Carrying a Concealed Weapon Laws
California Penal Code 25400 pc

California Penal Code 25400 PC makes it a crime to carry a concealed firearm on your person or in a vehicle.1 This charge is separate and distinct from:

  • Penal Code 25850 PC, California's law against carrying a loaded firearm,2 and
  • Penal Code 26350 PC, openly carrying an unloaded firearm in public.3

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.

We are a law firm of former police and former prosecutors that focuses on defending clients charged with violating California gun laws.

In this article, our California criminal defense lawyers4 will address the following:

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1. Legal definition of "carrying a concealed firearm"

1.1. Elements of the crime of carrying a concealed weapon

1.2. Meaning of "concealed"

1.3. "Pistol, revolver, or other firearm capable of being concealed upon the person"

1.4. Definition of "firearm"

1.5. Meaning of "carried on the person"

1.6. Requirement that you "knew about the presence" of the gun

2. Common legal defenses to Penal Code 25400 PC

2.1. You didn't know you were carrying the firearm

2.2. The gun was in the trunk or in a locked container in your vehicle

2.3. You have a license to carry a concealed weapon

2.4. The concealed weapon was within your residence or place of business

2.5. The weapon was obtained as the result of an illegal search and seizure

2.6. You carried the weapon in self-defense

2.7. Police misconduct

3. People exempt from prosecution
4. California penalties for carrying a concealed firearm

4.1.Misdemeanor carrying a concealed firearm

4.2. "Straight" felonies under Penal Code 25400  PC

4.3. "Wobbler" charges under Penal Code 25400 PC

4.4. Prior firearm convictions

5.California firearm offenses and immigration
6. Expunging your California Penal Code 25400 PC conviction
7. Your right to own/possess firearms after a Penal Code 25400 conviction
8. Are California's "carrying a concealed weapon" laws constitutional?

You may also find helpful information in our related articles on California Firearm Laws; Penal Code 417 PC Brandishing a Weapon; Penal Code 29800 PC; Felon with a Firearm, Penal Code 26150 PC; Consequences of a California Felony Conviction; Concealed Weapon Permits; Legal Defenses; California's Gun Free School Zone Act; Self-Defense Laws; Illegal Search and Seizure; Expungement Law; and Restoring Your Firearms Rights.

1. Legal definition of "carrying a concealed firearm"

You violate Penal Code 25400 PC, "carrying a concealed firearm," when you commit certain acts with:

  • a pistol,
  • a revolver, or
  • any other firearm capable of being concealed upon the person.

The prohibited acts are:

  1. Carrying the firearm concealed within any vehicle under your control or direction;
  2. Carrying the firearm concealed upon your person; OR
  3. Causing the firearm to be carried concealed within any vehicle in which you are an occupant.5

Effective January 1, 2012, California has no "open-carry" exception for unloaded firearms.  It is now illegal in California to carry an unloaded gun upon your person in a public place.6

1.1. Elements of the crime of carrying a concealed weapon

There are three requirements ("elements of the crime") under Penal Code 25400:

  1. you concealed a firearm on your person or in a vehicle,
  2. you knew about the presence of the concealed gun, and
  3. the firearm was substantially concealed.7

Let's take a look at some of these terms to gain a better understanding of their legal definitions.

1.2. Meaning of "concealed"

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Penal Code 25400 PC punishes carrying a concealed firearm.  If you are carrying a weapon in plain view, you aren't 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.8

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As long as the firearm is at least partially concealed, you could be liable for carrying a concealed firearm.9 This is so even if the gun is nevertheless identifiable.

Examples:  In one case, the court held that even though the officer could see a four or five inch long narrow bulge in the defendant's rear pants pocket...suspecting that the bulge was a gun...it was still deemed a concealed weapon.10
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Similarly, in another case, a cop noticed an outline of a handgun under the defendant's shirt.  Even though the officer could tell what the object was, it still qualified as a concealed weapon.11

Under Penal Code 25400(b), firearms carried openly in belt holsters are not concealed weapons.12 Nevertheless, as of January 1, 2012, it is illegal to openly carry a loaded or unloaded gun in California.13

1.3. "Pistol, revolver, or other firearm capable of being concealed upon the person"

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Pistol

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Revolver

A "pistol, revolver, or other firearm capable of being concealed on the person" is:

  1. any device,
  2. designed to be used as a weapon,
  3. from which is expelled a projectile by the force of any explosion, or other form of combustion, and
  4. that has a barrel either less than 16 inches in length, or 16 inches or more in length that is designed to be interchanged with a barrel less than 16 inches.14

These terms also include the frame or receiver of any such weapon.15 The frame is the basic unit of a handgun which serves as a mounting for the barrel and operating parts of the gun.  The receiver holds the mechanical parts of a gun and includes the trigger housing and bolt carrier group.16

1.4. Definition of "firearm"

Penal Code 16520(a) defines "firearm" as:

  1. a device,
  2. designed to be used as a weapon,
  3. from which is expelled through a barrel,
  4. a projectile by the force of an explosion or other form of combustion.17

It also includes any "rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes."18

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"Firearms" include (but are not limited to):

  • pistols,
  • revolvers,
  • handguns,
  • rifles (including short-barreled rifles),
  • shotguns (including short-barreled shotguns), and
  • tasers.19
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Taser

Pellet guns and BB guns, which rely on the force of air pressure and not combustion, do not qualify as firearms under the law.20

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BB gun with CO2 canisters and ball bearings

The intent behind California gun laws is to protect society from the potential harm that seeing a concealed weapon might elicit.  So prosecutors can charge you with carrying a concealed weapon even if the gun is inoperable.21

1.5. Meaning of "carried on the person"

This requirement simply means that you physically possess the concealed weapon.  It doesn't matter if the gun is actually on your person or in something that you are holding.

Thus you carry a concealed firearm on your person if a gun is in your pocket, or inside a purse, briefcase or anything else that you are holding.22

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1.6. Requirement that you "knew about the presence" of the gun

Most California gun laws, including this one, require that you know about a gun's presence.  This is to prevent people from being wrongly convicted of offenses they didn't intentionally commit.

Example:  Let's take the example from above.  Assume that you accidentally grab one of your co-worker's briefcases, unaware of its contents.  When airport security officers find a gun in it, you are not guilty of carrying a concealed firearm since you didn't know about the gun's presence.
2. Common legal defenses to
Penal Code 25400 PC

There are a variety of legal defenses to a Penal Code 25400 PC charge.  A skilled California criminal defense lawyer can help you figure out which apply.  Below are examples of some of the most common ones.

2.1. You didn't know you were carrying the firearm

"Knowledge" about the concealed gun's presence is required to make you liable for the crime.  Simply put, if you don't know or realize that you are carrying a gun, you aren't guilty.

It could certainly be the case that somebody else placed a firearm in your jacket, purse, briefcase or vehicle without you realizing it. In such situations, even if you are carrying a concealed weapon, you would not be liable for a crime.

2.2. The gun was in the trunk or a locked container in your vehicle

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You are not guilty of carrying a concealed weapon in a vehicle if:

  1. your pistol, revolver, or other firearm is in:

    • the trunk of the car, or
    • a locked container within the car (excluding the glove box);23

      AND

  2. you are otherwise legally entitled to own or possess a firearm.24

You are legally entitled to own or possess a firearm if you lawfully own it or you have the permission of the lawful owner.25

2.3 You have a license to carry a concealed weapon

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If you have a license or permit for carrying a concealed weapon under Penal Code 26150 PC, then carrying a gun generally does not violate the law.  In order to prevail on this legal defense, you bear the burden of proving that you have a valid license.26

2.4. The concealed weapon was within your residence or place of business

As long as you are otherwise entitled to own or possess a gun, you are free to carry a concealed firearm in:

  • your own home, or
  • in a business that you own (as opposed to a place where you merely work).27

This rule doesn't generally extend to people who live and/or work in their cars.  However, it does allow taxi-cab drivers to keep concealed weapons within their vehicles.28

2.5. The weapon was obtained as the result of an illegal search and seizure

Many weapons charges arise after an officer stops a suspect for some type of investigation.  Perhaps you were speeding.  Perhaps your car was illegally parked.  Or maybe you matched the description of someone who was just accused of a crime.  As the officer is speaking with you or "patting you down," he discovers the concealed weapon.

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Your Fourth Amendment constitutional rights protect you from unreasonable searches and seizures.29 If an officer searches you... or your car, your business, or your home... without a valid California search warrant or probable cause, that officer may violate your Fourth Amendment rights.

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Example:  A Los Angeles Police Department officer pulls you over for speeding on the 101 freeway.  You are cooperative, produce your license and registration in a timely fashion, and have no outstanding warrants.  The cop nonetheless chooses to search your car and finds an illegal weapon in the glove box.
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Given these facts, the officer probably lacks authority to search your car.  This is because before the police can legally conduct such a search, they must have:

  • probable cause to search (that is, a reasonable belief that you are engaged in criminal activity or pose a threat to officer safety),30 OR
  • a valid California search warrant authorizing them to search your person/property (the scope of which must be strictly adhered to), OR
  • your consent to conduct a search of your person/property.31

A weapon discovered and confiscated during an illegal search and seizure is inadmissible in court.32

If you can convince the prosecutor and/or judge that your gun was discovered during an illegal search, it is likely that the court will dismiss the charges.

2.6 You carried the weapon in self-defense

You may be absolved of criminal liability for carrying a concealed firearm under California's self-defense laws.  These apply if you reasonably believe that:

  1. your life is in "grave danger,"
  2. because of other people's specific threats or conduct which justified the basis for a court-ordered restraining order...33

As Newport Beach criminal defense attorney John Murray explains34 , "If we can prove to the court that you believed your life was in danger...even after securing a restraining order...and that carrying a concealed weapon on your person or in your car was necessary for your safety, we may be able to get your charges dismissed."

2.7. Police misconduct

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If an officer does any of the following, he/she is guilty of police misconduct:

  • plants a concealed weapon on your person or in your car;
  • lies in his/her police report and says that the gun was concealed, when in fact it was carried openly;
  • testifies falsly about the facts of your case;
  • coerces your confession, or
  • violates your civil rights in any other way.

If we suspect police misconduct such as this, we likely will run a Pitchess motion .  This will allow you see whether other people have made similar complaints about the officer in the past.  If we can establish that you are the victim of police misconduct , the prosecutor or judge may dismiss your charges, or a jury may find you not guilty at trial.

3. People exempt from prosecution
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Some people are exempt from prosecution under California's carrying a concealed firearm law.  These include (but are not limited to):

  • peace officers (whether active or honorably retired),35
  • licensed firearms dealers,36
  • members of the U.S. military,37
  • bank guards or messengers,38
  • members of target shooting clubs or organizations,39 and
  • licensed hunters/fishers who are using or transporting their weapons for these activities.40

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 attorney who understands the complex nature of California's gun laws.

4. California penalties for carrying a
concealed firearm
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4.1. Misdemeanor carrying a concealed firearm

Absent aggravating circumstances, carrying a concealed firearm in violation of California Penal Code 25400 PC is a misdemeanor.41 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.42

Alternatively, you could be granted misdemeanor (summary) probation.

If you are given misdemeanor probation, you will serve little or no jail time.

Factors that could weigh in favor of a fine and/or jail time include (but are not limited to):

  1. criminal history,
  2. a history of violence,
  3. a finding that you intended to use the concealed gun; and/or
  4. a failure to cooperate with the police during your arrest.

When there are aggravating factors, however, a violation of Penal Code 25400 becomes a either a "straight" , or a "wobbler" offense.

4.2. "Straight" felonies under Penal Code 25400 PC

Carrying a concealed weapon must be charged as a felony (a "straight" felony)43 if:

  • you have previously been convicted of a felony or any other California firearm offense,44
  • the firearm is stolen, and you knew, or had reasonable cause to believe, that it was stolen,45
  • you are an active participant in a criminal street gang,46
  • you are not in lawful possession of the firearm,47
  • you are prohibited from owning or possessing a firearm under Penal Code 29800 PC, California's felon with a firearm law,48 or
  • 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,
    • Lewd acts on a child,
    • Robbery,
    • Kidnapping, or
    • Carjacking.49

If convicted of felony carrying a concealed firearm, you face:

  1. Probation with up to one year of county jail, or
  2. 16 months, or two or three years in county jail;

and/or

a maximum $10,000 fine.50

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4.3. "Wobbler" charges under Penal Code 25400 PC

Penal Code 25400 PC becomes a "wobbler" when...in addition to carrying a concealed firearm on your person or in a car...

  • you were previously convicted of a misdemeanor crime against a person or property, or of a narcotics or dangerous drug crime,51

OR

  • both of the following:

    1. your firearm is loaded (or you have the ammunition in a location that is readily accessible to you), AND
    2. you are not listed as the registered owner of the loaded handgun with the Department of Justice.52

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.53

By definition, a "wobbler" in California is an offense that prosecutors can file as either a misdemeanor or a felony.54 The choice depends on:

  1. the circumstances of the offense, and
  2. your criminal history.

If your wobbler carrying a concealed firearm violation is charged as a misdemeanor you face:

  1. up to one (1) year in a county jail, and/or
  2. a maximum $1,000 fine.55

If charged as a felony, you can be punished by:

  1. Probation with up to one year of county jail, or
  2. 16 months, or two (2) or three (3) years in county, and/or
  3. a maximum $10,000 fine.56

4.4 Prior firearm convictions

If you are convicted of any Penal Code 25400 PC violation...and you have previously been convicted of any felony or any other California firearm offense ...you must serve a minimum three month county jail sentence.57

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And if you are convicted of any concealed firearm violation...and you have previously been convicted of:

you must serve between three (3) and six (6) months in a county jail.58

The only exception to the foregoing sentencing requirements is the unusual case in which the interests of justice would be best served by granting probation and suspending the minimum jail time.59

In addition to all of the above penalties, a conviction for unlawfully carrying a concealed handgun in violation of California Penal Code 25400 PC may result in the loss of your weapon.60

5. California firearm offenses and immigration
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If you are a legal immigrant or legal alien, a Penal Code 25400 PC conviction could additionally result in deportation.61 For more information about how California's firearm laws affect aliens, please visit our articles on California crimes that lead to deportation.

6. Expunging your California Penal Code 25400 PC conviction
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If you are granted probation for a violation of Penal Code 25400, you may expunge your California criminal record once you successfully complete the probationary period, or have it terminated early under Penal Code 1203.3 PC.62

Expungement "erases" a conviction for many purposes... including most employment disclosures.  It does not, however, permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 29800.63

Furthermore, the judge can deny you an expungement if you suffer a probation violation or fail to adhere to all the terms and conditions of probation.64

7. Your right to own/possess firearms after a Penal Code 25400 conviction

A misdemeanor conviction for carrying a concealed weapon won't by itself revoke your right to own or possess a firearm...

unless... you are adjudged a ward of the juvenile court based on a the misdemeanor conviction.  In that case, you will be prohibited from owning or possessing a firearm until you are 30 years old.65

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.66 The ban applies both to adults, and to minors who were convicted when tried as adults.67

If you are convicted of a felony as a wobbler, restoring your firearm rights is a two-step process:

  1. petition the court to have your felony reduced to a misdemeanor,68 then
  2. file a petition to have the charges dismissed.69

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 through one of two methods:

  1. If you still reside in California, by obtaining a California certificate of rehabilitation ... which automatically becomes an application for a pardon; or
  2. If you no longer reside in California, by applying for a direct pardon from the Governor.70
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Note, however, that even a Governor's pardon does not restore firearm rights to someone who has been convicted of a felony that involves the use of a dangerous weapon.71

A "dangerous weapon" under California law is any weapon, instrument, or object that is capable of being used to inflict great bodily injury or death.72 California law defines "great bodily injury" as a substantial or significant injury.73 Pistols, revolvers, or other firearms therefore qualify as dangerous weapons.

8. Are California's "carrying a concealed weapon" laws constitutional?

In early 2014, the federal 9th Circuit Court of Appeals issued a decision that suggests that Penal Code 25400 may be unconstitutional.

The court stated, in Peruta v. County of San Diego, that the right to carry firearms outside the home is protected by the Second Amendment to the U.S. Constitution.74

But in California, the only way you can carry a firearm outside your home is by obtaining a concealed weapon license or permit under Penal Code 26150 PC.To do so, you have to show "good cause."75 According to the 9th Circuit in Peruta, that requirement is unconstitutional.76

The California Attorney General's office--which naturally would like to see "carrying a concealed weapon" prosecutions continue--filed an attempted challenge to Peruta. Depending on where the challenge goes, the law in California on carrying concealed firearms could change significantly in the near future.

Call us for help...
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If you or loved one is charged with Penal Code 25400 pc carrying a concealed weapon and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of the crime of carrying a concealed weapon in Nevada.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.77

Legal References:

1 California Penal Code 25400 replaced former Penal Code sections 12025 and 12031 without substantive change effective January 1, 2012.

Penal Code 25400(a) PC provides:

A person is guilty of carrying a concealed firearm when

the person does any of the following:

(1) Carries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable

of being concealed upon the person.

(2) Carries concealed upon the person any pistol, revolver, or

other firearm capable of being concealed upon the person.

(3) Causes to be carried concealed within any vehicle in which the

person is an occupant any pistol, revolver, or other firearm capable

of being concealed upon the person.

2 California Penal Code 25850(a) -- A person is guilty of carrying a loaded firearm when theperson carries a loaded firearm on the person or in a vehicle whilein any public place or on any public street in an incorporated cityor in any public place or on any public street in a prohibited areaof unincorporated territory.

3 California Penal Code 26350 PC.

(a) (1) A person is guilty of openly carrying an unloaded

handgun when that person carries upon his or her person an exposed

and unloaded handgun outside a vehicle while in or on any of thefollowing:

(A) A public place or public street in an incorporated city orcity and county.

(B) A public street in a prohibited area of an unincorporated area

of a county or city and county.

(C) A public place in a prohibited area of a county or city andcounty.

(2) A person is guilty of openly carrying an unloaded handgun whenthat person carries an exposed and unloaded handgun inside or on avehicle, whether or not on his or her person, while in or on any ofthe following:

(A) A public place or public street in an incorporated city orcity and county.

(B) A public street in a prohibited area of an unincorporated areaof a county or city and county.

(C) A public place in a prohibited area of a county or city andcounty.

4 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

5 California Penal Code 24500(a), endnote 1, above.

6 California Penal Code 26350(a) --

(1) A person is guilty of openly carrying an unloaded

handgun when that person carries upon his or her person an exposedand unloaded handgun outside a vehicle while in or on any of thefollowing:

(A) A public place or public street in an incorporated city orcity and county.

(B) A public street in a prohibited area of an unincorporated areaof a county or city and county.

(C) A public place in a prohibited area of a county or city andcounty.

(2) A person is guilty of openly carrying an unloaded handgun whenthat person carries an exposed and unloaded handgun inside or on avehicle, whether or not on his or her person, while in or on any ofthe following:

(A) A public place or public street in an incorporated city orcity and county.

(B) A public street in a prohibited area of an unincorporated areaof a county or city and county.

(C) A public place in a prohibited area of a county or city andcounty.

7 There are a variety of jury instructions that are applicable to Penal Code 25400 PC, California's "carrying a concealed firearm" law.  These include CALJIC 2520 (Carrying Concealed Firearm on Person); 2521 (Carrying Concealed Firearm Within Vehicle); and 2522 (Carrying Concealed Firearm: Caused to Be Carried Within Vehicle). Each of these contains at least the following three elements: (1) that the defendant carried a concealed firearm, (2) that the defendant knew of the presence of the firearm, and (3) that the firearm was substantially concealed.

8 California Penal Code 26350(a), endnote 6, above.

9 People v. Hale (1974) 43 Cal.App.3d 353.  ([Under the WEST headnotes, number 2] "Only partial concealment of firearm is required for conviction of carrying a concealed firearm."   Continuing at 356, "The carrying of concealed firearms is prohibited as a means of preventing physical harm to persons other than the offender.' (People v. Jurado, 25 Cal.App.3d 1027, 1032, 102 Cal.Rptr. 498, 500.) In our opinion concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm, presents a threat to public order comparable to concealment of the entire firearm and falls within the prohibition of... [California's "carrying a concealed weapon on your person or in a vehicle" law].")

10 Facts based on People v. May (1973) 33 Cal.App.3d 888.

11 Facts based on People v. Tarkington (1969) 273 Cal.App.2d  466.

12 California Penal Code 25400(b) -- A firearm carried openly in a belt holster is not concealed within the meaning of this section.

13 California Penal Code 24850, endnote 2, and California Penal Code 26350(a), endnote 6.

14 Penal Code 16530 PC(a) -- As used in this part, the terms "firearm capable ofbeing concealed upon the person," "pistol," and "revolver" apply toand include any device designed to be used as a weapon, from which isexpelled a projectile by the force of any explosion, or other formof combustion, and that has a barrel less than 16 inches in length.These terms also include any device that has a barrel 16 inches ormore in length which is designed to be interchanged with a barrelless than 16 inches in length.

15 Penal Code 16520(b)PC.

16 See, e.g., Michael J. Simpson, About.com Guide -- Receiver.

17 Penal Code 16520(a) -- As used in this part, "firearm" means a device, designedto be used as a weapon, from which is expelled through a barrel, aprojectile by the force of an explosion or other form of combustion.

18 Penal Code 16520(c) -- ..."firearm" also includes arocket, rocket propelled projectile launcher, or similar devicecontaining an explosive or incendiary material, whether or not thedevice is designed for emergency or distress signaling purposes...

19 People v. Norton (1978) 80 Cal.App.3d Supp. 14, 25.  ("The word, ‘firearm,' includes a pistol, revolver or rifle, or any other device designed to be used as a weapon from which a projectile may be expelled by the force of any explosion or other form of combustion.")

See also People v. Heffner (1977) 70 Cal.App.3d 643.  ("The hand-held Taser weapon (whose projectiles are barbed contactors that, fired through twin barrels less than 12 inches in length, remain connected by wire to batteries in the expendable cassettes with which the weapon is loaded, thereby incapacitating a human target by pulsed, low-amperage current) is a "firearm capable of being concealed upon the person.")

20 Penal Code 16250 PC.  As used in this part, "BB device" means any instrument that expels a projectile, such as a BB or a pellet, not exceeding 6mm caliber, through the force of air pressure, gas pressure, or spring action, or any spot marker gun.

21 People v. Marroquin (1989) 210 Cal.App.3d 77, 82.  ("...we conclude that a firearm, the generic term used to describe an object which may silence, maim, strike or destroy that which moves, breathes or exists, need not be operable to convict under ... California's "carrying a concealed weapon on your person or in a vehicle" law.")

22 People v. Dunn (1976) 61 Cal.App.3d Supp. 12, 14.  ("We hold that the Legislature intended to proscribe the carrying of concealed weapons by both men and women and that a handgun concealed in a suitcase and carried by appellant is sufficiently ‘upon his person' to constitute a violation of ... [California's "carrying a concealed weapon on your person or in a vehicle" law]...").

23 Penal Code 25610.  (a) Section 25400 shall not be construed to prohibit anycitizen of the United States over the age of 18 years who resides oris temporarily within this state, and who is not prohibited by stateor federal law from possessing, receiving, owning, or purchasing afirearm, from transporting or carrying any pistol, revolver, or otherfirearm capable of being concealed upon the person, provided thatthe following applies to the firearm:   (1) The firearm is within a motor vehicle and it is locked in thevehicle's trunk or in a locked container in the vehicle.   (2) The firearm is carried by the person directly to or from anymotor vehicle for any lawful purpose and, while carrying the firearm,the firearm is contained within a locked container.   (b) The provisions of this section do not prohibit or limit theotherwise lawful carrying or transportation of any pistol, revolver,or other firearm capable of being concealed upon the person inaccordance with the provisions listed in Section 16580.

24 Penal Code 16750(a) -- As used in Section 25400, "lawful possession of thefirearm" means that the person who has possession or custody of thefirearm either lawfully owns the firearm or has the permission of thelawful owner or a person who otherwise has apparent authority topossess or have custody of the firearm. A person who takes a firearmwithout the permission of the lawful owner or without the permissionof a person who has lawful custody of the firearm does not havelawful possession of the firearm.

25 Same.

26 People v. Superior Court (1969) 2 Cal.App.3d 197, 202.  ("...the burden of proof is upon the carrier of ... [a concealed weapon] to show his license to carry it. (People v. Williams, 184 Cal.App.2d 673, 675, 7 Cal.Rptr. 604.)

27 California Penal Code 25605.

(a) Section 25400 and Chapter 6 (commencing with Section 26350) of Division 5 shall not apply to or affect any citizen of the

United States or legal resident over the age of 18 years who residesor is temporarily within this state, and who is not within theexcepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Section 29900) of Division 9 ofthis title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, who carries, either openly or concealed, anywhere within thecitizen's or legal resident's place of residence, place of business,or on private property owned or lawfully possessed by the citizen orlegal resident, any handgun.

(b) No permit or license to purchase, own, possess, keep, orcarry, either openly or concealed, shall be required of any citizenof the United States or legal resident over the age of 18 years whoresides or is temporarily within this state, and who is not withinthe excepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Section 29900) of Division 9 ofthis title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, to purchase, own, possess, keep, or carry, either openly orconcealed, a handgun within the citizen's or legal resident's placeof residence, place of business, or on private property owned orlawfully possessed by the citizen or legal resident.

(c) Nothing in this section shall be construed as affecting the application of Sections 25850 to 26055, inclusive.

People v. Wooten (1985) 168 Cal.App.3d 168, 173.  ("The clear legislative purpose of [former Penal Code] section 12025 is to prohibit the carrying around of concealed weapons. Section 12026 provides an exception for possession in one's residence or place of business. The natural meaning of the term "place of business" is a fixed location, simply because almost all businesses are conducted in some office, store or other building. When a business is mobile, one generally says that the business is not conducted in any particular place, but in an area. Giving Penal Code section 12026 the broad meaning advocated by defendant would render it meaningless. Salesmen, truck drivers, delivery persons-in short, anyone whose business puts them in transit-could use section 12026 to justify an exemption from [Penal Code] section 12025 [California's "carrying a concealed weapon on your person or in a vehicle" law].")

See also People v. Marotta 128 Cal.App.3d Supp. 1,4.  ("The cause was submitted on a written stipulation that defendant possessed a loaded .25 caliber automatic pistol on the floorboard of his taxicab, which cab he was operating under a lease he secured that evening from Speedy Cab Company. Defendant carried the weapon for protection while operating the taxicab, and had no license to carry it. The court found defendant guilty on all counts, and imposed a probationary sentence. Defendant appeals the conviction, asserting the same issue he presented to the trial court: that he was entitled to keep the pistol in his "place of business"-his taxicab-under the provisions of Penal Code section 25850, subdivision (h). We agree with defendant's contention and reverse the conviction.")

29 The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

30 See, e.g., Terry v. Ohio (1968) 392 U.S. 1, 3 ("Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.").

31 Schneckloth v. Bustamonte (1973) 412 U.S. 218, 93 S.Ct. 2041.  ("It is... well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.  Davis v. United States, 328 U.S. 582, 593—594, 66 S.Ct. 1256, 1261—1262, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477."),

32 Mapp v. Ohio (1961) 367 U.S. 643 (holding that evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court.).

33 California Penal Code 25600.

(a) A violation of Section 25400 is justifiable when a person who possesses a firearm reasonably believes that person is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person who has been found to pose a threat to the life or safety of the person who possesses the firearm. This section may not apply when the circumstances involve a mutual restraining order issued pursuant to Division 10 (commencing with Section 6200) of the Family Code absent a factual finding of a specific threat to the person's life or safety. It is not the intent of the Legislature to limit, restrict,or narrow the application of current statutory or judicial authority to apply this or other justifications to a defendant charged with violating Section 25400 or committing another similar offense.

(b) Upon trial for violating Section 25400, the trier of fact shall determine whether the defendant was acting out of a reasonable belief that the defendant was in grave danger.

34 Orange County criminal defense attorney John Murray represents clients accused of violating California's gun laws throughout Orange County, including Fullerton, Anaheim, Santa Ana, Irvine and Westminster.

35 California Penal Code 25450 PC.

36 California Penal Code 25615 PC.

37 California Penal Code 25620 PC.

38 California Penal Code 25630 PC.

39 California Penal Code 25635 PC.

40 California Penal Code 25640 PC.

41 California Penal Code 25400(c)(7) --  Carrying a concealed firearm in violation of this section is punishable as follows: ...(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

42 Same.

43 California Penal Code 17 PC provides, in relevant part: A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

44 California Penal Code 25400(c)(1) --  Carrying a concealed firearm in violation of this section is punishable as follows: ... If the person previously has been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580, as a felony.

45 California Penal Code 25400(c)(2) -- Carrying a concealed firearm in violation of this section is punishable as follows:...If the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.

46 California Penal Code 25400(c)(3) Carrying a concealed firearm in violation of this section is punishable as follows:...If the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.

47 California Penal Code 25400(c)(4) Carrying a concealed firearm in violation of this section is punishable as follows: ...If the person is not in lawful possession of the firearm...

48 California Penal Code 25400(c)(4) -- Carrying a concealed firearm in violation of this section is punishable as follows: ...(4) If the person is not in lawful possession of the firearm or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.

49 See California Penal Code 29900(a)(1) -- Notwithstanding subdivision (a) of Section 29800, any person who has been previously convicted of any of the offenses listed in Section 29905 and who owns or has in possession or under custody or control any firearm is guilty of a felony.

See also California Penal Code 29905(a) -- As used in this chapter, a violent offense includes any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape.

(4) Sodomy by force, violence, duress, menace, or threat of grea bodily harm.

(5) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.

(6) Lewd acts on a child under the age of 14 years.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, that has been charged and proven, or any felony in which the defendant uses a firearm which use has been charged and proven.

(9) Attempted murder.

(10) Assault with intent to commit rape or robbery.

(11) Assault with a deadly weapon or instrument on a peace officer.

(12) Assault by a life prisoner on a noninmate.

(13) Assault with a deadly weapon by an inmate.

(14) Arson.

(15) Exploding a destructive device or any explosive with intent to injure.

(16) Exploding a destructive device or any explosive causing great bodily injury.

(17) Exploding a destructive device or any explosive with intent to murder.

(18) Robbery.

(19) Kidnapping.

(20) Taking of a hostage by an inmate of a state prison.

(21) Attempt to commit a felony punishable by death or imprisonment in the state prison for life.

(22) Any felony in which the defendant personally used a dangerous or deadly weapon.

(23) Escape from a state prison by use of force or violence.

(24) Assault with a deadly weapon or force likely to produce great bodily injury.

(25) Any felony violation of Section 186.22.

(26) Any offense enumerated in subdivision (a), (b), or (d) of Section 23515.

(27) Carjacking.

(28) Any offense enumerated in subdivision (c) of Section 23515 if the person has two or more convictions for violating paragraph (2)of subdivision (a) of Section 417.

(b) As used in this chapter, a violent offense also includes any attempt to commit a crime listed in subdivision (a) other than an assault.

50 California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170. (b) Every offense which is prescribed by any law of the state to be a felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

51 California Penal Code 25400(c)(5) --  Carrying a concealed firearm in violation of this section is punishable as follows: (c) Carrying a concealed firearm in violation of this section is punishable as follows:   ...(5) If the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

52 California Penal Code 25400(c)(6) -- Carrying a concealed firearm in violation of this section is punishable as follows: ...If both of the following conditions are met, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment:

(A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person.

(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.

53 California Penal Code 25400(f) A peace officer may arrest a person for a violation of paragraph (6) of subdivision (c) if the peace officer has probable cause to believe that the person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, and one or more of the conditions in subparagraph (A) of paragraph (6) of subdivision(c) is met.

54 California Penal Code 17(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170,or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

55 California Penal Code 25400 (c)(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

56 California Penal Code 18 PC, endnote 50.

57 California Penal Code 25400(d)(2)-- Every person convicted under this section who has previously been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580, if probation is granted, or if the execution or imposition of sentence is suspended, it shall be a condition thereof that the person be imprisoned in a county jail for not less than three months.

58 California Penal Code 25400(d) (1) -- Every person convicted under this section who previously has been convicted of a misdemeanor offense enumerated in Section 23515 shall be punished by imprisonment in a county jail for at least three months and not exceeding six months, or, if granted probation,or if the execution or imposition of sentence is suspended, it shall be a condition thereof that the person be imprisoned in a county jail for at least three months.

See also California Penal Code 23515 -- As used in the provisions listed in Section 16580, an offense that involves the violent use of a firearm includes any of  the following:

(a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245.

(b) A violation of Section 246.

(c) A violation of paragraph (2) of subdivision (a) of Section 417.

(d) A violation of subdivision (c) of Section 417.

59 California Penal Code 25400(e)-- The court shall apply the three-month minimum sentence as specified in subdivision (d), except in unusual cases where the interests of justice would best be served by granting probation or suspending the imposition or execution of sentence without the minimum imprisonment required in subdivision (d) or by granting probation or suspending the imposition or execution of sentence with conditions other than those set forth in subdivision (d), in which case, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

60 California Penal Code 25700.

(a) The unlawful carrying of any handgun in violation of Section 25400 is a nuisance and is subject to Sections 18000 and18005.

(b) This section does not apply to any of the following:

(1) Any firearm in the possession of the Department of Fish and Game.

(2) Any firearm that was used in the violation of any provision of the Fish and Game Code or any regulation adopted pursuant thereto.

(3) Any firearm that is forfeited pursuant to Section 5008.6 of the Public Resources Code.

California Penal Code 18000.  (a) Any weapon described in Section 19190, 21390, 21590, or 25700, or, upon conviction of the defendant or upon a juvenile court finding that an offense that would be a misdemeanor or felony if
committed by an adult was committed or attempted by the juvenile with the use of a firearm, any weapon described in Section 29300, shall be surrendered to one of the following:

(1) The sheriff of a county.

(2) The chief of police or other head of a municipal policedepartment of any city or city and county.

(3) The chief of police of any campus of the University ofCalifornia or the California State University.

(4) The Commissioner of the California Highway Patrol.

(b) For purposes of this section, the Commissioner of the

California Highway Patrol shall receive only weapons that were confiscated by a member of the California Highway Patrol.

(c) A finding that the defendant was guilty of the offense but was insane at the time the offense was committed is a conviction for the purposes of this section.

61 8 U.S. Code Section 1227(a)(2)(C) -- Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921 (a) of title 18) in violation of any law is deportable.

62 California Penal Code 1203.4 PC [felony] and California Penal Code 1203.4a PC [misdemeanor].  These sections outline the procedures by which a defendant can expunge a California Penal Code 25400 PC conviction from his criminal record.

63 See our article on Consequences of a California Felony Conviction.

64 California Penal Code 1203.4 PC and 1203.4a PC.

65 California Penal Code 29820 PC –

(a) This section applies to any person who satisfies both of the following requirements:

(1) The person is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code,an offense described in subdivision (b) of Section 1203.073, any offense enumerated in Section 29805, or any offense described in Section 25850, subdivision (a) of Section 25400, or subdivision (a)of Section 26100.

(2) The person is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code,an offense described in subdivision (b) of Section 1203.073, any offense enumerated in Section 29805, or any offense described in Section 25850, subdivision (a) of Section 25400, or subdivision (a)of Section 26100.

(b) Any person described in subdivision (a) shall not own, or have in possession or under custody or control, any firearm until the age of 30 years.

66 California Penal Code 29800(a)(1) -- Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.

67 Penal Code 29800(b) -- Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.

68 California Penal Code 17(b) PC – When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

69 Penal Code 1203.4 PC (for people done with probation and, if applicable, county jail time), or Penal Code 1203.4a (for people never given any probation but sentenced to county jail.

70 See State of California Office of the Governor,  How to Apply for a Pardon.

71 California Penal Code 4852.17 PC -- ("Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the [California governor's] pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored [by a governor's pardon], and Sections 12001 and 29800 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.")

See also California Penal Code 4854 PC.  In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.

72 CALJIC 12.42 Deadly Weapon—Defined – A deadly or dangerous weapon is any weapon, instrument or object that is cable of being used to inflict death or great bodily injury.

See also People v. James (1978) 88 Cal.App.3d 150, 160.  ([Refering to CALJIC 17.16] "This definition accords with prior case law defining deadly or dangerous weapon (see People v. Graham (1969) 71 Cal.2d 303, 327-328, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Liner (1959) 168 Cal.App.2d 411, 414, 335 P.2d 964), and we believe it appropriately defines the terms...")

73 California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony.  ("(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")

74 Peruta v. Cty. of San Diego (Feb. 13 2014) No. 10-56971, slip op. at 55. ("[T]he Second Amendment does require that the states permit some form of carry for self-defense outside the home.")

75 Penal Code 26150 PC -- Application for license to carry concealed weapon; county sheriff responsibilities. ("(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following:(1) The applicant is of good moral character.(2) Good cause exists for issuance of the license.(3) The applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business.(4) The applicant has completed a course of training as described in Section 26165.")

76 Peruta v. Cty. of San Diego, endnote 74, above, slip op. at 69. (" . . . San Diego County's "good cause" permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.")

77 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada's firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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