Gun Possession Lawyer
Penal Code 25400—Illegally Carrying a “Concealed Firearm” in California
Like many states, California has a type of “concealed carry” law that makes it illegal to carry a concealed firearm in some circumstances. While many gun owners have a license to carry a concealed firearm, many others do not, and if you are caught carrying their firearm in a “concealed” manner prohibited by law, you might be facing criminal charges under California Penal Code Section 25400.
How can I be convicted of violating California’s “concealed carry” laws?
Under Penal Code Section 25400, you can be found guilty of unlawfully carrying a concealed firearm if the prosecution proves, beyond a reasonable doubt, that you:
1.Carried any firearm concealed within a car that you are driving or controlling
OR
2.Carried any firearm concealed on your person
OR
3.Concealed in a vehicle that you occupied any of the following:
a. A pistol
b. A revolver
c. Any firearm capable of being concealed upon the person.
Who is exempt from the “concealed carry law?”
As mentioned, the concealed carry law does not apply to people who have a “license” to carry a concealed firearm. Several other persons are exempt from Penal Code Section 25400 as well, including:
- Licensed firearm dealers (while acting in the lawful course of business)
- A guard or messenger of a common carrier or bank while employed in the transportation of money or other valuables.
- Members of the U.S Armed Services
- Authorized military or civil organizations who are using or transporting unloaded weapons for the purposes of their parades
- Members of a club organized for shooting practice at established target ranges, while at the ranges or transporting the firearms, there, unloaded.
- Honorably retired federal law enforcement officers (subject to local sheriff approval)
- Licensed hunters or fishermen while hunting, fishing, or transporting firearms to and from their expedition, unloaded.
Defenses to a Charge of Violating California’s Concealed Carry Laws
If you are caught with a “concealed” firearm and you are not a part of any of the above groups, then you can probably anticipate some charge for violating California Penal Code Section 25400. Fortunately, there are several defenses available in a concealed carry case.
You Did Not Know That the Gun Was There
The law is not meant to punish honest mistakes or accidents. As such, if you did not know that you were, in fact, carrying a concealed firearm at the time you were stopped, then you should not be convicted of violating the “concealed carry” laws. This argument usually works best in situations where the defendant is charged with carrying a concealed weapon inside a vehicle.
Car Example: Someone accidentally leaves their gun concealed inside their car, and then lends the car to a friend. The friend might not have realized that the owner’s gun was inside when he borrowed the car, and may not have noticed it until police discover the gun during a traffic stop. In that case, if the friend did not know that the gun was there, then they should be found “not guilty” of a concealed carry charge.
On-person example: There might even be some cases where a person does not realize that a gun is concealed on their person. Consider a situation where the defendant attends a party. He brings a backpack with him, and passes out after consuming drugs and alcoholic beverages that were available. While asleep, another partygoer sneaks their gun into the defendant’s backpack, hoping to conceal it from authorities. The defendant might not know that the gun is concealed inside his backpack while walking home after awakening, and so should probably be found “not guilty” at trial if the evidence shows this.
The Gun Was Properly Secured
Although Penal Code Section 25400 makes it a crime to conceal a firearm inside a vehicle, the law also establishes some parameters for proper gun storage in this situation.
When is it legal to carry a concealed weapon a vehicle?
Penal Code Section 25610 explains that it is not a “concealed carry” violation when:
- The defendant is at least 18 years old and otherwise not prohibited from possessing a firearm AND
- The gun is locked inside the trunk OR locked inside another locked container (other than the glove box) OR
- The gun is carried to or from a vehicle for a lawful purpose, inside of another locked container
You possessed the firearm in self-defense
California Penal Code Section 25600 establishes a “self defense” rule for concealed carry violations that occur during situations where restraining orders are involved. It states that a violation of the state’s “concealed carry” laws is justifiable when:
- The defendant reasonably believes that they are in “grave danger”
- Based on circumstances giving rise to a current restraining order against another person AND
- As part of that order, the other person has been found to be a threat to the defendant’s life or safety
In these cases, it becomes particularly important for your attorney to investigate the history of your relationship with the restrained person and how you came to believe that you were in “grave danger.”
Illegal search and seizure
While not technically a “defense”, a “concealed carry” charge could be dismissed if the court determines that the police did something improper in their investigation. More specifically, if police search or seize you illegally and recover a gun as a result, then a judge might order the gun “suppressed”, or “thrown out” of your case. With no firearm to present against you as evidence, the prosecution’s case against you might collapse.
Police need “reasonable suspicion” of criminal activity in order to stop and frisk a pedestrian or conduct a vehicle stop. This is a low standard, but it requires more than a mere “hunch.” Police must be able to specifically articulate a reasonable basis to believe that you were engaged in some criminal activity before stopping you. If, for example, you are stopped based on insufficient information like a vague, anonymous tip, or for no reason at all, then the court might rule that you were stopped illegally, and so any evidence obtained-such as a gun or any other contraband-would be suppressed.
To conduct a full “search” or to arrest you, police need “probable cause” that you had committed a crime or that evidence of a crime would be found in the area searched. This is also a low standard, but it is more exacting than probable cause. There are some cases where courts have found that police had adequate reasonable suspicion to justify a “stop”, but that a subsequent arrest and search were unsupported by probable cause. In those cases, evidence from the stop is probably admissible but anything gained from the arrest is still subject to suppression.
For these reasons, a proper defense of a “concealed carry” case should include a close examination of how and why the police conducted their investigation, and how they seek to justify each step.
Is Violating the Concealed Carry Laws a Felony or a Misdemeanor?
The severity of a “concealed carry” charge depends on several factors related to the case itself as well as your prior record.
A violation of California’s “concealed carry” law is a FELONY if:
- You have previously been convicted of any felonies
- Prior “violent firearm” offense punished as a felony
- If the gun was stolen and you knew or should have known, it was stolen
- Active participant in a criminal street gang
- Defendant is prohibited from possessing a firearm
A violation of concealed carry laws is a “wobbler”—meaning that it can count as either a MISDEMEANOR OR FELONY, in the following circumstances:
- When the defendant has been convicted of a misdemeanor conviction for a crime against a person or property (does not have any of the “priors” described-above, or it would become a “straight felony”).
- Convicted of a misdemeanor narcotics or dangerous drug offense (does not have any of the “priors” described above, or it would become a “straight felony”).
- When the firearm is loaded and the defendant is not the registered owner.
If the facts of a “concealed carry” case and the defendant’s prior record do not fit neatly into any of the above categories, then the charge is a “wobbler” and can be categorized as either a misdemeanor or a felony.
What are the penalties for violating California’s “concealed carry” laws?
FELONY CHARGES
As a FELONY, a violation of California’s “concealed carry” laws is punishable by:
- A period of sixteen (16) months, two (2) years, or three (3) years of incarceration.
- A fine of up to $10,000 is also possible.
The court can also decide to place the defendant on probation, even for a felony conviction.
MISDEMEANOR CHARGES
If charged as a MISDEMEANOR, a conviction for violating the concealed carry laws can be punished by:
- Up to one (1) year of incarceration and,
- $1,000 in fines.
As with felonies, probation can be imposed as well.
Is there a “mandatory minimum” for violation of California’s “concealed carry laws”?
Yes, and no. Penal Code Section 25400 sets forth a “mandatory” period of three (3) months incarceration for some defendants who are found guilty of illegally carrying a concealed firearm. However, this only applies when
- The defendant was previously convicted of any felony OR
- The defendant was previously convicted of a certain type of “violent firearms offense” OR
- The defendant was previously convicted of other California firearms offenses
Furthermore, the court is still free to impose a sentence less than three (3) months of incarceration. But to do so, it must first determine that the defendant’s case is “unusual” such that “the interests of justice would best be served” without imposing the three-month mandatory period.
If you are concerned that your concealed carry case falls into any of the above categories and you are worried that you might be “in the crosshairs” for a three-month mandatory jail sentence, consult your attorney closely on this issue. A well-prepared argument at sentencing can help convince the court that a mandatory jail period is not appropriate for your case.
Related Offenses
Penal Code 417 –Brandishing a Firearm
Penal Code 245(a)(2) –Assault with a Firearm
Penal Code 245(a)(1) –Assault with a Deadly Weapon
Hiring a Criminal Defense Attorney
If you have been charged with illegally carrying a concealed firearm in the San Francisco Bay Area, it is important to consult with an attorney right away. Our job it to reduce that stress and work with you in earning the best possible outcome, whether that be dismissal or a plea deal. If you are ready to discuss your case, contact our experienced attorneys at 1.833.8.NO. JAIL for a free and confidential consultation.
PC 245 is a wobbler, and it can be charged as a misdemeanor or felony.
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