In California, it is a crime for carrying a loaded firearm in a vehicle or public place. CA Penal Code Section 25850 is usually charged as a misdemeanor, but since it is a wobbler it can be charged as a felony as well.
PC 25850 reads:
“A person is guilty of carrying a loaded firearm when the person carries a loaded fire on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”
PC 25850 should be distinguished from a similar crime, PC 25400 which makes it a crime to carry a concealed firearm. These two Penal Code Sections, PC 25850 and PC 25400 are often charged together.
The offense seems pretty straightforward. Firearms include guns, shotguns, rifles, and even tasers. It does not include pellet and BB guns though. A public place is somewhere generally accessible and used by the public.
A charge of PC 25850 can be defended in a number of ways.
First, you may not have realized you were carrying a loaded firearm. For instance, you go to the airport for a flight, and when your bag goes through the metal detector a loaded firearm is discovered. It turns out your husband put it there to keep you safe. Because you did not have the mens-rea or mental state to commit this offense, it should be dismissed.
Second, your charge can be dismissed if you were not in a public place or street. So, if the gun was found in your home or place of work (PC 26035). You can also get a charge of PC 25850 dismissed if the firearm was not loaded. However, you can be charged with PC 26350(a) for carrying an unloaded firearm in public.
Finally, there is an exception to carrying a loaded firearm in public if you are in grave danger and reasonably feel you need the gun to protect yourself (PC 26045). Under PC 26045 you can carry a gun when either 1) you reasonably believe that you, your property, or a third-person is in immediate, grave danger and the possession of the carrying loaded firearm in public is necessary for your preservation or 2) you have a restraining order against someone else and you reasonably believe you are in grave danger.
Other guns laws to be aware of include:
“Dan” was a very bright, ethical and law-abiding client with no criminal history. He had a nuclear family with two beautiful bright children whom he adored. Unfortunately, after the financial crisis, he fell upon hard times which led to divorce and brief periods of homelessness. During these periods of homelessness, he would legally sleep in his car on the sidewalk of a residential neighborhood where his kids lived so he could see them and drive them to school in the mornings.
One night, a skittish neighbor called the police on him. The police knocked on his window to do a “welfare check” as my client slept in his car. Upon his waking up, the police asked Dan if he had any weapons in the car. Dan spoke up truthfully and indicated he had a gun in his dashboard. The reason he carried a gun was he has been the victim of multiple burglary attempts of his car while he had slept in it and kept a loaded gun for protection in his dashboard when he slept. He was immediately arrested and charged with PC 25850 (Carrying a Loaded Firearm) and PC 25400 (Carrying a concealed Firearm on Person or in a Vehicle).
Had Dan locked his unloaded firearm in the trunk of the car or a locked container he would have been okay. If his firearm was loaded and in the trunk or a locked container he could have been charged with PC 25400(a)(6). Even if it wasn’t loaded, if the bullets were nearby and not in a separate container or “readily accessible,” Dan could have been charged under this section.
Be that as it may, Dan was technically guilty of carrying a loaded firearm (PC 25850) and carrying a concealed firearm on his person (PC 25400). Dan was a great guy and I generally try to abide by the following policy goal: If someone walks out into my office without a criminal record, wherever possible, they will walk out without a criminal record. In this case, we had to be creative: we did some deep digging and found that ever since Dan lost income from his financial crisis and had been divorced, Dan had suffered from bouts of depression. This made him eligible for mental health diversion under PC 1001.36 because depression is a mental disorder identified in the Diagnostic and Statistical Manuel (DSM) of Mental Disorders and it played a “significant role in the commission of the charged offense.” So we hired a psychologist to say so and argued that Dan was entitled to mental health diversion. Obviously, his outstanding moral character and lack of criminal history were helpful in making the case.
After extensive arguments, and vehement objection of the City Attorney, the Judge GRANTED the mental health diversion. Dan was required to do counseling for his depression, and after a series of counseling sessions, Dan’s gun charges were both dismissed! Another happy ending at the Esfandi Law Group: Dan had walked into the Esfandi Law Group’s office without a criminal record, and had walked out without one as well.
Regardless of the scenario, carrying a loaded firearm is a serious charge. To ensure the best possible outcome for your case, it is important to discuss your situation with an effective Criminal Defense Lawyer.
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