Carrying a Concealed Weapon
California Penal Code (PC) section 25400
California Penal Code (PC) section 25400 makes it a crime to carry a concealed firearm on your person or in a vehicle. Under PC 25400, a firearm is (i) a device, (ii) designed to be used as a weapon, (iii) from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. The most often used firearms capable of being concealed are, a pistol, a revolver, rifle, shotgun, Tasers or any other firearm capable of being concealed upon the person.
As an aside, California's "concealed carry" laws may be in jeopardy, thanks to Peruta vs. County of San Diego, a landmark federal court case suggesting that the current laws are unconstitutional.
California PC section 25400 is separate and distinct from:
Penal Code 25850 PC, California's law against carrying
a loaded firearm, and
• Penal Code 26350 PC, openly carrying an unloaded firearm in public.
Under California PC section
25400, the prohibited acts are:
• Carrying the firearm concealed within any vehicle under your control or direction;
• Carrying the firearm concealed upon your person; OR
• Causing the firearm to be carried concealed within any vehicle in which you are an occupant.
There are three requirements ("elements of the crime") under Penal Code 25400:
1 The first requirement is satisfied when you conceal a firearm on your person or in a vehicle. This weapon must be at least partially concealed, even if it is otherwise unidentifiable as a weapon, although, under PC 25400, a firearm carried in one's belt is not considered concealed.
2. The second requirement is satisfied when you knew about the presence of the concealed weapon, and
3. The third requirement is met when the firearm was substantially concealed. This means that for the most part or essentially the weapon is concealed.
If you are carrying a weapon in plain view, you are not guilty of violating this particular law. You may, however, be violating California Penal Code 26350. Penal Code 26350 makes it a crime to openly carry an exposed and unloaded handgun outside a vehicle in a public place.
Felony or Misdemeanor
Carrying a concealed weapon under PC 25400 may be charged as a felony or a misdemeanor. In certain instances, it must be charged as a felony under California law.
• When charged as a Misdemeanor
Absent substantial aggravating circumstances, carrying a concealed firearm in violation of California Penal Code 25400 PC is a misdemeanor. However, when there are aggravating factors, or in some instances one serious aggravating factor, the prosecutor may attempt to charge carrying a concealed weapon as a felony.
• When charged as a Felony or Misdemeanor.
When there are aggravating factors of any level, a violation of Penal Code 25400 may be treated as a felony or a misdemeanor. Whether or not the offense is charged as a felony or misdemeanor depends on the following factors:
1. you were previously convicted of a misdemeanor crime against a person or property, or of a narcotics or dangerous drug crime, OR both of the following:
2. your firearm is loaded (or
you have the ammunition in a location that is readily
accessible to you), AND
- you are not listed as the registered owner of the loaded handgun with the Department of Justice. You can be arrested under this last category as long as an officer has probable cause to believe that you are not listed with the Department of Justice as the registered owner of the gun.
As stated, when these above
factors are present the prosecutor may charge the offense as a
felony or a misdemeanor as his/her discretion depending on the
circumstances of the offense, and your criminal history.
• When Charged as a 'Straight' Felony.
Carrying a concealed firearm under Penal Code 25400 must be charged as a "straight" felony if any of the following is true:
1. you have previously been
convicted of a felony or any other California firearm offense,
2. the firearm is stolen, and you knew, or had reasonable cause to believe, that it was stolen.
3. you are an active participant in a criminal street gang;
4. you are not in lawful possession of the firearm,
5. you are prohibited from owning or possessing a firearm under Penal Code 29800 PC, California's felon with a firearm law, or
6. You are prohibited from owning or possessing a firearm under Penal Code 29900 PC, for committing... or attempting to commit... a violent offense such as (but by no means limited to): Murder, Rape, Robbery, Carjacking or other serious felonies.
Penalties Penal Code
25400 PC punishes carrying a concealed firearm.
Misdemeanor Carrying a Concealed Weapon
If convicted of misdemeanor carrying a concealed firearm under Penal Code 25400, you face: If convicted of Misdemeanor carrying a concealed firearm, you face:
1. Up to one (1) year in a
county jail, and/or
2. A maximum $1,000 fine
Alternatively, you could be granted misdemeanor (summary) probation.
If you are given misdemeanor probation, you will serve little or no jail time. Whether or not you are sentenced to probation depends on several factors the most importantly being your past criminal history, your history of violence and other factors.
Carrying a Concealed Weapon
If convicted of felony carrying a concealed firearm, you face:
1. Formal Probation with up to one year of county jail; a maximum $10,000 fine; or
2. From 16 months, to two (2) or three (3) years in California state prison
In addition, if you are convicted of any concealed firearm violation, whether charged as a misdemeanor or a felony, and you have previously been convicted of:
(1) Penal Code 245(a) (1) PC "assault with a deadly weapon",
(2) Penal Code 246 PC "shooting at an inhabited dwelling house or car", or
(3) Penal Code 417 PC, California's "brandishing a weapon" law,
you must serve a minimum of between three and six months in a county jail. Thus, even if you are convicted of a misdemeanor carrying a concealed weapon and would ordinarily be sentenced to probation, under this rule you would still have to serve between three to six months in a county jail.
The only exception to the foregoing sentencing requirements is the unusual case where the interests of justice would be best served by granting probation and suspending the minimum jail time.
Contact the Lee Law Group for additional information on penalties for this offense.
• Your right to own/possess firearms after a Penal Code 25400 conviction
A misdemeanor conviction for carrying a concealed weapon will not by itself revoke your right to own or possess a firearm, unless you are adjudged a ward of the juvenile court based on a misdemeanor conviction. In that case, you will be prohibited from owning or possessing a firearm until you are 30 years old.
A felony conviction for carrying a concealed firearm subjects you to a lifetime ban from owning or possessing a gun in California unless your firearms rights are restored. (See below)
The ban applies both to adults, and to minors who were convicted when tried as adults.
• Restoring your Gun rights.
If you are convicted of carrying a concealed weapon as a felony, restoring your firearm rights is a two-step process. One, we petition the court to have your felony reduced to a misdemeanor, and two, we file a petition to have the charges dismissed. If you are successful, your gun rights will be restored. Otherwise, the only way to restore your California gun rights is to obtain a California Governor's pardon.
• Exempt from Prosecution for Penal Code 25400 Carrying a Concealed Weapon
Some people are exempt from
prosecution under California's carrying a concealed firearm
law. This means that they will not be prosecuted under PC
25400 for carrying a concealed weapon. These include, but are
not limited to:
- peace officers (whether active or honorably retired),
- licensed firearms dealers,
- members of the U.S. military,
- bank guards or messengers,
- members of target shooting clubs or organizations and
- licensed hunters/fishers who are using or transporting their weapons for these activities.
And even the above exceptions
contain conditions... such as that the gun be unloaded, or be
used only during certain activities. This is why it is
important to consult with a criminal defense attorneys such as
the Lee Law Group are such attorneys, who understand the
complex nature of California's gun laws.
Contact the Lee Law group if you are charged with carrying a concealed weapon, whether a felony or a misdemeanor. Some possible common legal defenses we may use are:
Lack of knowledge
You didn't know you were carrying the firearm. Often we forget what was put in our vehicles or some other person stored a weapon in our vehicle without our knowledge or consent. Since one of the requirement (or elements) necessary to be convicted of carrying a concealed weapon is knowledge of the presence of the concealed weapon, if you can prove that you did not have this knowledge you will not be convicted.
2. Not "carrying" the weapon
- If you can prove that the gun was in the trunk or in a locked container in your vehicle, then it is not readily accessible to you and thereby, you are not "carrying" it under the law. Or
- If the concealed weapon was within your residence or place of business, again, you are not "carrying a concealed weapon" but it is a stationary means of protection for your home or business.
3. Legal authorization
Of course, if you can produce a license or other form of authorization you will not be prosecuted.
4. Violation of your constitutional rights
If the weapon was obtained as the result of an illegal search and seizure and thereby your constitutional rights were violated, the case should be dismissed based on this violation.
If you carried the weapon because of an immediate threat to you or your family, i.e., in your self-defense or the defense of others around you, the case may be dismissed.
6. Police misconduct
On rare occasions, law enforcement may act in ways that are not direct constitutional rights violations but are still contrary to the law. When this occurs, the Lee Law Group will work to see that this misconduct is exposed and any resulting charges are dismissed.
7. Exempt Status
If you or your friends can show that you are in an exempt class (see above) you should not be prosecuted.
Contact the Lee Law Group and we will fight for you!