As the state strives to balance public safety with individual rights, you may find yourself entangled in the complex web of firearm regulations. For many, the prospect of facing charges related to carrying a loaded firearm can be overwhelming and fraught with legal uncertainties.

We invite you to contact us at California Criminal Lawyer Group if you have been charged with the criminal offense of carrying a loaded firearm. Our team of criminal defense attorneys in Bakersfield will help you build a solid defense strategy.

California Legal Provisions for Carrying a Loaded Firearm

The legal provisions for this criminal offense are primarily outlined in the Penal Code Section 25850. As per  Section 25850(a), an individual is generally prohibited from carrying a loaded gun in a public area.

Section 25850(c)(6) defines a loaded firearm as one where there is the presence of a round inside the firing chamber. A gun can also be categorized as loaded if the magazine inside the firearm is loaded. There are certain exceptions outlined in Section 25850(d) that allow the carrying of loaded firearms in specific circumstances, such as on private property with the property owner's permission, or when the person is a peace officer or a member of the military.

Why is Carrying Loaded Firearms Unlawful?

The prohibition against carrying loaded firearms, as outlined in laws such as California Penal Code 25850, is rooted in concerns related to public safety and the prevention of potential violence or accidents. Several reasons contribute to why carrying a loaded firearm is considered unlawful, such as the following:

  • Public safety — The primary objective of firearm regulations is to ensure the safety of the public. Carrying a loaded gun in public spaces raises the risk of accidents, altercations, and the possibility for the firearm to be used in a dangerous or unlawful manner.
  • Accidental discharge — Loaded firearms increase the likelihood of accidental discharges, which can result in unintended injuries or fatalities. Accidents can happen if a person mishandles the firearm or if there is a mechanical failure.
  • Prevention of criminal activity — Restricting the carrying of loaded firearms in public is a preventive measure to deter criminal activity. It aims to reduce the likelihood of individuals using firearms to commit crimes, such as robbery or assault.
  • Law enforcement oversight — Limiting the carrying of loaded firearms allows law enforcement to have greater control over potentially volatile situations. It enables them to assess and manage potential threats more effectively, ensuring the safety of both individuals and officers.
  • Risk of escalation — The presence of loaded firearms in public settings can escalate minor disputes or conflicts into more serious incidents. Restricting the carrying of loaded firearms helps mitigate the risk of confrontations escalating to violence.
  • Promotion of responsible firearm ownership — Prohibiting the carrying of loaded firearms without a legitimate reason encourages responsible firearm ownership. It reinforces the idea that firearms should be handled with care and carried responsibly to minimize risks to oneself and others.

What the Prosecution Must Prove

In a criminal case involving the charge of carrying loaded guns, the prosecution, representing the state, must prove specific elements for the defendant to be convicted. These elements include the following:

  • Carrying the firearm.
  • Loaded firearm.
  • Location.
  • Knowledge.
  • Lack of legal justification.

Note that the burden of proof rests entirely on the prosecution, and they must convince the trier of fact (judge or jury) that the defendant committed the alleged offense. Defenses may be raised by the defendant, challenging any of these elements or presenting justifications for their actions.

Individuals facing charges related to carrying loaded firearms should consult with a qualified criminal defense attorney to assess the specific details of their case and determine the most effective defense strategy based on the elements the prosecutor must prove. Here is a brief discussion of each of these elements:

Carrying the Firearm

This element involves showing that the defendant physically possessed or exercised control over the gun and was actively carrying it at the time of the alleged offense. The prosecution must show that the defendant had physical possession of the firearm. This means the firearm was within the defendant's immediate control or on their person. Whether the firearm is in a holster, a pocket, or held in the hand, the prosecution must show that the defendant had direct physical control.

In some cases, the concept of constructive possession may come into play. This can occur when the accused person does not have the firearm on their person but has control over the area where the firearm is located, such as a vehicle. The prosecution would need to demonstrate that the accused person had knowledge of the firearm's presence and the ability to exercise control over it.

The prosecutor may have to establish that the accused person had the intent to exercise control over the firearm. This goes beyond mere proximity to the firearm and requires demonstrating that the defendant knowingly possessed and carried the firearm.

Carrying a firearm can take various forms, including carrying it openly or concealed. Open carry involves the firearm being visible to others, while concealed carry means the firearm is not immediately visible.

California law specifies that the firearm must be "on or about the person" of the defendant. This emphasizes the close proximity of the firearm to the individual and distinguishes it from situations where the firearm is at a greater distance.

The defense may challenge the prosecution's evidence regarding possession, control, or intent, while the prosecution must present a compelling case to establish that the defendant was indeed carrying the firearm as defined by the relevant statute. Legal defenses, such as lack of knowledge or lawful justifications for carrying the firearm, may also be raised to contest this element.

Loaded Firearm

This element is a key component in charges related to carrying loaded firearms. To secure a conviction, the prosecution must prove that the firearm possessed by the defendant met the legal meaning of being loaded.

To establish that a gun is loaded, the prosecution must show that there is live ammunition in the firearm. This can include a round in the firing chamber and a loaded magazine inserted into the firearm.

Generally, a firearm is considered loaded if a live round in the firing chamber is present and ready to be discharged. This condition signifies the immediate readiness of the firearm to be fired.

Alternatively, a firearm may be deemed loaded if there is a loaded magazine attached to it. Even if there is no round in the firing chamber, a loaded magazine may suggest that the gun can quickly be made ready to fire.

The prosecution may not necessarily need to prove that the accused person intended to use the firearm but rather that the firearm was in a condition that could be readily used. This element focuses on the potential for the firearm to be used as a weapon.

The concept of immediate readiness is often central to the loaded firearm element. A firearm is considered loaded if it can be promptly and easily used to discharge a projectile.

In some cases, the prosecution may need to establish that the accused person was aware that the firearm was loaded. This element speaks to the defendant's state of mind at the time of the alleged offense.

The defense may challenge the prosecution's evidence regarding the firearm's condition, arguing that it was not loaded according to the legal definition. Additionally, defenses related to the absence of knowledge or lawful justifications for carrying the firearm may be presented. The prosecution, on the other hand, must carefully present evidence demonstrating that the firearm met the legal criteria for being loaded as defined by applicable statutes.

Location

The element of location is a significant aspect in cases involving the charge of carrying a loaded gun. The prosecutor must establish that the accused person was in a specific location at the time of the alleged offense to determine whether the act violates the law.

Carrying a loaded firearm is prohibited in public places. The term "public place" generally refers to areas that are openly accessible to the public, such as streets, parks, sidewalks, and other areas where people commonly gather.

The prohibition on carrying loaded firearms in public places may not apply to private property, especially if the person carrying the firearm has the legal right to be on that property. Certain locations, such as government buildings, schools, or other sensitive areas, may have additional restrictions on carrying firearms, whether loaded or unloaded.

Individuals with valid concealed carry permits may be exempt from the general prohibition in certain locations. However, even with a valid permit, there are often restrictions on carrying firearms in specific places, such as government buildings or schools.

The defendant may challenge the prosecutor's evidence regarding the location where the alleged offense occurred, emphasizing whether it was genuinely a public area or if they had a legal right to carry the gun in that specific location. Conversely, the prosecution must present evidence demonstrating that the accused person was in a location covered by the statute, and that the act of carrying the loaded firearm in that context was unlawful.

Knowledge

The element of knowledge is a crucial aspect in cases involving the charge of carrying a loaded gun. It pertains to the defendant's awareness or understanding of certain key factors related to the firearm they are carrying.

Sometimes, the prosecutor may have to establish that the accused person knew the firearm they were carrying had been loaded. This goes beyond the physical act of carrying the firearm and delves into the defendant's state of mind at the time of the alleged offense.

The element of knowledge is often tied to the defendant's intent. Prosecutors may need to show that the accused person knew the firearm was loaded and, by carrying it, demonstrated an intention to possess a loaded gun in a particular location.

Establishing knowledge is a subjective matter, requiring evidence that the defendant personally knew the firearm was loaded. This can be inferred from the circumstances, statements made by the defendant, or other relevant evidence.

In some cases, the law may recognize constructive knowledge, meaning that even if the accused person did not have actual knowledge of the loaded condition, they should have known or reasonably known. Constructive knowledge may be established through evidence indicating that the defendant should have been aware of the firearm's loaded status.

Knowledge can also be inferred from the defendant's reckless or negligent behavior. If the circumstances surrounding the carrying of the firearm suggest a lack of due care or conscious disregard for the loaded condition, the prosecution may claim that the defendant knew or should have known.

Lack of Legal Justification

In California, the element of lack of legal justification is a critical aspect in cases involving the charge of carrying a loaded firearm. This element refers to the prosecution's obligation to show that the accused person lacked a valid legal reason or justification for carrying the loaded firearm.

California law recognizes certain exceptions or legal justifications that may exempt individuals from the general prohibition on carrying a loaded firearm. These exceptions might include circumstances where carrying the loaded firearm could be considered legally justified.

Individuals who own valid carry permits issued by the state of California may be exempt from the general prohibition on carrying a loaded firearm. These permits are typically issued to individuals who meet specific eligibility criteria and have undergone background checks and training.

Carrying a loaded gun may be legally justified if the individual reasonably believes that it is necessary for self-defense. California law recognizes the right of individuals to use reasonable force, including deadly force, to protect themselves or others from imminent harm.

Certain occupations or professions may have legal justifications for carrying loaded firearms. This may include police officers and other individuals authorized to carry firearms as part of their job duties.

Moreover, there are specific regulations regarding the transportation of firearms in California. If an individual is transporting a loaded gun in compliance with these regulations, it may be considered legally justified. Additionally, some locations, such as shooting ranges or private properties where the owner has granted permission, may allow the carrying of loaded firearms.

In instances where the defendant asserts a legal justification for carrying a loaded firearm, the burden may shift to the defense to present evidence supporting the claim. The defense team may need to demonstrate that the defendant fell within one of the recognized exceptions or had a valid legal reason for carrying the loaded firearm.

The Penalties for Carrying A Loaded Firearm

This offense is typically classified as a misdemeanor in California. Upon conviction, you will receive a county jail sentence of a maximum of one year or get ordered to pay a fine not exceeding $1,000.

The judge will order you to serve a county jail sentence of three or more months if you have a prior conviction for certain offenses, including assault with a deadly weapon, brandishing a weapon, or shooting at an inhabited car or house. Additionally, the prosecutor may consider to charge you with this offense as a felony if:

  • You were not the registered firearm owner.
  • You have a prior conviction for some misdemeanor crimes, including certain drug offenses.

In that case, you will be sentenced to a jail term of a maximum of three years or be ordered to pay a fine not exceeding $1,000. Note that you will automatically be charged with carrying a loaded firearm as a felony if:

  • You had a prior felony or firearm conviction.
  • You had stolen the firearm.
  • You are legally restricted from possessing or owning a firearm.
  • You belong to a street gang.
  • You unlawfully possessed the firearm.

As an automatic felony, this offense attracts a jail sentence not exceeding three years or a $10,000 fine. The length of imprisonment can vary based on factors such as prior criminal history, the presence of aggravating circumstances, and the severity of the violation.

In some cases, the court may impose probation as part of the sentence. Probation typically comes with conditions, including regular check-ins.

Moreover, you may lose your right to own or possess a firearm. A conviction for carrying a loaded firearm will also result in a criminal record, which can have long-term consequences, including difficulties in securing employment, housing, or professional licenses. Foreign citizens, including those with legal permanent resident status, may face negative immigration consequences, including ineligibility for certain immigration benefits or deportation, due to the criminal conviction.

Given the potential seriousness of penalties and the complexities of firearm laws, individuals facing charges related to this criminal offense should consult with a skilled criminal defense attorney. A lawyer can provide guidance tailored to the specific circumstances of the case, assess possible defenses, and strive to achieve the best possible outcome.

Legal Defenses to Carrying a Loaded Gun

Legal defenses to charges of carrying a loaded firearm can vary based on the circumstances of each case. Here are several potential defenses that individuals facing such charges may consider:

  • No knowledge — If the prosecution cannot prove that the defendant was aware the firearm was loaded, the defense team may argue a lack of knowledge. Establishing that the accused person did not know about the condition of the firearm could undermine the prosecution's case.
  • Lawful ownership — If the defendant is the lawful owner of the firearm and can demonstrate legal possession, it may serve as a defense. This defense is particularly relevant in situations where carrying a loaded gun is lawful, such as in the case of individuals with valid concealed carry permits.
  • Self-defense — The defense of self-defense may apply if the defendant carried the firearm out of a reasonable belief that it was necessary for their personal safety or the safety of others. This defense emphasizes the individual's right to protect themselves in certain situations.
  • Invalid search and seizure — If law enforcement conducted an unlawful search and seizure, resulting in the discovery of the firearm, the defense can challenge the admissibility of the evidence. If the search violated the Fourth Amendment, the evidence may be suppressed.
  • Unlawful arrest — If the defendant's arrest was unlawful, it could impact the admissibility of evidence and the overall validity of the charges. The defense team may argue that law enforcement lacked probable cause for the arrest.
  • Constitutional violations — If the accused person's constitutional rights were violated during the investigation or arrest, such as the right to remain silent or legal representation, it could be a basis for a legal defense.
  • Improper evidence handling — The defense team may challenge the handling, preservation, or presentation of evidence related to the loaded firearm. If there are inconsistencies or issues with the chain of custody, it may weaken the prosecution's case.
  • Invalid stop or detention — If law enforcement did not have a valid reason to stop or detain the defendant, the defense may argue that the entire interaction was unlawful. This may be relevant in cases where the initial encounter led to the discovery of the loaded firearm.
  • Exemptions and legal justifications — If the defendant falls within a recognized exemption or legal justification for carrying the firearm, such as being a peace officer or having a valid permit, this may serve as a defense.

It is crucial for individuals facing charges related to carrying a loaded firearm to consult with a qualified criminal defense lawyer. An attorney can assess the specific details of the case, identify applicable defenses, and work to build a robust legal strategy tailored to the individual's situation.

Find a Bakersfield Criminal Defense Attorney Near Me

Facing charges related to carrying loaded firearms is a serious matter that requires strategic and knowledgeable legal representation. As seasoned criminal defense attorneys, we at California Criminal Lawyer Group in Bakersfield recognize the complexities of these cases and the impact they can have on your life.

Our commitment is to provide the strong defense you deserve, diligently challenging the prosecution's case, exploring all viable legal defenses, and ensuring your rights are protected throughout the legal process. Call us at 661-750-8230 for a free consultation.