Thanks to the Second Amendment of the U.S. Constitution, citizens across all states have the right to bear firearms. While this is the case, there are rules and laws in each state that ought to be obeyed. Gun laws and gun offenses in specific remain subject to considerable scrutiny, not to mention that they attract great contention in light of the rising cases of gun-related crimes across the country. If you are accused of any gun offense and need the expertise of an Orange County Criminal lawyer, we will give you the best chances of enjoying a favorable outcome.
California's gun laws are arguably the most complicated. The outcome of just about any criminal charge is highly at the mercy of the competence of your defense team. Bear in mind that variables like the kind of weapon used, how it was acquired, whether it is registered, its magazine capacity, and even how it was discovered may play a leading role in dictating a case's outcome.
Buying and Possessing a Firearm in California
Before learning about the list of weapons prohibited in California, it is crucial first to know who is eligible to buy and possess a gun. Some of the weapons permitted in the state include long guns (rifles) and handguns (pistols). However, the California laws deem it illegal to possess semi-automatic firearms, 50 BMG caliber rifles, short-barreled rifles and shotguns, and any gun with a high-capacity magazine.
For any firearm to be deemed legal, it needs to be bought from a licensed California firearms dealer. You can only make a legal purchase if you are a verified resident of the state. You are also prohibited from purchasing a firearm in the state if:
- You have a lifetime ban for a convicted felony or misdemeanor
- You are yet to complete your 10-year ban for a criminal conviction like assault
- You have a lifetime or 5-year ban under the state's Welfare and Institutions Code for being a danger to yourself or others
- You are convicted as a minor in adult criminal parlance (you may be banned from possessing a firearm until you hit 30 years)
- You are temporarily prohibited from possessing firearms because of an addiction, restraining order, etc.
Moreover, even a Californian resident needs a Firearm Safety Certificate before purchasing a gun. This certificate is offered after passing a gun safety training test. You should also be at least 18 years to buy a long gun or 21 years to buy a handgun.
Licensed dealers impose a 10-day waiting period between the purchase of a gun and its release. This allows them to verify the buyer's eligibility and confirm they are not persons prohibited from carrying under California laws.
In case you move into the state with a legally owned gun, California laws allow you to make personal importation of any firearm that can be legally possessed in the state. You will then need to declare the imported firearms with the California Department of Justice. The deadline for doing this is 60 days from the time you become a resident. New residents in possession of guns prohibited by California laws should surrender them to the relevant authorities.
Unlawful possession of a firearm in Orange County and California at large is a serious crime that may attract long-standing penalties. When charged with a gun offense, the last thing you should do is attempt to defend yourself against the charges without enlisting a lawyer. California gun laws are complex, and fighting even a minor weapon charge requires you to have a skilled and proficient weapons crime defense attorney.
California Penal Code 16590 (Generally Prohibited Weapons)
California Penal Code section 16590 lists down generally prohibited weapons that are considered illegal in different Penal Code sections. Here is the amassed listing of generally prohibited weapons under various sections:
Ammunition and Explosives
- Concealed explosives that may not fall under fixed ammunition ( 19100 P.C.)
- Flechette darts or ammo made from flechette darts (30210 P.C.)
- Explosive bullets or ammo that contains explosive agents ( 30210 P.C.)
- Metal hand grenades used for military practice or their replicas (19200 P.C.)
Knives and Edged Weapons
- Concealed daggers or dirks ( 21310 C.)
- Air gauge knives (20130 C.)
- Cane swords (20510 C.)
- Ballistic knives (21110 C.)
- Writing pen knives (20910 C.)
- Lipstick case knives (20610 C.)
- Belt buckle knives (20410 C.)
- Knives concealed within crutch, cane, or any other device that are designed to pop up after certain mechanical operations such as wrist movement (20710 C.)
- Throwing stars (Shuriken) (22410 C.)
Unconventional Firearms and Modified Firearms
- Short-barreled shotguns or rifles (33215 P.C.)
- Camouflaging firearm containers (24310 P.C.)
- Unconventional pistols (31500 P.C.)
- Cane guns (24410 P.C.)
- Undetectable firearms (24610 P.C.)
- Firearms that don't look like typical firearms (24510 P.C.)
- Wallet guns (24710 P.C.)
- Multi-burst trigger activators (32900 P.C.)
- Zip guns (33600 P.C.)
- Large-capacity magazines (32310 P.C.)
- Blackjacks, leaded canes, slungshots, sandclubs, sandbags, billy clubs, and saps (22210 P.C.)
- Nunchakus (popularly known as nunchucks) (22010 P.C.)
- Brass or metal knuckles (21810 P.C.)
This list contains weapons that are easily concealed and may allow wrongdoers to carry out silent attacks effectively. Prohibiting these weapons helps protect California's citizens from exposure to weapons typically used for criminal or unlawful purposes.
Places Where Carrying a Firearm is Prohibited in Orange County California
Legally acquiring a gun in California is good. It is equally vital to understand other laws that deem it illegal to carry your firearm to certain locations. Without proper authorization, you can be charged for bringing a firearm to:
- A campus of any private or public school, college, or university
- Any public facility such as the legislative offices or courthouses
- The residence of any constitutional officer or Member of the California State Assembly or Senate
Other gun possession violations typically considered as unlawful acts include:
- Changing or messing with the identification marks on your firearm
- Drawing or displaying your firearm in a threatening or rude manner (unless if your life is in threat)
- Showing negligence by discharging your firearm in a grossly careless manner (like shooting at the sky during celebrations)
- Shooting from a moving vehicle
- Shooting at unoccupied structures
- Storing a loaded gun within areas accessible by underage persons
Some variables are used to determine whether the above violations will attract criminal charges, or a conviction will result in incarceration.
Elements of Prohibited Weapon Possession in California
The prosecution is tasked with providing certain facts before the court can convict you for violating Penal Code 16590. The elements of this offense include:
Evidence that you imported, manufactured, exposed, kept, or sold a prohibited weapon in California
The prosecution needs to affirm that the weapon you possess is listed under PC 16590. If it is not, then it's hard to hold you in violation of this Penal Code.
Proof that shows actual or constructive possession of a prohibited weapon
Actual possession is when one is arrested while holding the weapon or having it in their pocket. Constructive possession is when the prohibited weapon is somewhere within an area controlled by the accused. For instance, if a prohibited weapon is found in your home, you will be charged with constructive possession.
Knowledge of engaging in an unlawful activity related to prohibited weapons
This could include possessing, selling, manufacturing, giving, receiving, or even purchasing a prohibited weapon. However, the laws don't consider it a crime to engage in these activities unintentionally. Therefore, the prosecution needs to prove your intention or at least demonstrate that you knew about an object's potential to be a weapon.
Knowledge of the potential of an object to come in handy during illegal activities
Generally prohibited weapons are short, easy to conceal, and designed to carry out effective yet discreet attacks. In this element, the prosecution needs to demonstrate your understanding of the potential of an object. According to California laws, a firearm is
- Any device
- Designed to be used as a weapon
- Contains a projectile (missile)
- Can be discharged via a barrel, explosion, or other types of combustion
As an adult in California with a clean track record, you can legally own long rifles, shotguns, long shotguns, conventional pistols, and even revolvers. However, possessing, selling, or manufacturing legal firearms is still illegal if you:
- Are a drug addict
- Are not of legal age (under 18 years)
- Are mentally unstable
- Have a prior felony conviction
- Have a prior conviction for particular misdemeanors
- Have been convicted at least twice for brandishing a weapon (violation of 417 P.C.)
Even if a prohibited weapon is not operational, you still face the risk of a conviction. In this case, the courts will assume the weapon was used to evoke fear and ensure victims or other third parties' coercion.
Best Defense Strategies for Prohibited Weapon Charges
If caught in possession of an illegal or prohibited weapon, your defense attorney may use the following strategies during the trial:
Illegal Police Search
As long as you don't walk around the streets flashing around a prohibited weapon, it will possibly be discovered following police investigations. Again, some rules govern how law enforcement officers can legally search you or your property. A legal search can only take place if:
- The police have reason to believe you are or were engaged in unlawful acts. The reasons causing this belief give the authorities probable cause to start investigations
- A search warrant is issued by a judge, authorizing police officers to search you or your property
- You agree voluntarily to the search
If the above criteria are not followed, then investigations that lead to the seizure of your weapon violates your constitutional rights. This is enough reason for the courts to dismiss the case.
You Had No Idea That You Possess a Prohibited Weapon
While ignorance is, in most cases, not a defense strategy, the gun laws are a bit lenient. If you argue that you found yourself in possession of a prohibited weapon unintentionally, there is a good chance that the judge will cut you some slack.
Usually, it will be necessary for the prosecution to demonstrate that you didn't carry or possess the prohibited weapon intentionally. The lack of such evidence leaves the courts with no choice but to overlook your unconscious deeds. For instance, you can get off the loop if the prosecution can prove that you did not intentionally violate the law because you had no idea that the ordinary-looking cane you purchased is a cane sword.
You Are Legally Permitted To Possess a Prohibited Weapon
Certain people are permitted by the law to own certain prohibited weapons as long as certain conditions are met. As long as the said weapon is possessed within conditions permitted by the law, then a crime cannot be committed. In this case, your attorney needs to table evidence demonstrating that:
- You possess the "prohibited weapon" legally
- You carried the weapon within the conditions specified by the law
You Have Proper Authorization
Regular permits that allow California citizens to carry concealed weapons don't authorize the carrying of prohibited firearms. Even with a license to carry concealed weapons, it is still illegal to carry any weapon listed under Penal Code 16590. However, certain permits authorize the carrying of some prohibited weapons.
For instance, you can acquire an entertainment firearms permit from the Department of Justice. This will allow you to use unloaded guns as props in the course music/ movie production or during other entertainment events. A licensed firearms dealer may also acquire a license from the Department of Justice to handle, transport, and sell large-capacity magazines to interested out-of-state buyers.
Setups are not just for movies; they also happen in real life. You can use entrapment as a defense as long as you can demonstrate that your unlawful conduct resulted from being lured, coerced, or persuaded by the authorities. Note that the laws expect upright citizens to resist crime in normal circumstances even when appealing opportunities present themselves.
For instance, an officer may approach you and request to buy large-capacity magazines for personal use. The law expects you to decline the offer without hesitation. However, the officer in question may insist and even threatens to meddle in your business activities, forcing you to accept the request. In this case, the courts may absorb you of your unlawful conduct because you were forced into participation.
California's gun laws are complicated. These laws will not absorb you of a crime if you cannot prove entrapment. For instance, you are guilty of initiating a crime if an undercover officer requests to acquire a prohibited weapon, and you offer to make it available within a specified duration.
Another strategy we may use to have your charges dismissed is to demonstrate the police's inappropriate behavior. This may include misconduct like:
- Fabricating evidence
- Forcing you to confess
- Conducting an unlawful search for prohibited weapons
- Participating in acts that violate your constitutional rights
Additionally, the police are not allowed to draw the line between what is permitted or prohibited within California. Therefore, for you to be convicted of possessing, manufacturing, or selling a prohibited weapon, it needs to match the specifications of prohibited weapons listed under Penal Code 16590 of California's gun laws.
For instance, while a 13-inch pistol with a rifled bore may seem unconventional, possessing it is not a crime. After all, the definition of unconventional pistols according to the law is shotguns shorter than 26 inches (total length) that lack a rifled bore and have barrels shorter than 18 inches. Your pistol fails to meet this criterion because it has a rifled bore.
The prosecutor's work is to table evidence that persuades the judge and jury that you are guilty beyond a reasonable doubt. The evidence and not the prosecutor's arguments or theories should be used to influence the direction the case takes. Any other fishy attempts by the prosecution to influence the jury's decision could lead to your sentence being reduced or the charges dismissed.
The prosecutor also has the duty to table evidence that shows you were in actual possession of a prohibited weapon. If your defense team can demonstrate acceptable levels of uncertainty based on the evidence tabled against you, there is a likelihood that the court will dismiss your charges.
It is not illegal to possess a prohibited weapon briefly. For instance, if you pick up a belt buckle knife from a licensed weapons dealer's store and take your time to study its features and functions, this kind of possession is not a crime. It is considered momentary possession.
Penalties for Violating Prohibited Weapons Laws
Violating Penal Code 16590 is a wobbler. This means that a crime can either be charged as a felony or misdemeanor depending on certain variables, including:
- Your criminal background
- Facts and evidence of your case
Punishment for misdemeanor offenses may include:
- Informal probation and one-year imprisonment in county jail
- Fine of up to $1,000
- A fine and jail time combined
Punishment for felony charges may include:
- Formal probation and one-year incarceration in county jail
- 16 months in a county jail or 2-3 years in the county jail without probation
- Fine of up to $10,000
- A fine and jail time combined
Other Consequences of a Weapons Conviction
One thing that makes gun offenses in California complex is that they are determined based on various variables. Depending on the facts gathered during a case, your criminal background, and various other factors, a weapon conviction could result in:
If you are a legal alien or illegal immigrant in the country, a weapon conviction is likely to get you deported.
If you are put on probation, you have the option of petitioning the court to erase or expunge your conviction upon completion of probation. However, expungement is often denied by the courts if the terms of probation are violated. If you are eligible for expungement, this will only clear your criminal record, although it will not reinstate your rights to firearm possession.
Loss of Firearm Possession Rights
The courts are likely not to revoke your rights to possess a firearm over a misdemeanor conviction. However, felony convictions can cause lifetime bans from owning, possessing, receiving, or buying a firearm. Unless you fight to have the courts reduce your conviction from a felony to a misdemeanor, not even a certificate of rehabilitation or governor's pardon can reinstate your gun rights.
How Can We Help?
We can provide invaluable legal guidance and a strong defense for all kinds of gun offenses, including:
- Possession of prohibited weapons
- Brandishing a weapon
- Unlicensed sale of prohibited firearms
- Possession of illegal ammunition and accessories
- Felon with a firearm
- Negligent use of a firearm etc.
Based on the facts of a case, we can help reduce your risk of ending up behind bars for a firearms conviction. There are two ways we can offer assistance:
Fight the Charge
It is not foreign for one to be convicted of a crime they have not committed. Our skilled attorneys understand the law and have in-depth experience in using different defense strategies to prove our clients' innocence.
Take Advantage of Plea Deals
One thing our lawyers have truly mastered over the years is the art of taking advantage of "creative sentencing." Irrespective of how bad the situation appears, you are not doomed until it's over. We can use our good ties with the prosecutors to negotiate for a fair plea deal. Again, depending on the facts and circumstances revolving around a case, we can even get a sentence reduced from jail time to house arrest, counseling, or even community service.
Find an Orange County Criminal Lawyer Near Me
Our comprehensive post barely scratches the surface of California's gun laws. These laws are meant to reduce and prevent gun-related crimes, although their complexity makes it challenging for average gun-owners to understand and abide by the set regulations. Whether you face weapon charges because you intentionally or unintentionally violated the law, we are here to help. We can offer you the best Orange County Criminal Lawyer to educate you on your legal options and offer the assistance needed to avoid a guilty verdict. Contact us on 714-262-4833 for a free, no-obligation consultation.