Even though the constitution grants us the right to bear and keep firearms, different federal and state laws have been enacted to regulate the buying, possession, sale, manufacturing, exporting/importing, use, and trafficking of guns. These gun control statutes not only govern who can possess/own a firearm but also what guns are considered illegal or legal to possess/own and how to lawfully transport firearms. Failure to adhere to these laws will result in firearm-related charges.
In California, criminal charges that involve firearms are prosecuted and punished more severely. These kinds of charges often come with mandatory jail terms, or worse, lengthy prison terms. If you’ve been arrested in Riverside for a firearm-related offense, contact us at Riverside Criminal Defense Attorney Law Firm right away. We’re specialized in defending a wide array of firearm offenses for several years. Most of our firearm crime defense lawyers have worked as prosecutors and have criminal law knowledge and a demonstrable record of success. They are therefore recognized amongst the most skilled firearm crime defense attorneys in Riverside. Call us now for a cost-free consultation to know what you can expect and how we can help you obtain the best possible case resolution.
Gun and Weapon Offenses Overview
The second amendment to the U.S Constitution gives people the right to bear arms. Additionally, California firearm statutes allow most adults aged 21 years old and above to purchase, possess, and own a firearm. However, California laws place certain limits and restrictions on this right. For instance, they prohibit some individuals from owning or acquiring a gun and require California residents to apply for an FSC (Firearm Safety Certificate) before lawfully acquiring a firearm.
Gun and Weapon offenses arise when people violate the criminal laws designed to control the use and possession of firearms and other deadly weapons, such as explosives and specific knives. Therefore, considering this definition, firearm-related offenses don’t only involve actually pulling a gun on another person or threatening another individual with a knife, as most people believe. You may be convicted of a firearm crime only by possessing a firearm, even if you haven’t used it.
Levels of Gun Crimes
Like most California criminal charges, when facing weapon charges, your crime may be categorized as a straight misdemeanor, straight felony, or a wobbler. The categorization is based on the facts surrounding your case, your criminal history, and any other factor the prosecutor would consider, such as the deadliness of the weapon involved. A wobbler is a crime in which the DA has the discretion to press either felony or misdemeanor charges. Additional punishment may be imposed when gun enhancement statutes apply.
Misdemeanor weapon crimes carry a penalty of a maximum of a year in county jail and a fine that doesn’t exceed $1,000. Felony weapon crimes carry a penalty of between one to twenty years in prison. Gun enhancements are the additional punishment the judge can add to a sentence for an offense involving a gun. For instance, per gun enhancement laws, the judge will add ten years to your sentence if you’re convicted of possessing a gun, twenty years if you fired the gun, and over twenty-five years if your firearm-related offense resulted in death or injury.
As of 2019, judges have the discretion to remove gun enhancements, when before, these enhancements were mandatory. Since your sentence and possibly the next ten to twenty years of your life could be determined based only on the judge’s opinion, you want to seek the help of a lawyer who serves your best interest.
Types of Gun Offenses in California
Most California weapon offenses have to do with either illegally possessing a weapon or unlawfully using one. The most prevalent charges you may face include:
PC 417 – Brandishing a Firearm or Weapon
Per PC 417, it’s a criminal offense to brandish a gun or any other deadly weapon. Brandishing means exhibiting or drawing a weapon rudely or in a threatening manner when in another person’s presence. You do not need to have intended to hurt the person for you to be convicted. It is also not necessary that the person saw your weapon. All that counts is that you drew/exhibited a weapon threateningly or rudely.
In cases where you were merely showing off your new gun or weapon, but not threateningly or rudely, you cannot be guilty under PC 417. But note that if you exhibit or draw a deadly weapon during an argument with someone else, it’s considered an offense under PC 417. Under this law and other weapon-related laws, a deadly weapon refers to an object, substance, device, or instrument intended to be used in a manner that’s likely to cause death or significant bodily injury. In essence, a deadly weapon need not be a weapon— it could be a brick, baseball bat, or even a hockey stick.
Thus, the elements of the crime the prosecutor must prove beyond any reasonable doubt for a conviction to occur are:
- You had a firearm or deadly weapon.
- You angrily, rudely, or threateningly exhibited or drew the weapon in another person’s presence, or
- You illegally used the weapon in a quarrel or fight, and
- You were not acting in self-defense or defense of someone else
Some crimes under PC 417 are misdemeanors, while others are wobblers. For instance, brandishing a weapon capable of being concealed and brandishing a weapon on school property are misdemeanors while brandishing a weapon on the grounds of a day-care center when it’s open for use and brandishing a weapon in the presence of a police or peace officer on duty are wobblers. A misdemeanor conviction will carry up to thirty days in jail, while a felony will carry a maximum of three years in California State prison. Also, if the weapon you brandished was a gun, you may face deportation or inadmissibility.
PC 26100 –Drive-by-Shooting
Drive-by-shooting is maliciously or willfully discharging a gun from a vehicle. By willfully, it means you did commit your act purposefully. On the other hand, acting maliciously means you acted deliberately, trying to injure, annoy, or disturb another person. Shooting a person from your vehicle isn’t the only way you can face charges under PC 26100. This law also illegalizes:
- Shooting at another person outside of your vehicle even if you don’t hit them,
- Discharging a gun from within your auto,
- Knowingly letting another person bring a gun into your vehicle, and
- Knowingly allowing another person to fire a gun from your auto,
Even if you aren’t in your car, but you permitted another person to fire a gun from it, you could still be prosecuted under PC 26100. Additionally, the vehicle doesn’t need to be in motion during the commission of the supposed crime. Doing any of the mentioned actions while the vehicle isn’t moving is still unlawful.
Violating PC 26100 can be prosecuted as a misdemeanor, straight felony, or wobbler. It’s a misdemeanor in a situation where you let someone else bring a firearm into your car. A misdemeanor conviction carries a six-month jail sentence and up to $1,000 in fines. It’s a wobbler where you fired a gun from a vehicle or you, as the driver, permitted a passenger to fire a firearm from within your car. In this case, misdemeanor punishments will be up to a year in jail and a fine not exceeding $1,000, while felony consequences will include $10,000 in fines and a maximum of three years in prison. And you’ll face straight felony charges if you fired a firearm at someone else while in an auto. The consequences here will include up to $10,000 in fines and a maximum of seven years in prison. Drive-by-shooting could lead to immigration consequences, which include deportation and inadmissibility.
PC 245(a)(2) –Assault with a Firearm
Assault with a firearm occurs when you attack or try to attack someone else with a gun. Just like assault with a deadly weapon under PC 245(a)(1) is deemed a more severe offense than simple assault, assaulting someone using a gun enhances punishment even further. To be guilty of assault with a gun, the prosecution must prove that:
- You committed an act using a gun, which, by its nature, would directly and probably lead to using force on an individual.
- You acted deliberately
- You were aware of the facts that’d make a reasonable individual realize your action would directly and probably lead to using force on someone.
- You had the present capability to apply force using a gun.
Note that you need not have fired the gun or inflicted injury on the victim for you to be convicted. PC 245(a)(2) violation can be charged differently based on the kind of gun used and what category of the victim was involved in the crime. If it was a generic gun that’s not a semiautomatic firearm or assault weapon, the crime is a wobbler. A misdemeanor conviction carries a maximum jail sentence of one year. On the other hand, a felony carries a four-year prison sentence or eight years where the victim involved was a law enforcement officer.
If it was a machine gun, .50 BMG rifle, or assault weapon, you could face twelve years of a prison sentence. And if it were a semiautomatic gun, the maximum time in prison would be nine years. PC 245(a)(2) violation is also a strike per the state’s Three Strikes Law and could be an aggravating factor to enhance punishment on subsequent convictions. You could also lose your right to purchase or own guns for life if convicted of this crime.
PC 246 – Shooting at an Occupied Vehicle or Inhabited Dwelling
PC 246 criminalizes discharging a gun at an occupied vehicle, aircraft, building, an inhabited dwelling, or a house car like a camper or RV. You could be guilty under PC 246 for firing at an apartment, trailer, RV, or house even if nobody was there when you did so. All that counts is that a person/people were using the structure as a residence at the time. Also, remember that firing at an uninhabited dwelling or unoccupied vehicle is also a crime under PC 247b. For a conviction to occur under PC 246, the DA must show that:
- You maliciously and willfully fired a gun.
- You fired the firearm either at a lived-in house car/house or an occupied vehicle, aircraft, or building.
Violating PC 264 is a felony punished by a maximum of seven years in prison and up to $10,000 in fines. If a victim died or suffered significant bodily injury due to the firing, you will serve an additional twenty-five years to life in prison. You will also lose the right to purchase or own firearms for life.
PC 246.3 – Negligent Discharge of a Firearm
In California, it’s unlawful to discharge a BB gun or firearm in a grossly negligent way that would result in death or injury. The lawmakers enacted this statute to prevent people from firing a gun or BB device in the air during festivities, events, or celebrations. For you to be guilty under this law, the prosecution has to prove that:
- You willfully short a BB gun or firearm
- You short the gun grossly negligently
- Your firing could have caused death or injury
Per the law, acting grossly negligently means acting in a manner that any reasonable individual would know was reckless and in a way that creates a high degree of risk of death or injury. For you to be guilty, all the above elements have to be substantiated, including that discharging the gun could’ve hurt another person. If you fired a firearm in a very remote place that it’s reasonable to assume nobody could be killed or injured, you wouldn’t be violating PC 246.3.
Violating PC 246.3 is a wobbler. A misdemeanor conviction carries up to a year in jail and a fine not exceeding $1,000. A felony carries three or two years, or sixteen months served in jail under the realignment program.
PC 29800 – Felon with a Firearm
Felon with a firearm is an offense described under PC 29800. Essentially, it is against the law for a person found guilty of a felony, given misdemeanors or violent firearm offenses, or a habitual drug user to possess, own, store, use, sell, purchase, or receive a gun. You need not have physically had a gun to be guilty under this law. You only need to have had access or the legal right to control a firearm. It also does not matter whether the gun was loaded or not.
Various misdemeanor convictions that would trigger prosecution under Penal Code 29800 include brandishing a firearm, assault with a deadly weapon, and particular sex offenses. Felon with a gun is a felony crime that cannot be lowered to a misdemeanor. A conviction will subject you to up to $10,000 in fines and a maximum of three years in prison.
PC 25400 – Carrying a Concealed Weapon
PC 25400 criminalizes carrying any concealed weapon either on your person or in a vehicle that’s under your control. A concealed weapon could be a handgun, revolver, or any other device capable of being concealed. To carry on your person means physically possessing the weapon, and it doesn’t matter whether the weapon was fully or partially concealed. Note that the judge could find you guilty under PC 25400 even if the concealed weapon were in a gym bag that was in your vehicle. But for a conviction to occur, the prosecution has to demonstrate all the following elements:
- You carried a weapon concealed upon your person, or
- You were carrying a weapon concealed in an auto that was under your control, or
- You made a weapon to be carried concealed within a car that was under your control, and
- You knew the concealed weapon was there
Violating Penal Code 25400 is a misdemeanor offense carrying up to a year in jail and a maximum of $1,000 in fines. Under certain circumstances, however, this offense can be a felony or wobbler. A felony conviction carries up to $10,000 in fines and a maximum of three years in prison.
Some people are exempt from prosecution under this law. They include licensed firearm dealers, United States military members, peace officers (honorably retired or active), bank messengers or guards, licensed fishers/hunters transporting or using their firearms for these activities, etc.
PC 25850— Carrying a Loaded Firearm Publicly
Per PC 25850, it’s a criminal offense to carry a loaded gun in an auto or on your person in a public place. A public place, in this case, is anywhere that’s readily accessible by anyone, including public streets, sidewalks, parks, or any place where it’s illegal to carry a loaded gun. To be convicted of this crime, the prosecution must show that:
- You were carrying a loaded gun on your person or in your vehicle
- You knew you had the firearm
- At the time, you were at a public place or where it was illegal to discharge a gun.
A simple violation of this law is a misdemeanor punishable by $1,000 in fines and one year in jail. However, given aggravating factors may make this crime a felony or wobbler. Additionally, you’ll be required to serve a minimum of three months in jail if you’ve certain past convictions.
PC 26350 – Openly Carrying an Unloaded Firearm
Before 2012, any person who legally owned a gun could carry it openly while the firearm was unloaded. However, this changed after PC 26350 was enacted, and now it’s a crime to carry a gun openly. The prosecution must prove the following for you to be guilty of violating this law:
- You openly carried
- An unloaded or exposed gun
- On your person or inside an auto
- When you did so, you were in public
Violating PC 26350 is a misdemeanor offense. Most violations carry up to a year in jail. However, you could be subject to both time in jail and a fine if you aren’t the legal gun owner and were also carrying unexpended, dischargeable ammunition.
Certain people and situations are exempted from this law, subject to given restrictions. They include but not limited to:
- Persons with the state’s firearm carry permit
- Military personnel
- Peace officers (honorably retired and active)
- People practicing at target ranges
- Gun shows
- Licensed firearm dealers and manufacturers
- Gun repair pawn shops and shops
- Employees of common carriers such as airlines
- Movie productions and rehearsals and other types of entertainment
Defending Against Weapon Charges
As we have seen, weapon charges can be filed against a person under different statutes. Each of these statutes has specific elements that the prosecution must demonstrate for a conviction to occur. A skilled firearm crime defense lawyer can defend their clients in several different ways based on what elements the prosecutor is trying to substantiate, what proof they have presented, and the facts surrounding the supposed crime. Therefore, every weapon charge defense is unique. But to give you an idea of the forms of legal defenses that lawyers often argue in firearm crime cases, consider these commonly asserted defenses:
- The proof the prosecution presented was unlawfully obtained
- The accused didn’t have the knowledge or criminal intent required to sustain a conviction
- Mistaken identity
- The proof the prosecution presented is subject to a different interpretation.
- One of the exceptions to weapons laws applies to the accused
- Self-defense or defense of others
- Police entrapment
- Accidental firing of a gun
Additionally, there are various arguments your lawyer can make in your defense if you’re already convicted, which may secure a reduced sentence. For instance, your lawyer may argue that you:
- Didn’t know you were violating the law
- Have never been found guilty of a firearms offense previously
- Are of good moral character and an upstanding citizen
Contact a Skilled Gun Offenses Criminal Defense Attorney Near Me
California gun control laws are strict and complicated, which can easily lead to severe criminal charges. And as we have seen, gun-related offenses carry harsh and sometimes permanent punishments upon conviction. Also, we have several rules and exceptions that apply to certain firearm offenses but not others, and you can’t understand them without seeking legal help. A skilled firearms defense lawyer will interpret gun laws for you and advise you what to expect when in trouble with the law. They’re also an essential factor in obtaining the best outcome for your case.
If you’ve been arrested or charged with a gun offense in Riverside, CA, don’t hesitate to call us at Riverside Criminal Defense Attorney Law Firm for a complimentary consultation with one of our top-notch firearm crimes defense lawyers. We’ve successfully defended clients facing weapon charges in Riverside for several years and are prepared to do the same for you. Call us now at 951-946-6366 and obtain the help you need.