According to California law, anyone above 18 years can buy and own a firearm without a license. However, this rule does not apply to mentally ill people, drug addicts, people who have been convicted of a felony, or the offense of domestic violence. Without a concealed permit, one can be charged with the Violation of carrying a gun openly. If the gun is loaded, the penalties are severe. California penal code has some provisions in various sections, each forbidding the use of an illegal weapon. It is essential to read these laws to avoid trouble because some charges involve mere possession. Also, fully understanding gun offenses laws will help you know the right legal actions to get involved in any unlawful activities.
Understanding the penal code provisions on gun offenses is not enough; you need to get in touch with a criminal defense attorney who is skilled and experienced with gun defense cases. The attorney will guide and defend you in irrespective of the charges pressed against you. Reaching out to Orange County Criminal Lawyer is a wise step as we will help you understand better the nature of your charges. We have experience in gun offense cases, and we are dedicated to helping our clients win cases.
Buying and Possessing a Firearm in California
In California, those eligible to possess guns are permitted to own handguns like pistols, and long guns such as rifles. However, 50 BMG rifles and guns with high capacity magazines are not legally authorized for California.
Only a licensed California firearms dealer is allowed to sell legal guns. Moreso, only the verified California residents can purchase a firearm in California.
Before purchasing a gun in California, the buyer must take a safety test and pass to receive a gun safety certificate. He/she must be over 18 years to purchase a long gun and above 21 years to purchase a handgun. The purchaser waits for ten days after purchasing for the weapon to be released. During this waiting period, background eligibility is checked to ensure the purchaser is prohibited under the California law from buying a gun.
Persons Prohibited From Owning Firearms in California
The number of those prohibited from buying or possessing firearms in California is large. Those who have been convicted of felonies and misdemeanor offenses, including domestic violence offenses, are given a lifetime ban from owning weapons.
Some criminal convictions and most misdemeanor convictions like assault crimes, threat crimes, and carrying firearms in prohibited places can ban one from possessing a gun for ten years.
Victims who have been in custody as a danger to others and themselves are given a 5-year ban on buying and possessing firearms. However, if these persons are certified to have a mental health problem by welfare and institution statutes, they are banned from owning a gun for life.
A minor who was convicted in an adult criminal parlance for certain crimes may not possess a gun until 30 years.
The Classification of Gun Offenses
For a defendant to face a fair trial in California, the gun offense case must meet various requirements. One of these requirements includes handling or having a firearm to create injury, violate set rules, and cause an assault.
Also, before a prosecutor declares the defendant guilty of a gun offense, the Penal code's offenses must point to any of the primary elements. At times the prosecution is supposed to prove that the criminal elements will depend on:
- The type of weapon used.
- The location of the unlawful handling or possession of the gun
- The prosecutor should prove whether there was any victim injured at the scene by the defendant.
Some of the primary gun offenses in the California penal code are:
Possessing a Gun or Any Firearm in Unauthorised Areas
Having a gun in restricted regions may have you arrested or translated to facing gun offense charges. If you want to stay safe from any criminal charges, it is crucial to identify areas restricting guns' use and possession. Gun offense penalties are different depending on the location you carried your gun, but the penalties can be higher if you had your gun in high-security areas. Some of the weapon restricted areas include:
- Having a Gun Within a School — A school is any private or public learning institution. Section 626.9 of the penal code states that it is unlawful to possess a firearm 1,000 feet within a school. If you are charged with gun possession in the school area, the prosecutor is supposed to prove various elements for the judge to declare guilty, based on the legal provision. Other pieces of evidence like school surveillance footage, eye witness police reports are taken after your arrest can also be used to prove the allegations.
The prosecutor is supposed to prove that you breached the 1,000 feet restriction and went into the school grounds fully aware that you had a firearm. Teachers' quarters are also part of the school; hence having a gun in the area could have you charged with gun possession charges even though you did not intend to enter the school learning section.
There must also be enough evidence to prove that you attempted to discharge the gun in your possession and did not consider any safety considerations. If the prosecutor can prove all criminal elements, you will be charged with seven years of county sentence jail.
- Gun Possession in Airports — Section171.5 of the penal code states that it is unlawful to possess a firearm or any equipment imitating a gun around the airport. If you are accused of breaching this law, the prosecutor is supposed to prove that you were in the possession of either of these firearms intentionally and within any airport location.
This could also attract a different charge under section 171.7 which states possessing a gun in a public transportation facility is unlawful. These transportation facilities include buses, trains, subways, and other public transportation.
Breaking the two laws can attract misdemeanor charges. You may face a six-month sentence in county jail or pay a $1,000 fine.
Assaulting Using a Firearm
Section 245(2)(a) reads that it is unlawful to assault anyone using a gun despite their mistakes. Breaching this could make your different receive punishments depending on the weapon used to assault a victim and the position the victim held.
In this case, an assault is an attempt you make to make another person insecure/ unsafe. It could result from how you behave around them and the manner you handle the instrument. The prosecutor must show that you attempted to injure the victim by firing a bullet aiming at him/her or trying to load a gun to shoot at him/her.
Even though the victim suffered no injury, you could still face assault charges. The prosecutor's main aim is to prove that your actions could cause possible harm to the victim or make the victim fear for his/her life. However, the prosecutor does not need to prove a specific victim of your actions, as long as you drew it in a public area. There are different penalties you could face depending on the weapon you used. If you used a :
- Revolver — If you used a revolver to cause an assault, your assault charges could be misdemeanor penalties or face a felony. The Violation depends on the assault's severity and whether your actions resulted in damages as the victim tried to escape from danger.
If charged as a felony, you could receive a prison sentence for two to four years, while misdemeanor charges will cost you six months in the county jail but could be enhanced to a one-year jail sentence.
- An Assault Rifle or Machine Gun, 50BMG — Causing an assault with such advanced firearms attracts severe consequences as compared to others. These assaults fall under felony charges. You are also eligible for four to eight years in state prison.
- Self-Reloading Pistol — An assault using a semiautomatic gun leads to huge penalties because they cause severe damage. Causing an assault with these kinds of firearms leads to three to nine-year sentences in state prison.
Other assault categories focus on assaulting a person who was a school staff at the time you were in school. For instance, if you assault a teacher who taught you or taught in your school and were fully aware that he/she trained in your school, the prosecutor could build an assault against you. However, the prosecutor has to prove that you were aware that the victim was a school staff member, and you assaulted them performing their duty in school. It means your criminal activity occurred with the school environment, causing a terrifying ordeal to the students and the victim.
The offense falls on wobbler crimes and may attract a misdemeanor or a felony. If you face a felony, you will be imprisoned in state prison for four to eight years. Alternatively, if you face a misdemeanor, you will spend six to one year in county jail.
Firearm brandishing is the same as assaulting using a gun because victims are frightened using both offenses. On the contrary, section 417 of the penal code states that brandishing a firearm does not mean you are attempting to injure the victim.
In firearm brandishing cases, the prosecutor is supposed to prove your actions of displaying the gun in a threatening way that may appear rude. In this case, the offense’s focus will be that you used a gun to scare off/ cause intimidation to the victim.
Depending on your actions, you can receive the following punishments:
- If you brandish your gun to general people, the offense is considered a misdemeanor, leading to being in the county jail for one year or paying a $1000 fine.
- If you brandish your weapon to police officers while trying to resist arrest, the offense falls under felony, and you will face two to four years in state prison.
- If you brandished your weapon towards specific groups of people, the offense falls under wobbler. However, for the case to qualify for a wobbler crime, the prosecutor has to prove:
- You exposed your gun in a daycare center while children were present.
- You rudely displayed your gun in front of a peace operations office.
- You revealed your gun in a threatening way to someone inside a car.
If you are guilty of any listed activities, you may face misdemeanor penalties and spend one to three years in county jail.
As a felony, you may face a sentence of sixteen to three years in state prison.
Bodily Harm Caused When Brandishing a Firearm
You are likely to engage in an advanced version of brandishing firearm offense by harming the victim. Under section 417.6on the penal code, this is termed a different violation because you make threats using the weapon and injure the crime victim.
However, to distinguish this offense, the prosecutor is expected to prove certain things to ensure that the point of causing harm is exact. These things include:
- The prosecutor must prove that you brandished your gun by either exposing it in a rude demeanor to frighten those around you.
- He/she must prove that your brandished firearm caused severe bodily harm to the victim. It could be either by firing the gun, hitting him/her with it, or any violet actions, leading to bone fractures, damaged vital organs, or irreversible body damages.
- The prosecutor must also prove that your actions were intentional. Your attorney can try to justify that your actions were accidental to try to discount the prosecutor's claims.
Depending on your case's situation, the crime will attract different punishment if the case falls on a wobbler. Misdemeanor charges will have you taken to the county jail for six months to one year. Felony charges lead to a prison sentence of up to three years maximum.
Shooting an Occupied Place
Under section 246 of the penal code, anyone who shoots an occupied house, tent, car, or building is guilty of a gun offense. However, during your trial, the prosecutor will try to rely on certain factors to make a convening case against you. For instance, one can shoot a building from outside without necessarily entering the compound; hence, the defendant could have hit the house within the building's vicinity.
Even though you did not fire the gun, but you were part of the shooting plan, you can be charged with aiding another person to shoot. Since the crime not only violates property but also violates the liberty to enjoy personal space, it could lead to severe penalties. You may be sentenced for three to five years in state prison.
However, under section 247(b) of the penal code, shooting an occupied car or build is prohibited, making the two charges similar. The prosecutor's primary aims to prove are identical to the offense stated under section 246 of the penal code. But, shooting of an unoccupied area leads to wobbler crime, depending on the place you fired your shots. It may result in misdemeanor charges, which means you will be sentenced to the county jail for up to one year. You could also be charged as a felony and be sentenced in state prison for up to three years.
Gross Negligence in the Discharge of a Firearm
It is the responsibility of a gun owner to exercise gun control and handle their gun in a way that does not expose other people to risk. Discharging a firearm negligently or firing it can lead to severe penalties due to strangers' possible risks. Also, the careless offense discharge of BB devices( devices that shoot bullets, similar to the standard guns) because they can lead to severe injuries to victims.
The prosecutor is supposed to prove that your actions to discharge the gun were intentional. She may use witness statements or video footage captured as you unleash your gun carelessly as the evidence to support this.
The prosecutor is also supposed to prove the negligence in your actions. Grossly negligent entails acting in an unusual way that no one in their right senses would do. Hence your effort should show the ignorance of human safety. For instance, if you fire a gun in a public gathering, you will have acted in a grossly negligent manner for disregarding the safety risks you create to the people present.
It does not matter if any victim was injured or not; the prosecutor does not need any specific person injured due to your actions. Your actions alone are enough evidence to prove that you do not care about other people's safety. As a result, your actions might attract a felony charge where you will face a sentence in the state prison for up to three years. While as a misdemeanor, you will face up to one year in county jail. The discharge of a BB weapon attracts misdemeanor charges only.
Effects of Gun Offense Convictions
Jail sentences and fines penalties for various gun offenses are not the only charges one might face. Other effects are likely to limit your liberties in the future; as a result of your actions. They include:
- Relinquishing the Right to Possess Firearms — Upon conviction, your current gun is confiscated, and you might not be able to acquire another firearm in the future. Before anyone is issued a gun in California, their criminal records have to be checked. Due to your past criminal records, you might be denied the chance to acquire a license to own a firearm.
- Facing Sentence Enhancements — If you possessed a gun to commit a felony, your actions might attract sentence enhancements. That is why most defendants receive additional punishment for intentionally using weapons for illegal operations. For instance, if you were found stealing and used a gun to help you get away with the stolen money, you could face additional sentences.
Available Defenses for Gun Offenses
Federal firearms are very complex and can cause severe penalties. Many federal laws regulate the sale, possession, buying, and use of weapons from possessing a gun as a convicted felon and selling firearms without a license. Your criminal defense attorney plays an essential role in presenting a defense for any gun offense. Our federal criminal lawyers have handled similar cases and have helped people win. They are various arguments you can offer to establish a persuasive defense during the trial. Some of the arguments are:
1. You were Unaware of Possessing a Gun
At times, the defendant might have forgotten that he/she is carrying a gun. For instance, if you always have your weapon in your car, you might be in trouble if you pick up your kids from school on a closing day or attend a school meeting. Despite your genuine claim, the school management might hand you over to the authority who will then file a case against you. It is up to your lawyer to prove that you were not aware that you had carried a gun. It is not always an easy case; you need a skilled attorney with vast experience.
2. It was Impossible to Harm Anyone With Your Gun
The defense only works for some instances, as an assault charge. Mainly because one of the main points is to prove that your actions could cause injury, your attorney might raise the defense to show that your actions could not cause harm in reality. For instance, you might have carried an unloaded firearm with all safety features in place during the alleged assault, this means you could not cause any harm or injury. If a professional attorney presents you, this defense might reduce the penalties you will face.
Find a Criminal Defense Attorney Near Me
Defending against firearm offense charges that do not require intent proof can be challenging. We at Orange County Criminal Lawyer know precisely how to help you possibly obtain innocence or lesser charges. We will analyze all the evidence against you and come up with a defense strategy. Even if you are found guilty of a firearm crime, our skilled attorneys will do their best to help you obtain reduced sentencing. Call us today at 714-262-4833 for more information on how we can help you.
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