Carrying a concealed firearm in California without a valid concealed carry weapon (CCW) permit is generally prohibited under Penal Code 25400. Unlike some states, California does not have open-carry exceptions for unloaded firearms, making it illegal to carry an unloaded gun openly in a public place.

If you or a loved one is facing charges related to violating PC 25400, seek immediate assistance from a criminal defense attorney. This is the ideal approach to navigating the legal process effectively. The Bakersfield team at California Criminal Lawyer Group breaks down what carrying a concealed firearm entails, including the defenses you can assert in challenging the charges.

Carrying a Concealed Firearm Under California Law

Penal Code Section 25400 in California makes it a crime to carry a concealed firearm as a criminal offense under the following circumstances:

  • Concealed firearm within a vehicle — Unlawfully carrying a concealed pistol, revolver, or any other concealable firearm within any car under your control or direction is expressly prohibited.
  • Concealed firearm on person — The act of carrying a concealed revolver, pistol, or any other firearm capable of being concealed on your person is deemed unlawful.
  • Causing concealed firearms in a vehicle — It is also an offense to cause a concealed firearm to be carried within a car where you are an occupant.

The prosecution must convincingly prove several vital elements when you are charged with carrying a concealed firearm under PC 25400. He/she must establish that:

  • You carried a pistol, revolver, or other concealable firearm
  • Carrying happened within a vehicle under your control or direction, that you had the firearm on your person, or that you caused a concealed firearm to be carried within a car where you were an occupant.
  • You carried the firearm, knowing it could be concealed.
  • You did not have a valid concealed carry weapon (CCW) permit or any other legal justification for carrying the firearm concealed.

Note: Carrying a firearm openly in a belt holster is not considered concealed.

Let us look at each element in detail to help better understand this crime.

     a) Revolver, Pistol, or Any Other Firearm

A "pistol, revolver, or other firearm capable of being concealed on the person" is essentially any device designed as a weapon expelling a projectile through an explosion or combustion. This firearm is identified by having a barrel shorter than 16 inches or a barrel of 16 inches or more designed to interchange with a shorter barrel.

Additionally, "frame" and "receiver" are fundamental components of a gun, crucial for defining its structure and functionality. The frame, commonly found in handguns, is the central part housing critical components like the trigger mechanism and grip, providing structural support.

Conversely, the receiver is a crucial element in most firearms. It serves as the core structure, housing essential mechanisms for firing and reloading. Its design varies based on the firearm type, whether a rifle, shotgun, or handgun.

So, what is a firearm?

A firearm, as defined under PC 16520(a), is designed to expel a projectile through a barrel using the force of an explosion or other combustion. This classification extends to devices like rockets or rocket-propelled projectile launchers containing explosive or incendiary material, regardless of their intended signaling purposes for emergencies or distress.

PC 25400 outlines that "firearms" include, but are not limited to:

  • Revolvers
  • Pistols
    Rifles (including short-barreled rifles)
  • Handguns
    Shotguns (including short-barreled shotguns), and
  • Tasers

Notably, devices relying on air pressure, like BB guns and pellet guns, are expressly excluded from the legal classification of firearms. They are not combustion-based devices.

Additionally, gun laws are primarily enacted to ensure public safety. Consequently, you risk being charged under PC 25400, even if the firearm is inoperable. This underscores the legal focus on public safety, extending beyond the immediate danger posed by a functioning firearm. Carrying a loaded gun in public without a permit would result in charges under Penal Code 25850.

     b) Carried on a Person

When an item is said to be "carried on the person," it means you have the firearm physically on or about your body. This could involve carrying it in a pocket, holster, or another immediate and direct form of possession.

Therefore, you carry a concealed firearm on your person when a gun is in your pocket or inside a purse, briefcase, or any item you hold. This implies that the gun is not openly visible or discreetly positioned and is not immediately evident to others.

     c) You Knew of the Gun’s Presence

The "you knew about the presence" requirement signifies your awareness of the gun's existence and proximity. It implies a conscious understanding, ruling out accidental possession.

This inclusion acts as a safeguard, preventing unjust convictions for unintentional offenses. This requirement ensures accurate legal consequences for those knowingly involved with firearms by stressing the need for conscious awareness.

     d) Without a Valid Concealed Carry Weapon (CCW) Permit

In California, having or planning a firearm requires obtaining a valid concealed carry weapon permit per Penal Code Section 26150. This law dictates the procedures for issuing licenses to carry concealed firearms.

To secure a concealed carry license for a pistol, revolver, or other concealable firearm, applicants must show:

  • Good moral character
  • Provide a valid reason for the license
  • Establish residency or a substantial connection to the county and
  • Complete a mandatory training course

Once these criteria are met, the sheriff can issue a concealed carry license or, in counties with populations below 200,000, a permit to carry a loaded and exposed firearm.

Sheriffs could collaborate with municipal police departments to efficiently process applications, amendments, or renewals. This collaborative approach applies explicitly to applicants residing within the city covered by the processing agreement.

Note: Possessing a CCW permit issued by another state does not grant legal authority to carry a concealed firearm in California. There are no reciprocity agreements for CCW permits between California and other states. Therefore, individuals intending to carry a concealed weapon in California must apply for and obtain a CCW permit directly from a California law enforcement agency with jurisdiction in the county of residence or work.

Certain factors would make you ineligible for a CCW permit. They include the following:

  • If you have specific criminal convictions, especially felonies
  • A history of mental health issues, like involuntary commitments
  • Being subject to specific restraining orders
  • Convictions related to domestic violence
  • A history of substance abuse or addiction
  • If you are presently on probation or parole
  • Providing false information during the application process could result in ineligibility.
  • If you cannot establish a valid reason ("good cause") for needing a CCW permit

Individuals Who Are Exempt from Prosecution for Carrying a Concealed Weapon

Exemptions from prosecution under PC 25400, which addresses carrying concealed firearms without a valid CCW permit, include specific groups:

  • Licensed firearms dealers — Individuals with a valid license as firearms dealers
  • Peace officers — This covers both active and honorably retired peace officers
  • Members of the U.S. military — Active members of the United States military
  • Members of target shooting clubs or organizations — Those actively involved in target shooting clubs or organizations
  • Bank guards or messengers — Individuals employed as bank guards or messengers.
  • Licensed hunters or fishers — Individuals with valid hunting or fishing licenses using or transporting firearms for these activities.

However, even with these exemptions, specific conditions must be met. These conditions include ensuring the firearm is unloaded or used exclusively during designated activities.

Constitutionality of Californian's Concealed Carry Laws

In June 2016, the federal 9th Circuit Court of Appeals definitively upheld the constitutionality of PC 25400 in the Peruta v. San Diego case.

Despite the ongoing constitutional debates, the federal court's ruling in the Peruta case clarified that the Second Amendment does not afford concealed weapons the same protection as other firearms rights. The Supreme Court's refusal to review the challenge solidifies the continued effectiveness of PC 25400.

Fighting Concealed Weapon Charges

You can challenge the charges despite their gravity. After assessing the facts of your case, your attorney will determine the suitable defense strategy that would result in the best legal outcome. Here is a look at some of the potential defenses your attorney could use:

     a) You Have a Valid CCW Permit

Even if you possess a valid CCW permit, you could still face charges for carrying a concealed weapon under certain circumstances. Despite holding a valid license, these situations could raise legal concerns about the lawfulness of carrying a concealed firearm. Potential reasons for these circumstances include:

Violating Permit Conditions

Failure to comply with specific conditions or restrictions outlined in your CCW permit could result in charges for carrying in restricted areas. You could highlight that you did not intentionally act or were unaware of the permit’s restrictions.

 Expired or Invalid Permit

You can inadvertently carry a concealed weapon with an expired, suspended, or revoked CCW permit.

This does not mean you do not necessarily have a permit. Therefore, you can ask the court for an opportunity to promptly address permit issues and provide evidence of renewal or compliance.

Carrying in Restricted Zones

You can be charged for carrying in restricted zones despite a valid permit. In this situation, you can challenge the charges by demonstrating a lack of awareness of restrictions or presenting mitigating circumstances.

Failure to Disclose During Law Enforcement Interaction

In some cases, the charges could arise from failing to disclose possession of a concealed weapon to law enforcement during an interaction. Thus making the police officers to reasonably believe you did not have a valid permit. In this case, your attorney could reasonably explain the oversight and highlight your compliance with the law.

In response to these situations, challenge the charges by asserting the possession of a valid CCW permit. This defense strategy involves demonstrating that, despite the circumstances, your concealed weapon possession aligns with the legal requirements of your valid license.

     b) You Were Unaware You Were Carrying the Firearm

You can challenge the accusations by claiming unawareness of carrying the gun. If you can provide proof or present a compelling argument demonstrating your lack of knowledge about the firearm, it could serve as a strategic defense in your case.

It is plausible that someone else, unbeknownst to you, placed a firearm in your jacket, purse, briefcase, or vehicle. If you carry a concealed firearm without knowing its presence, the courts will likely not find you guilty.

     c) You Were Close to Your House or Place of Work When You Had the Gun

If you rightfully own or possess a gun, you are permitted to carry a concealed firearm without restriction within the bounds of your home or in a business you own. In most cases, these rights do not extend to workplaces if you are an employee.

Additionally, this liberty, however, does not generally cover individuals living or working in their cars. Taxi-cab drivers are exempt from this restriction. They can discreetly keep weapons within their vehicles without violating California's CCW law.

     d) The Firearm Was Necessary to Act in Self-defense

You have the legal right to argue that you carried the firearm in self-defense. In the context of concealed carry charges, asserting self-defense as a justification can be a viable defense strategy. This involves demonstrating that you reasonably believed there was an imminent threat to your life or the lives of others. Therefore, carrying a concealed firearm was a necessary and proportionate response to protect yourself or others from harm.

It is crucial to provide evidence or support your claim with specific circumstances that reasonably led you to believe in the need for self-defense.

     e) You are a Victim of an Illegal Search and Seizure

It could breach your Fourth Amendment rights if law enforcement searches for your home, business, or car without a warrant or probable cause.

The Fourth Amendment safeguards against unjust searches and seizures. It dictates that searches and seizures must be backed by a warrant issued upon probable cause, except when a recognized exception applies.

In cases where police execute a search without a warrant or meet the criteria for a recognized exception, any evidence procured during said search could be deemed inadmissible in court. Individuals retain the right to contest such searches and seizures. The argument will be that the officers violated their constitutional rights.

Distinguished exceptions to the Fourth Amendment's warrant prerequisite encompass specific situations. These are circumstances where law enforcement could conduct searches or seizures without securing a warrant based on probable cause. Some prevalent exceptions include:

  • Consent — If an individual willingly consents to a search, law enforcement may proceed without a warrant.
  • Search incident to arrest — After a lawful arrest, police could search the detained person and the immediate surroundings for officer safety and evidence preservation.
  • Exigent circumstances — Law enforcement could search without a warrant in emergencies demanding swift action, such as averting harm or evidence destruction.
  • Plain view — If law enforcement spots evidence of criminal activity or contraband in plain sight from a lawful vantage point, they can seize it without a warrant.
  • Hot pursuit — When police chase a suspect entering a private residence, they can enter and search without a warrant.

Nevertheless, the assessment of whether a search was conducted lawfully often pivots on the specific details of the situation.

     f) You are a Victim of Police Misconduct

Facing accusations of police misconduct is a grave matter. If an officer is found to engage in actions like:

  • Deliberately planting evidence
  • Coercing confessions
  • Providing false information in a police report
  • Delivering misleading testimony during legal proceedings, or
  • Violating civil rights constitutes serious misconduct.

In these instances, your attorney will file a Pitchess motion to access the officer's personnel records containing information about past complaints, disciplinary actions, or dishonesty. This data aims to challenge the officer's credibility or establish a pattern of misconduct.

A Pitchess motion, named after the California Supreme Court case Pitchess v. Superior Court, is a crucial legal procedure in California. It allows the discovery and use of law enforcement officer's personnel records in cases involving allegations of police misconduct.

A successful Pitches motion could result in the dismissal of your case, especially if the inadmissible evidence the prosecution relied on was material in their case against you.

Consequences of a Conviction for Carrying a Concealed Weapon

Carrying a concealed firearm in violation of PC 25400 can result in misdemeanor or felony charges. The charges depend on the facts of your case; by extension, the penalties vary depending on the charges you will be convicted of.

     a) Misdemeanor Violations

Without aggravating circumstances, you will face misdemeanor charges. Convictions for misdemeanor violations result in the following penalties:

  • A maximum of one year in jail
  • A fine not exceeding $1,000 or both
  • Summary or misdemeanor probation instead of jail time

Some of the aggravating factors prosecutors consider include the following:

  • A criminal past
  • Establishing that you intended to use the concealed gun
  • A history of violence
  • Failure to cooperate with law enforcement officers during the arrest

All these factors determine whether you will face a wobbler or a straight felony charge.

     b) Wobbler Charges

PC 25400 becomes a "wobbler" when, in addition to carrying a concealed firearm on your person or in a car, you have:

  • A prior misdemeanor conviction for a crime against a person or property or
  • For narcotics or dangerous drug offenses.

Alternatively, it becomes a wobbler if both of the following conditions are met:

  • Your firearm is loaded, or you have accessible ammunition and
  • You are not listed as the registered owner of the loaded handgun with the Department of Justice.

An arrest can occur under this last category if there is probable cause that you are not listed with the Department of Justice as the gun's registered owner.

In California, a "wobbler" is an offense that prosecutors can charge as either a misdemeanor or a felony. The determination depends on the circumstances of the crime and your criminal history.

If charged as a misdemeanor, penalties for violating PC 25400 include:

  • Misdemeanor or summary probation
  • Up to one year in jail
  • A fine not exceeding $1,000, or both

As a felony, the consequences involve:

  • Probation with up to one year in jail, or
  • 16 months, or 2 or 3 years in county jail
  • A fine of up to $10,000 or both

     c) Straight Felonies

You will likely face straight felony charges for violating PC 25400 if the following are true:

  • You have a prior felony conviction or any other firearm offense in California
  • You actively participate in a criminal street gang
  • The firearm in your possession is stolen, and you were aware of it or had reasonable cause to believe it was stolen.
  • Your possession of the gun is not per the law
  • You are prohibited from owning or possessing a firearm under California's felon with a firearm law, PC 29800
  • You are prohibited from owning or possessing a firearm under PC 29900 for committing or attempting to commit a violent offense. These offenses include rape, murder, rape, robbery, lewd acts on a child, carjacking, and kidnapping.

A conviction will result in the following penalties:

  • Probation with up to one year in jail, or
  • 16 months, or 2 or 3 years in jail
  • A fine of up to $10,000 or both

Penalties If You Have a Prior Firearm Conviction

If you are found guilty of a PC 25400 violation and have a prior conviction for gun-related offenses, you could potentially be sentenced to a minimum of 3 to 6 months in jail. The legal proceedings also take into account past convictions, including those under Penal Code 245(a)(1) PC for "assault with a deadly weapon," Penal Code 246 PC for "shooting at an inhabited dwelling house or car," and Penal Code 417 PC, addressing California's "brandishing a weapon" law.

Find a Criminal Defense Attorney Near Me

Addressing charges related to carrying a concealed weapon is a weighty affair, necessitating the expertise of a seasoned legal professional, ideally a proficient defense attorney. These allegations often entangle intricate legal intricacies, and a skilled attorney can deftly steer you through the legal proceedings, meticulously analyze the evidence, and construct a strategic defense attuned to the distinctive facets of your case. Contact Bakersfield attorneys at the California Criminal Lawyer Group for further assistance. Call us at 661-750-8230.