handgun on the passenger seat. The driver claims they are carrying the firearm for self-defense but lacks a concealed carry permit.
Why It Violates the Law: Carrying a loaded firearm in a public area, such as on a public road, without proper authorization is illegal under Penal Code § 25850 PC.
8. Carrying a Loaded Gun at a Protest
An individual attends a public protest with a loaded handgun in their waistband. Law enforcement detains the individual after noticing the firearm.
Why It Violates the Law: Carrying a loaded firearm in public, particularly in high-tension environments like protests, is a direct violation of Penal Code § 25850 PC.
9. Loaded Gun at a Public Park
A parent carries a loaded firearm while watching their child play soccer at a public park. Another parent notices the firearm and calls the police. The individual does not have a concealed carry permit.
Why It Violates the Law: Public parks are considered public places under Penal Code § 25850 PC, and carrying a loaded firearm there without authorization is illegal.
10. Loaded Firearm Carried by a Prohibited Person
A person with a prior felony conviction is found carrying a loaded firearm while walking in a public area. The firearm is discovered during a random police check.
Why It Violates the Law: In addition to violating Penal Code § 25850 PC, the individual is also in violation of Penal Code § 29800 PC (felon in possession of a firearm), which carries additional penalties.
11. Carrying a Loaded Firearm While Intoxicated
An individual with a valid concealed carry permit is found carrying a loaded handgun while heavily intoxicated at a public event. Despite having a permit, the person is arrested.
Why It Violates the Law: Carrying a loaded firearm while intoxicated can violate the conditions of a concealed carry permit and may result in additional charges under Penal Code § 25850 PC.
12. Concealed Firearm with Ammunition Nearby
A person is found carrying a firearm in their pocket with a loaded magazine stored in the same bag. Although the magazine is not inserted into the firearm, California law considers this situation a violation.
Why It Violates the Law: Under Penal Code § 25850 PC, a firearm is considered “loaded” if ammunition is readily accessible, even if it is not physically chambered or in the magazine.
3. What are Common Defenses Against Penal Code § 25850 PC?
Being charged with violating Penal Code § 25850 PC, which prohibits carrying a loaded firearm in public, can have severe consequences, including jail time, fines, and the loss of gun rights. However, facing such charges does not mean a guaranteed conviction. With the help of an experienced criminal defense attorney, several legal defenses may be used to reduce or dismiss the charges entirely.
In this article, we outline some of the most effective defenses against Penal Code § 25850 PC and explain how they may apply in different situations.
1. Lack of Knowledge About the Firearm
One of the key elements the prosecution must prove under Penal Code § 25850 PC is that the defendant knowingly carried a loaded firearm. If you were unaware of the firearm’s presence, you cannot be convicted under this statute.
Example:
A friend borrows your car and forgets to remove their loaded firearm from under the seat. During a traffic stop, the weapon is discovered, but you were unaware it was there.Defense Strategy:
Your attorney can present evidence, such as witness testimony or video footage, to demonstrate that you had no knowledge of the firearm.
2. The Firearm Was Not Loaded
Penal Code § 25850 PC applies only to loaded firearms. A firearm is considered loaded if there is a live round in the chamber or a magazine attached to the gun. If the firearm was not loaded at the time of the alleged offense, this element of the crime is not satisfied.
Example:
A person is found carrying a firearm in their vehicle, but upon inspection, the weapon is unloaded, and no ammunition is accessible.Defense Strategy:
Your attorney may work with forensic experts to prove that the firearm was not loaded at the time it was discovered.
3. The Firearm Was Stored Properly
California law allows individuals to transport firearms if they are stored in compliance with legal requirements. For example, a firearm is not considered “carried” if it is:
Locked in a secure container.
Stored in the trunk of a vehicle.
Example:
You are transporting an unloaded handgun in a locked case in your trunk while traveling to a shooting range. The firearm is discovered during a police stop, but it is stored according to legal requirements.Defense Strategy:
Evidence such as police bodycam footage or witness testimony can confirm that the firearm was stored in compliance with California law.
4. You Are Exempt from Penal Code § 25850 PC
Certain individuals and circumstances are exempt from prosecution under this law. If you fall under one of these exemptions, you cannot be convicted for carrying a loaded firearm in public. Exemptions include:
Active or honorably retired peace officers.
Federal law enforcement agents (e.g., FBI, DEA).
Members of the U.S. military acting within the scope of their duties.
Individuals with valid concealed carry permits.
Recreational hunters or shooters transporting firearms in accordance with state regulations.
Example:
A retired police officer with a lawful exemption is found carrying a loaded firearm in a public park. They are not violating Penal Code § 25850 PC due to their exemption.Defense Strategy:
Your attorney can present documentation proving your exempt status, such as a concealed carry permit or proof of law enforcement credentials.
5. Illegal Search and Seizure
The Fourth Amendment of the U.S. Constitution protects individuals from unlawful searches and seizures. If law enforcement discovers a firearm during an illegal search, the evidence may be deemed inadmissible in court.
Example:
An officer pulls you over for a minor traffic violation and searches your vehicle without probable cause or a warrant. During the search, they find a loaded handgun.Defense Strategy:
Your attorney can file a motion to suppress the evidence, arguing that the search violated your constitutional rights. If successful, the charges may be dismissed due to a lack of admissible evidence.
6. You Had No Intent to Carry the Firearm in Public
Intent matters in many criminal cases. If you had no intention of carrying the loaded firearm in a public place, this may be a valid defense.
Example:
While cleaning out your car in your driveway, you place a loaded firearm on the passenger seat. A police officer observes the firearm and charges you under Penal Code § 25850 PC, but you never intended to leave your private property.Defense Strategy:
Your attorney can argue that your actions were confined to private property and did not constitute carrying a loaded firearm in public.
7. The Firearm Was Carried in Self-Defense
While self-defense is not a typical defense under Penal Code § 25850 PC, it may apply in rare cases where the defendant reasonably believed they were in imminent danger and carrying the loaded firearm was necessary for their safety.
Example:
A person receives credible threats of violence and carries a loaded firearm to protect themselves while traveling to a safe location. The firearm is discovered during a police stop.Defense Strategy:
Your attorney must present evidence to prove that carrying the firearm was a reasonable response to a legitimate threat.
8. Mistaken Identity
In cases where someone is accused of carrying a loaded firearm, but there is no direct evidence tying the weapon to them, mistaken identity could be a valid defense.
Example:
A firearm is found in a shared vehicle, and the police charge the passenger without confirming who owns or knew about the gun.Defense Strategy:
Your attorney can argue that there is insufficient evidence to prove that you were the individual knowingly carrying the firearm.
9. Police Misconduct
If law enforcement officers engaged in misconduct, such as planting evidence or fabricating reports, this could invalidate the charges against you.
Example:
An officer claims they found a loaded firearm in your vehicle, but witness statements and bodycam footage contradict their report.Defense Strategy:
Your attorney can investigate the officer’s actions and present evidence of misconduct to challenge the validity of the charges.
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4. What are The Penalties for Violating Penal Code § 25850 PC?
Violating Penal Code § 25850 PC, California’s law against carrying a loaded firearm in public, carries significant legal consequences. Depending on the circumstances of the offense, the penalties range from misdemeanor charges to felony convictions. Additional factors, such as prior criminal history or the involvement of a stolen firearm, can elevate the severity of the penalties. Below, we break down the penalties for violating Penal Code § 25850 PC and examine the potential consequences for those convicted under this statute.
Misdemeanor Penalties
In most cases, a simple violation of Penal Code § 25850 PC is charged as a misdemeanor. This typically applies to first-time offenders without aggravating factors, such as a prior criminal record or the use of the firearm in another crime.
Penalties for a Misdemeanor Violation
Jail Time: Up to 1 year in county jail.
Fines: A maximum fine of $1,000.
Probation: The court may impose misdemeanor probation instead of jail time, which could include community service, firearms safety courses, or other conditions.
Wobbler Offenses
A violation of Penal Code § 25850 PC can be charged as a “wobbler,” meaning the prosecutor has the discretion to file the offense as either a misdemeanor or a felony. This typically happens when aggravating factors are present, such as:
The Defendant Is Not the Registered Owner of the Firearm:
If the firearm is loaded and the defendant is not listed as its registered owner with the California Department of Justice.Prior Convictions for Certain Offenses:
If the defendant has been previously convicted of specific misdemeanors or drug-related crimes.
Penalties for a Felony Wobbler
Jail Time:
16 months, 2 years, or 3 years in county jail.
Fines: A maximum fine of $10,000.
Probation: In some cases, the court may grant felony probation, which often includes strict conditions.
Straight Felony Offenses
Certain circumstances result in a mandatory felony charge for violating Penal Code § 25850 PC. These are known as “straight felonies” and carry harsher penalties. Situations that may result in a straight felony include:
Prior Felony Convictions:
If the defendant has a prior felony conviction or a firearm-related conviction.The Firearm Was Stolen:
If the defendant knew or should have known the firearm was stolen.Gang Affiliation:
If the defendant is an active participant in a criminal street gang.Prohibited Possession:
If the defendant is prohibited from owning or possessing firearms due to a prior conviction or restraining order.
Penalties for a Straight Felony
Jail Time:
16 months, 2 years, or 3 years in county jail.
Fines: A maximum fine of $10,000.
Mandatory Minimum Jail Sentence
In cases where the defendant has certain prior convictions, a mandatory minimum jail sentence applies. The minimum sentence is 90 days in county jail for defendants previously convicted of:
Penal Code § 245(a)(1): Assault with a deadly weapon.
Penal Code § 246: Shooting at an inhabited dwelling or vehicle.
Penal Code § 417: Brandishing a weapon.
Immigration Consequences
Violating Penal Code § 25850 PC can have severe immigration consequences for non-citizens. Under U.S. immigration law, firearm-related offenses are considered “deportable crimes.” A conviction under this statute may lead to:
Deportation from the United States.
Being deemed inadmissible for reentry into the country.
Non-citizens facing charges under Penal Code § 25850 PC should consult with an experienced criminal defense and immigration attorney to understand their legal options.
Loss of Gun Rights
A felony conviction under Penal Code § 25850 PC results in the permanent loss of gun rights in California. Individuals convicted of a felony are prohibited from owning, possessing, or purchasing firearms for life under Penal Code § 29800 PC (California’s felon with a firearm law).
Even a misdemeanor conviction may temporarily restrict the defendant’s ability to own or possess firearms.
Expungement of Penal Code § 25850 PC Convictions
If you are convicted under Penal Code § 25850 PC, you may be eligible to have the conviction expunged from your criminal record under Penal Code § 1203.4. An expungement allows you to withdraw your guilty plea or conviction and have the case dismissed.
Requirements for Expungement:
Successfully completing probation or jail time.
No new criminal offenses during the probation period.
Expungement can help mitigate the long-term consequences of a conviction, such as improving job prospects and restoring certain civil rights. However, it does not restore firearm rights.
Additional Sentencing Enhancements
Certain factors can lead to enhanced penalties under Penal Code § 25850 PC. These include:
Firearm Used in a Crime:
If the firearm was used in the commission of another crime, such as robbery or assault, the defendant may face additional charges and penalties.Three Strikes Law:
Violating Penal Code § 25850 PC may count as a “strike” under California’s Three Strikes Law if the offense involves a violent or serious felony. A second strike doubles the sentence, while a third strike results in a mandatory 25 years-to-life prison sentence.
Examples of Penalty Scenarios
Scenario 1: First-Time Offender
A person is found with a loaded firearm in their vehicle and has no prior criminal history. They are charged with a misdemeanor and face up to 1 year in county jail and a $1,000 fine.Scenario 2: Prior Convictions
A person with a prior felony conviction is caught carrying a loaded firearm in public. They are charged with a straight felony and face up to 3 years in county jail and a $10,000 fine.Scenario 3: Gang Affiliation
A gang member is found carrying a stolen, loaded firearm in public. The defendant faces straight felony charges, a potential gang enhancement under Penal Code § 186.22, and additional penalties.
5. What Are the Related Offenses To Penal Code § 25850 PC?
Penal Code § 25850 PC makes it a crime to carry a loaded firearm in public without proper authorization. In California, this law is often charged alongside or instead of other firearm-related offenses, depending on the circumstances of the case. These related offenses often involve similar conduct, such as the possession, transportation, or misuse of firearms. Below, we explore the most common related offenses to Penal Code § 25850 PC and how they differ from carrying a loaded firearm.
1. Penal Code § 25400 PC – Carrying a Concealed Weapon
Penal Code § 25400 PC criminalizes carrying a concealed firearm on your person or in a vehicle without a concealed carry permit.
Key Difference:
Penal Code § 25400 PC focuses on concealing the firearm, while Penal Code § 25850 PC addresses carrying a firearm that is loaded, whether concealed or openly carried.Example:
A person hides a loaded handgun in their waistband while walking through a shopping mall. They could face charges under both Penal Code § 25400 PC for concealment and Penal Code § 25850 PC for carrying a loaded firearm in public.
2. Penal Code § 26350 PC – Open Carry of an Unloaded Firearm in Public
Penal Code § 26350 PC prohibits openly carrying an unloaded firearm in public. This law was enacted to restrict open carry practices in California, even if the firearm is not loaded.
Key Difference:
Penal Code § 26350 PC applies to firearms carried openly and unloaded, while Penal Code § 25850 PC applies specifically to loaded firearms.Example:
A person openly displays an unloaded handgun in a hip holster while walking on a city street. This would violate Penal Code § 26350 PC but not Penal Code § 25850 PC unless the firearm is loaded.
3. Penal Code § 29800 PC – Felon in Possession of a Firearm
Penal Code § 29800 PC, also known as California’s “felon with a firearm” law, makes it illegal for individuals with a felony conviction to own, possess, or carry a firearm.
Key Difference:
Penal Code § 29800 PC applies specifically to individuals prohibited from firearm ownership, regardless of whether the firearm is loaded or carried in public.Example:
A person with a prior felony conviction is caught carrying a loaded firearm in a park. They could face charges under both Penal Code § 25850 PC and Penal Code § 29800 PC.
4. Penal Code § 27545 PC – Illegal Transportation of Firearms
Penal Code § 27545 PC makes it a crime to transport firearms without following California’s strict transportation laws. This includes ensuring that firearms are unloaded and stored in a locked container when transported in a vehicle.
Key Difference:
Penal Code § 27545 PC focuses on the transportation of firearms, while Penal Code § 25850 PC applies to carrying a loaded firearm in public.Example:
A driver is stopped by police, and officers find a loaded firearm under the driver’s seat. This could result in charges under both Penal Code § 25850 PC and Penal Code § 27545 PC if the firearm was not transported legally.
5. Penal Code § 417 PC – Brandishing a Weapon
Penal Code § 417 PC makes it illegal to draw, exhibit, or use a firearm in a threatening manner in the presence of another person.
Key Difference:
Penal Code § 417 PC involves the act of brandishing a firearm, while Penal Code § 25850 PC focuses on carrying a loaded firearm in public.Example:
During an argument, a person displays a loaded handgun to intimidate another individual. They could face charges for both Penal Code § 417 PC and Penal Code § 25850 PC.
6. Penal Code § 246 PC – Shooting at an Inhabited Dwelling or Vehicle
Penal Code § 246 PC criminalizes shooting a firearm at an inhabited house, vehicle, or aircraft. If someone is carrying a loaded firearm and discharges it unlawfully, they may face multiple charges.
Key Difference:
Penal Code § 246 PC involves the act of discharging a firearm, while Penal Code § 25850 PC involves carrying a loaded firearm in public.Example:
A person fires a loaded handgun at an occupied vehicle during a road rage incident. They could be charged under both Penal Code § 246 PC and Penal Code § 25850 PC.
7. Penal Code § 33215 PC – Possession of a Short-Barreled Rifle or Shotgun
Penal Code § 33215 PC makes it illegal to possess, manufacture, or transport short-barreled rifles or shotguns in California. If such a firearm is carried loaded in public, it may result in additional charges.
Key Difference:
Penal Code § 33215 PC focuses on prohibited types of firearms, while Penal Code § 25850 PC addresses carrying any loaded firearm in public.Example:
A person carries a short-barreled shotgun, loaded and concealed, in their vehicle. They could face charges under both Penal Code § 25850 PC and Penal Code § 33215 PC.
8. Penal Code § 30605 PC – Possession of an Assault Weapon
Penal Code § 30605 PC prohibits the possession of assault weapons in California. If someone carries a loaded assault weapon in public, they may face charges under multiple firearm statutes.
Key Difference:
Penal Code § 30605 PC specifically targets the possession of assault weapons, while Penal Code § 25850 PC applies to carrying any loaded firearm.Example:
A person is caught carrying a loaded assault weapon in a public park. This could lead to charges under both Penal Code § 25850 PC and Penal Code § 30605 PC.
9. Penal Code § 626.9 PC – Gun-Free School Zone Act
Penal Code § 626.9 PC makes it illegal to possess a firearm within 1,000 feet of a school zone without proper authorization. Violating this law while carrying a loaded firearm can lead to additional charges.
Key Difference:
Penal Code § 626.9 PC applies specifically to firearm possession near schools, while Penal Code § 25850 PC governs the carrying of loaded firearms in any public area.Example:
A person is found carrying a loaded handgun on a public sidewalk near a school. They could face charges under both Penal Code § 25850 PC and Penal Code § 626.9 PC.
10. Penal Code § 26500 PC – Unlicensed Sale of Firearms
Penal Code § 26500 PC makes it a crime to sell, lease, or transfer firearms without a valid license. If someone carries a loaded firearm for the purpose of an illegal sale, they may face additional charges.
Key Difference:
Penal Code § 26500 PC targets the unlawful sale of firearms, while Penal Code § 25850 PC focuses on carrying loaded firearms in public.Example:
A person is caught carrying a loaded firearm while attempting to sell it illegally. They could be charged under both Penal Code § 25850 PC and Penal Code § 26500 PC.
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