Illegally carrying a concealed firearm in California

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. An example is where 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.

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.

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.

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

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.”

While not technically a “defense” to the charge, 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. 

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 punishable as a felony

-If gun is stolen 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 the concealed carry laws is a “wobbler”-meaning that it can count as either a misdemeanor or a felony-in the following circumstances:

-When the defendant has suffered a prior misdemeanor conviction for a crime against a person or property (but does not have any of the “priors” described above that would transform their case into a “straight felony”)

-When the defendant has been convicted of a misdemeanor narcotics or dangerous drug offense (but does not have any of the “priors” described above that would transform their case into 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.

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, however-even for a felony conviction.

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 $1000 in fines. As with felonies, probation can be imposed as well.

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.