Carrying a concealed firearm in California is an offense prosecuted as a wobbler. PEN 25400 criminalizes carrying a gun on you, in your car, or anywhere where you have easy access to it. Even when you are a licensed gun owner, the law prohibits carrying a concealed firearm. If you are charged with this violation, the penalties depend on the offense's circumstances and your criminal background.
The prosecutor only needs to prove you had a concealed weapon with you, even if it was not functional or risky to others. PEN 25400 violation is charged as a misdemeanor or felony charge. If convicted, possible penalties include hefty fines or a jail sentence. However, with the help of an experienced criminal lawyer, you can fight these allegations. At Orange County Criminal Lawyer, we are passionate about defending and protecting your rights when facing criminal charges.
Defining Carrying a Concealed Firearm According to the Law in California
The law that prohibits having a concealed weapon in California is found under PEN 25400. This law makes it a punishable offense when you are found committing particular acts with:
- Pistols or
- Other types of firearms that you can conceal
The acts that are prohibited under this statute include:
- Carrying a firearm concealed or hidden in a vehicle that you control or is under your direction
- Carrying a gun that you have hidden in your person or within you or
- Causing, allowing, or facilitating the carrying of a concealed firearm in any car that you occupy
In January 2012, California's state made it an offense to carry guns even when they are unloaded in public places. This means, even when your concealed weapon is unloaded, having it in public is a violation of PEN 25400.
Elements a Prosecutor Must Prove to have you Convicted of Violating PEN 25400
Being accused of the offense is one thing, but proving it is another. Unless the prosecutor proves that you violated the offense by determining its elements, you will be found innocent of the accusations. The aspects that must be determined are:
- That you were found with a concealed firearm on you or in your car
- You knew the concealed weapon was there and
- The gun was concealed substantially
You must understand specific terms used in defining the offense to comprehend the allegations against you better. Here, we discuss these terms in greater detail, and they include:
Understanding What Concealed Means
The offense of having a concealed weapon is punished according to Pen 25400, as earlier discussed. However, this does not make it legal to have the same firearm openly where all can see. If found carrying a gun openly, you will be prosecuted for violating PEN 26350. Again under this statute, it does not matter if the weapon openly had is loaded or not, or whether it is a risk to others. The act of just carrying it is what makes it a criminal offense.
According to PEN 25400, the concealed firearm does not need to be entirely hidden or concealed. Even when the firearm is partially obscured, or is identifiable, you will still face prosecution for violating the law. For instance, you are carrying a weapon in your pocket, and it forms a bulge in your pocket. An officer notices his bulge and suspects it to be of a concealed gun. Regardless of whether the officer suspected what it was, the weapon was concealed. In this case, you will be charged with violating PEN 25400.
If you carry your firearm openly in a belt holster, it is not concealed according to PEN 25400(b). However, this amounts to having a gun openly in public, which is a criminal offense, as earlier discussed.
Revolver, Pistol, or any Other Firearm that Can be Concealed on You
Under this statute, a revolver, pistol, or other firearms that are possible to conceal on you is:
- Any gadget or device
- Made to use as a dangerous weapon
- Where a projectile is expelled by forceful explosion or combustion and
With a barrel that is 16 inches or less. Or is 16 inches and over in length, made to interchange with a barren that is below 16 inches
The terms according to this statute, include the receiver or frame of the weapon. The unit that serves as mounting for a barrel and operates the various parts of a gun is the frame. The weapon's mechanical parts that include the bolt carrier and trigger housing are held together by the receiver.
Defining a Firearm
The legal definition of a firearm is found under PEN 16520(a). The same meaning stands when you violate PEN 25400, and it means:
- A gadget or device
- Made to use as a dangerous weapon
- Where through its barrel there is expelling of
- A projectile using forceful explosion or another way of combustion
This definition or description includes rockets, a rocket launcher that is projectile propelled, or a similar device that contains combustible or explosive materials, irrespective of whether the gadget is made for distress or emergency signaling.
According to PEN 25400, firearms come in various types that include:
- Rifles with a short barrel
According to the law, guns that rely on air pressure to expel a projectile such as BB guns or pellet guns, are not considered. When gun laws are enacted, the state seeks to protect the greater public from the possible danger of seeing a hidden weapon. Even when the concealed gun you have is not functional, the prosecutor will still charge you with violating PEN 25400.
What does Carried on a Person Mean?
This is one of the requirements to be found guilty of violating the law. Having an obscured weapon on a person means you physically had possession of the firearm. This means the gun can be in a bag you are carrying or hidden under your clothes. Under this statute, you are guilty of violating the law if the weapon is found in the pocket, bag, briefcase, purse, or anything you have with you.
The Requirement of Knowing about a Concealed Firearm’s Presence
PEN 25400 and other gun laws in California require you to know the gun was present. This is critical in avoiding wrongful convictions for offenses that were not intentionally committed.
For instance, you and your colleague have similar briefcases. You remember you have a meeting in a government office and are running late. You quickly pick a briefcase, thinking it is yours, but it belongs to your colleague. As you enter the government office, there is a security check, and you are found with the weapon in your briefcase.
In this case, if the police charge you with having a concealed weapon, you can use the lack of knowledge as your defense. If you never knew the gun was present and the briefcase was not yours, you are innocent of the violation.
Penalties for PEN 25400 Violations
As earlier stated, violating PEN 25400 is a wobbler in California. Before preferring charges, the prosecutor typically looks at your criminal background and the circumstances of the offense.
Misdemeanor Violation and Penalties
If no aggravating factors or circumstances to the offense exist, violating PEN 25400 is prosecuted as a misdemeanor. A conviction under this carries the following legal penalties:
- Serving one year or less in county jail
- A fine not exceeding $ 1,000 in addition to or instead of the jail sentence
- A summary probation
Summary probation is one of the favorable outcomes of these charges because you may not serve any jail time. However, the probation sentence has conditions that must be adhered to, but if violated, it might lead to a jail sentence instead. Before handing you a sentence, the judge considers various factors that help determine if you receive a jail sentence or a fine. These factors include:
- Your criminal history or background
- If you have a violent history
- What you planned to use the weapon for and
- If you declined to cooperate with the law enforcement officers during the arrest
- Felony Violations and Penalties
If the circumstances of your offense presented aggravating factors, violating PEN 25400 becomes a straight or direct felony. The prosecutor can only charge you with a felony for violating PEN 25400 when:
- You previously were found guilty of a gun offense in California or a felony offense
- The concealed weapon is stolen, you knew it was stolen or had a reason to believe it was
- You actively participate in the activities of an unlawful street gang
- The law prohibits you from having a firearm or owning one according to PEN 29800
- The gun is unlawfully in your keep
The law further prohibits you from having or owning a gun, according to PEN 29900, because you committed or attempted to commit violent crimes such as rape, murder, kidnapping, carjacking, or lewd acts with a minor
If you are prosecuted on felony charges and convicted, the legal punishments you receive under PEN 25400 include:
- Formal probation that consists of a year or less of a county jail sentence or
- Sixteen, twenty-four, or thirty-six months of county jail time
- A fine of $10,000 or less instead of or in addition to the jail sentence
PEN 25400 as a Wobbler Offense
Violating this statute is a wobbler if, besides carrying the concealed firearm or gun, you had a previous conviction for a misdemeanor offense against a property or a person. The crime is also a wobbler if you were previously found guilty of a drug-related offense in California.
- The offense also becomes a wobbler if the following two factors are true
- The concealed firearm was loaded, or you could easily access the ammunition and
- The loaded weapon is not registered to you according to the Department of Justice
A wobbler is defined as an offense where the prosecutor has the discretion of charging you with a felony or misdemeanor offense. The decision on how to charge you primarily depends on your criminal background and the offense's facts.
A wobbler misdemeanor conviction for violating PEN 25400 carries the legal penalties below:
- A year or less in county jail
- A cash fine not exceeding $1,000
A wobbler felony conviction, on the other hand, carries steeper penalties that include:
- Felony probation with a year or less of county jail incarceration or
- Prison sentence lasting sixteen or twenty-four or thirty-six months
- A fine not exceeding $ 10,000 instead of or in addition to the jail sentence
Past Firearm Convictions
If you have a prior conviction for a firearm offense in your criminal history, it serves as an aggravating factor for your current charge of violating PEN 25400. In this case, a sentence means you must be incarcerated for not less than three months in the county jail.
If you have been previously convicted of the following offenses:
- Violating PEN 245(a)(1)
- PEN 246 Violations or
- PEN 417 violations
You serve a mandatory county jail sentence lasting between three and six months.
However, if the judge finds that it serves justice to suspend the minimum county jail incarceration and serve probation instead, it is at their discretion. Besides the penalties discussed above, if you are convicted of violating PEN 25400, your license to carry a firearm faces revocation.
Fighting PEN 25400 Charges
From the penalties discussed above, violating PEN 25400 is a severely punishable offense. When charged with these allegations, finding an experienced criminal attorney is critical to your prevailing over them. After studying the prosecutor's case and investigating the offense's circumstances, your lawyer will formulate strong legal defenses to challenge the allegations. Some popular legal arguments for this offense include:
You had no Knowledge you had a Concealed Weapon or Firearm.
One of the critical elements a prosecutor must prove is knowledge. This means, if you never knew you had a concealed gun with you, then you are innocent of violating PEN 25400. Your lawyer can argue that your passenger or vehicle driver had a concealed weapon in the vehicle. Also, another person may have placed the gun in your bag or jacket without your knowledge.
The Firearm was in the Car's Trunk or was Secured in a Container
If you carry our weapon in your car's trunk or lock it in a container found in your vehicle and not in the glove box, you are innocent of violating PEN 25400. However, for this defense, you must be licensed to own or have a gun.
If, however, your concealed weapon was not in any of these places and you are not authorized to have one, you risk a conviction for the offense carrying the penalties above.
You are Permitted to Have a Concealed Firearm
You are only guilty of violating PEN 25400 if you don’t have a license to carry a concealed gun. PEN 26150 describes the permit or the legalities of having a concealed firearm. If you hold this license and are charged with violating PEN 25400, you can prevail against the allegations if you prove your license's validity.
Sometimes, you may have forgotten to carry the license with you. However, if you produce it, the charges against you are dropped. For one to have this license, you must undergo the required training and complete the course. A check into your background is also carried out before the issuance of the permit.
The Concealed Gun was in your Home or Business Premises
If you are licensed to have or own a firearm, you can carry it concealed in your home or business premises that belong to you. However, unfortunately, if you live or work from your car, this rule does not apply in your case. The rule allows taxi drivers to have a concealed weapon in their vehicle without violating PEN 25400. If you are charged with violating PEN 25400, and you were at home or in your business premises, you are innocent of the violation as long as you had a permit.
You are a Victim of an Unlawful Search and Seizure
Many people face allegations of violating PEN 25400 when the weapon in question was obtained through an illegal search and seizure. For instance, if a police officer stops you for a traffic violation such as speeding, they should give you a citation. However, if the officer proceeds to search the vehicle without probable cause, it is illegal. If they find a concealed weapon during their unlawful search and charge you for the offense, the seizure was also illegality.
The law protects its people's rights against being searched illegally and obtaining what is found therein. If the concealed gun resulted from illegally searching you, your lawyer could petition the evidence not to be used in court. Often, this petition is successful, meaning the prosecutor's case is weakened. In this case, the charges are dropped, and you prevail over the accusations.
The Concealed Weapon was in Self-Defense
If you felt your life was in danger, and to protect yourself, you carried the concealed weapon. You can use self-defense as an argument to prevail over the charges. However, this argument must be supported by evidence that:
- You had reason to believe you were in danger
- Because the conduct of other people that included threats justified you to obtain a restraining order
When your life is in danger, often people obtain restraining orders. However, you may be in trouble but not have a restraining order. In this case, your lawyer has a burden to prove you needed to protect yourself from potential danger. Additionally, even with a protective order, you may find it necessary to carry a hidden weapon. If you can persuade the court about your need for protection, the charges against you may be dropped.
The conduct of the police can be a defense in your case. If the police do one of the following, they are guilty of misconduct, and your charges can be dismissed as a result. These behaviors include:
- Planting on you a concealed weapon or in your car
- Lies in their report that the weapon was obscured, when you openly carried it
- Gives false testimony about the circumstances of the offense
- Coerces you into a confession or
- Abuses your constitutional rights
Persons Exempted from Prosecution According to PEN 25400
Not every person that carries a concealed weapon is guilty of violating the law. Under this statute, some individuals are excused from prosecution. These include:
- Honorably retired or active peace officers
- Licensed firearm traders
- S. Military personnel
- Bank messengers or guards
- Members belonging to a shooting target club or organization
- Licensed hunters
However, even when you fall under any of the above, there are conditions to carrying a concealed gun. If you have a concealed loaded gun and belong in any of the groups above, you can face prosecution. The weapon can also only be used during particular activities. If you are charged with having a concealed weapon and belong to any of these groups, consulting an experienced attorney in gun laws is critical.
Consequences of a PEN 25400 Conviction and your Immigration Status
Some offenses under immigration laws are listed as deportable or inadmissible offenses. A legal immigrant can face a conviction on this offense. Unfortunately, a conviction may mean you face deportation. If faced with these allegations, you must engage a criminal attorney to defend you against a conviction.
Expungement of your Record
If you serve your probation sentence for violating PEN 25400 successfully, you can petition the court to expunge your record. An expungement means your history will not be available for all to see. An expungement is crucial because it accords you similar opportunities as with a person without a criminal past.
However, even when your record is expunged, you cannot have or own a gun. Equally, another person's firearm cannot be in your control or custodianship. An important thing to note is that although you have a right to seek your record's expungement, the judge has the sole discretion to grant you one.
Find a Criminal Lawyer Near Me
When facing allegations of violating PEN 25400, you need an aggressive and strong defense. This type of defense involves the gathering of testimonies and evidence that can exonerate you from the charges. An experienced attorney knows how to evaluate your case and the circumstances surrounding it for a favorable outcome. At Orange County Criminal Lawyer, we have years of experience defending our clients against criminal charges preferred against them. Call us at 714-262-4833 to further discuss your case.
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