Carrying a Loaded Firearm in a Public Place or in a Vehicle
California Penal Code 25850 PC

California Penal Code 25850 PC punishes carrying a loaded firearm in a vehicle or public place.1

This is a separate and distinct offense from carrying a concealed firearm, which is prohibited under Penal Code 25400 PC.

Despite the fact that carrying a loaded weapon sounds like a very straight-forward offense, it's not.  The code is filled with legal jargon, technicalities, and exceptions that make this seemingly obvious offense rather complex.

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To help understand exactly what conduct is (and is not) prohibited by this California firearms law, our California criminal defense attorneys2 will address the following:

1. Legal definition of “carrying a loaded firearm in a public place”

1.1. “Loaded”

1.2. “Firearm”

1.3. “Public place”

1.4. “Prohibited area”

2. Defenses to Penal Code 25850 PC

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

2.2. The firearm wasn't loaded

2.3. You didn't carry the firearm in public

2.4. Police misconduct

2.5. You were carrying a gun in self-defense

3. People exempt from prosecution under Penal Code 25850 PC

3.1. Penal Code 25900 and 26020 PC -- Peace officers and federal agents

3.2. Penal Code 26000 PC – members of the military

3.3. Penal Code 26025 PC -- POST certification

3.4. Penal Code 26005 and 26040 PC – recreational shooters

3.5. Penal Code 26010 – People with concealed carry permits

3.6. Penal Code 26015 and 26030 PC – Armored vehicle guards, security guards and private investigators

3.7. Penal Code 26035 -- Business owners and private
property owners

4. Penalties, punishment, and sentencing for carrying a loaded firearm
in public

4.1. Misdemeanor violations of Penal Code 25850 PC

4.2. “Wobbler” provisions of Penal Code 25850 PC

4.3. Straight felonies under Penal Code 25850 PC

4.4. Violation of Penal Code 25850 after prior
firearm convictions

5. Collateral consequences of a Penal Code 25850 conviction

5.1. California firearm offenses and immigration

5.2. Expunging your California Penal Code 25850 PC conviction

5.3. Firearms eligibility

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Firearm Laws; Penal Code 29800 PC, Felon with a Firearm; Penal Code 25400 PC, Carrying a Concealed Firearm; Penal Code 417 PC Brandishing a Weapon; California Legal Defenses; Collateral Consequences of a California Felony Conviction; California's Self-Defense Laws; California Expungement Law; and Restoring Your Firearms Rights.

1. Legal definition of “carrying a loaded firearm in a public place”

Penal Code 25850(a) reads as follows:

“A person is guilty of carrying a loaded firearm when the person carries a loaded firearm 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.”3

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

1.1. “Loaded”

A firearm is “loaded” when there is:

  1. an unexpended cartridge or shell,
  2. consisting of a case that holds a charge of powder and a bullet or shot,
  3. in, or attached in any manner to, the firearm…including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm.4
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A muzzle-loader firearm is considered loaded when:

  1. it is capped or primed, and
  2. has a powder charge and ball or shot in the barrel or cylinder.5
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And although it may seem illogical, prosecutors can convict you of carrying a loaded firearm in a vehicle or public place even if the gun is inoperable.6

In addition, if you carry a gun in public, a peace officer has the right to examine it to determine if it is loaded.  Refusal constitutes probable cause for arrest for violation of Penal Code 25850.7

1.2. “Firearm”

A “firearm” under California's gun laws means:

  1. a device,
  2. designed to be used as a weapon,
  3. from which a projectile,
  4. is expelled through a barrel,
  5. by the force of an explosion or other form of combustion.8

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.”9

Examples: Examples of “firearms”…which are synonymously referred to as "guns"…include (but are not limited to):
  • pistols,
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  • revolvers,
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  • rifles,
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  • shotguns,
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    and


  • tasers.10
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Excluded from the definition of “firearms” under Penal Code 25850 PC are:
  • pellet guns,
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    and


  • BB guns.11
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1.3. “Public place”

A “public place” is any place which is open to common and general use and is readily accessible by anyone wishing to go there.12

1.4. “Prohibited area”

A “prohibited area” refers to “any place where it is unlawful to discharge a weapon.”13

2. Defenses to Penal Code 25850 PC

There are a variety of legal defenses to this charge that a good California criminal defense attorney may present on your behalf.  Below are examples of some of the most common.

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

If you don't know you are carrying a firearm, you aren't guilty of violating Penal Code 25850 PC.  This is because carrying a loaded firearm in public necessarily requires that you know the firearm is present.14

This defense works best when the gun is not actually on your person.  For instance, it could be in your car or in a bag that you are carrying.  If a gun is tucked inside your waistband, it's hard to argue you didn't know it was there.

Img-concealed-weapon-coat
Example: When security officers check your backpack at a Lakers game, they find a loaded handgun at the bottom.  You accidentally grabbed your roommate's bag instead of yours and had no idea the gun was inside.
Because you weren't aware of the gun's presence, you should be acquitted of this charge.

2.2. The firearm wasn't loaded

The offense is carrying a loaded firearm in public.  It therefore stands to reason that if the firearm wasn't loaded, you have not committed this offense.  However, you may be guilty of violating California Penal Code Section 26350(a), carrying an unloaded firearm in public.15

Example: Let's say you are carrying a shotgun.  The shell or cartridge is in a storage compartment located in a separate area of the gun.  Because the ammunition hasn't been placed in a “firing” position, you aren't carrying a loaded firearm.16

Claiming that you didn't know the firearm was loaded will not serve as a legal defense to this crime.17 However, if you can prove more than sheer ignorance…that is, that you had a legitimate, reasonable reason to believe that the gun, in fact, was not loaded…you may be able to prevail based on a “mistake of fact” defense.

Example: You always carry your unloaded 22 in your glove compartment. Unbeknownst to you, your brother had loaded the gun without your permission. You get pulled over and the cops recover the loaded pistol.  Nevertheless, you had a legitimate belief it was not loaded.
Again, however, you may be guilty of violating California Penal Code Section 26350(a), carrying an unloaded firearm in public.

2.3. You didn't carry the firearm in public

Penal Code 25850 PC applies when you are:

  1. in any public place or on any public street in an incorporated city or,
  2. in any public place or on any public street in a prohibited area of any unincorporated territory.18

Prohibited areas include government offices, schools, and post offices.

If you weren't arrested in a public place or street, you should be acquitted of the charge.  You can't legally be convicted unless the prosecutor independently proves each “element” of the crime.

Example: Officers approach you while you are parked in your car on a street.  They see ammunition on the floor and ask whether you have any weapons in the car.  You tell them that you have a shotgun in the backseat and they arrest you for violating Penal Code 25850 PC.
At your trial, your California criminal defense lawyer asks the officer if the street you were parked on was in an incorporated city.  The officer replies that he doesn't know.  Your attorney then asks the officer if there are any county ordinances that prohibit discharging a firearm in that area.  Again, the officer replies that he doesn't know.
Given these facts, the officer (as part of the prosecution team) hasn't established a necessary element of the crime.   He can't prove that he arrested you on a public street in an incorporated city or in a prohibited area of an unincorporated territory.  As a result, you should be acquitted of this charge.19

2.4. Police misconduct

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Unfortunately, police officers, like anyone else, are often driven by unethical motives that compel them to do unjust acts.  Some of these acts might include:

  • “planting” or “fabricating” evidence,
  • creating a false report alleging you carried a gun on your person (turning in someone else's gun at the station),
  • violating your Fourth Amendment right against unreasonable searches,20
  • coercing your confession.

And despite how reprehensible police misconduct is, it's not uncommon.

As Rancho Cucamonga criminal defense attorney John Murray explains:21

“Cops are just as capable as anyone to succumbing to anger, revenge, humiliation, or even a power trip to get control over another person.  With our team's former law enforcement experience, we know the best ways to investigate this outrageous conduct and how to convince the judge/jury that it took place.”

2.5. You were carrying a gun in self-defense

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California's self-defense law… specifically addressed under Penal Code 26045 PC… allows you to carry a gun under two circumstances:

1. under otherwise lawful circumstances where you reasonably believe that:

  • any person… or the property of any person…
  • is in immediate, grave danger, and
  • the carrying of the weapon is necessary for the preservation  of that person or property; or

2. you reasonably believe

  • that you are 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 your life or safety.22

Whether your belief of grave danger is reasonable is an objective standard.  A judge and/or jury will decide how a reasonable person would have acted in your situation.23

3. People exempt from prosecution under
Penal Code 25850 PC

Certain people are exempt from the prohibitions of California Penal Code 25850 PC.

If you are fall into one of the below categories, you have not unlawfully carried a loaded firearm in public.

3.1. Penal Code 25900 and 26020 PC -- Peace officers and federal agents

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California Penal Code 25900 PC states that you may carry a loaded firearm in a public place if you are:

  1. A California peace officer, whether active or honorably retired,
  2. A full-time paid peace officer of another state or the federal government who is carrying out official duties while in California, or
  3. Any person summoned by any of these officers to assist in making arrests or preserving the peace while the person is actually engaged in assisting that officer.24

You may carry a loaded firearm under California Penal Code 26020 PC if:

  1. you are an honorably retired federal officer or agent of any federal law enforcement agency, and
  2. you have the approval of the sheriff of the county in which you reside.25

Federal law enforcement agencies include (but are not limited to):

3.2. Penal Code 26000 PC – members of the military

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California Penal Code 26000 states that 25850 does not apply to members of the military.

The exemption applies to members of the forces of California or of the United States engaged in the performance of their duties.27

3.3. Penal Code 26025 PC -- POST certification

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California Penal Code 26025 PC exempts specific individuals who have completed a “regular course in firearms training approved by the Commission on Peace Officer Standards and Training”.

Examples of individuals included in this group are:

  • animal control police or zookeepers, and
  • harbor patrol police officers.28

3.4. Penal Code 26005 and 26040 PC – recreational shooters

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California Penal Code 26005 allows you to carry a loaded gun:

  • if you are using a target range for the purpose of practice shooting with a firearm, or
  • while hunting on the premises of a shooting club of which you are a member.29

Additionally, California Penal Code 26040 permits people to carry a loaded firearm while engaged in hunting.  This exemption is subject to hunting at that place and time not being prohibited by the city council.30

You must, however, carry your gun to and from these places in a locked container.31

3.5. Penal Code 26010 – People with concealed carry permits

People who have a California permit to carry a concealed firearm are exempt from the prohibition against carrying a loaded gun.32

3.6. Penal Code 26015 and 26030 PC – Armored vehicle guards, security guards and private investigators

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California Penal Code sections 26015 and 26030 PC allow other specified individuals to carry a gun as long as certain conditions are met.  These individuals include:

  1. armored vehicle guards,33
  2. security guards,34 and
  3. private investigators.35

3.7. Penal Code 26035 -- Business owners and private property owners

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California Penal Code 26035 PC states that the crime of carrying a loaded firearm in a public place doesn't apply to:

  1. people who are engaged in a lawful business who have a loaded firearm in that place of business, or
  2. people in lawful possession of private property who have a loaded firearm on that property.36

But notice that this exclusion applies to having a loaded firearm.  California courts have held that “having” a loaded firearm is not the same as “carrying” a loaded firearm.  “Having” is synonymous with possession; “carrying” involves a physical act.37

So while you may be allowed to have a loaded gun in your place of business or in your home, absent another lawful exception or the need for self-defense, you are not allowed to carry it, unless you have an immediate need for self-defense.38

And even all of the above subdivisions have caveats and exclusions…which is why it is important to consult with a criminal defense attorney who understands the complex nature of California's firearm laws.

4. Penalties, punishment, and sentencing for carrying a loaded firearm in public

4.1. Misdemeanor violations of Penal Code 25850 PC

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Absent aggravating circumstances, carrying a loaded firearm in a vehicle or on your person is a misdemeanor. If convicted of this offense, you face:

  1. informal (otherwise known as “summary”) probation,
  2. up to one (1) year in a county jail, and/or
  3. a maximum $1,000 fine.39

4.2. “Wobbler” provisions of Penal Code 25850 PC

When there are aggravating factors, those circumstances elevate a 25850 PC violation to a “wobbler” or a “straight” felony.  A “wobbler” is an offense that prosecutors can file as either a misdemeanor or a felony, depending on:

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

A Penal Code 25850 violation becomes a wobbler when…in addition to carrying a loaded firearm in a public place or in a car…you:

  1. were previously convicted of a misdemeanor crime against a person or property, or of a narcotics or dangerous California drug crime law,40 or
  2. are not listed as the registered owner of the loaded handgun with the Department of Justice.41

If you are convicted of carrying a firearm in a public place or in a vehicle as a misdemeanor under one of these wobbler subdivisions, you face the same misdemeanor penalties listed above.

If you are convicted of this offense as a felony, you face the same potential fine and 16 months, or two (2) or three (3) years in the California State Prison.

4.3. Straight felonies under Penal Code 25850 PC

There are four remaining sentencing schemes that are outlined in Penal Code 25850 PC.  All of these are straight felonies (meaning they cannot be reduced to misdemeanors).

If you are convicted of carrying a loaded firearm on your person or in your car…and any of the certain conditions apply…you face:

  1. up to one year county jail or 16 months, or two (2) or three (3) years in the state prison, and/or
  2. a maximum $10,000 fine.
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These conditions include:

  • previously being convicted of a felony or any other offense under California gun laws,42
  • situations in which the loaded firearm is stolen and you know or have reasonable cause to believe that the gun is stolen,43
  • unlawfully possessing the firearm or otherwise being prohibited from owning or possessing a firearm,44 and
  • being an active participant in a criminal street gang.45
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Note that you may be found guilty of active participation in a gang even if your carrying a loaded firearm isn't connected to your involvement with the gang.46

And keep in mind that just because prosecutors charge you as a felony doesn't mean that the jury will convict you of the felony offense.  If the jury believes that you carried a loaded gun in public or in your car…but doesn't believe that you fall within one of the categories that elevates the offense to a felony…it could alternatively convict you of only a misdemeanor.47

4.4. Violation of Penal Code 25850 after prior firearm convictions

If you are convicted of any Penal Code 25850 PC violation…and have previously been convicted of:

you must serve a minimum three (3) month county jail sentence.48

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5. Collateral consequences of a Penal Code 25850 conviction

5.1. California firearm offenses and immigration

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If you are a legal immigrant or legal alien, a Penal Code 25850 PC conviction could additionally result in deportation.49 For more information about how California's firearm laws affect aliens, please visit our article on California crimes that lead to deportation.

5.2. Expunging your California Penal Code 25850 PC conviction

If you are granted probation in a misdemeanor or felony Penal Code 25850 PC case, you may expunge your California criminal record once you successfully complete the probationary period.  However, 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.50

And if you are charged with carrying a loaded firearm in public as a felony, the court may be willing to reduce the wobbler from a felony to a misdemeanor.51 The court may also grant an early termination of probation if you comply with all the terms and conditions of probation for the first year or two.52

5.3. Firearms eligibility

A misdemeanor conviction for carrying a loaded firearm in public won't by itself revoke your right to own or possess a firearm.  That said, if you are adjudged a ward of the juvenile court based on a Penal Code 25850 PC misdemeanor conviction, you will be prohibited from owning or possessing a firearm until you are 30 years old.53

But if you get convicted as a felony, you will be prohibited from purchasing, receiving, owning, or possessing a firearm for life.54 For a more detailed discussion, visit our page on California's “Felon with a Firearm” law, Penal Code 29800 PC.

If you are convicted of a felony under one of the “wobbler” subdivisions of Penal Code 25850 PC…and you successfully have the felony reduced to a misdemeanor…your gun rights will be restored.  Absent that, there are very few avenues of firearm rights restoration.

Typically, a certificate of rehabilitation and/or a governor's pardon would restore your California gun rights.  But even those remedies don't apply to offenses that involve the use of a dangerous weapon.55

California law defines “dangerous weapon” as any weapon, instrument, or object that is capable of being used to inflict great bodily injury or death.56 A loaded firearm therefore qualifies as a dangerous weapon.

Call us for help…
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If you or loved one is charged with Penal Code 25850 PC carrying a loaded firearm 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 violating Nevada's firearm laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.57


Legal References:

1 California Penal Code 25850 PC replaced former Penal Code 12031 without substantive changed effective January 1, 2012.

California Penal Code 25850(a) provides: A person is guilty of carrying a loaded firearm when the person carries a loaded firearm 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.

2 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.

3 California Penal Code 25850 PC -- Carrying a loaded firearm in public, subdivision “a”, endnote 1, above.

4 California Penal Code 16840(b)(1) -- As used in Chapter 2 (commencing with Section 25100) of Division 4 of Title 4, in subparagraph (A) of paragraph (6) of subdivision (c) of Section 25400, and in Sections 25850 to 26055, inclusive, (1) A firearm shall be deemed to be "loaded" when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm.

See also People v. Clark (1996) 45 Cal. App. 4th 1147 (“[T]he Legislature's use of the phrase "attached in any manner" to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or "loaded" for firing by some unconventional method. The phrase does not demonstrate a clear Legislative intent to deem a firearm loaded no matter how a shell is attached to a firearm; in particular, it does not indicate a clear intent to deem a gun "loaded" when the ammunition, as here, is in a storage compartment which is not equivalent to either a magazine or clip and from which the ammunition cannot be fired.”).

5 California Penal Code 16840(b)(2) -- Notwithstanding paragraph (1), a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

6 People v. Taylor (1984) 151 Cal.App.3d 432, 437.  (“The obvious intent of the legislature in each instance is to proscribe aspects of firearm possession to protect society. As has been pointed out, it does not matter the firearm does not work when it is seen by a victim of crime, an innocent bystander or a member of law enforcement. The possession of a firearm under the enumerated circumstances constitutes a threat…A firearm need not be operable to convict under [California] Penal Code section 12031, subdivision (a).

7 California Penal Code 25850 (b) -- In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

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

9California Penal Code 16520(c) -- …"firearm" also includes a rocket, rocket propelled projectile launcher, or similar device containing an explosive or incendiary material, whether or not the device is designed for emergency or distress signaling purposes…

See also 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.”)

10 See also People v. Heffner (1977) 70 Cal.App.3d 643, 652.  (“To summarize, we conclude that a Taser is a firearm and can be a loaded firearm within [former] section 12031 [California's “carrying a loaded firearm in public” law]. In other words, the question presented for determination, whether section 12031, subdivision (a) applies to the weapon known as a ‘Taser' is answered in the affirmative.”)

11 California Penal Code 16250 -- 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.

Note:  Since these weapons rely on the force of air pressure and not combustion, they do not qualify as firearms.

12 California Jury Instructions – Criminal – CALCJI 16.431 -- The term “public place” means any place which is open to common or general use, participation and enjoyment by members of the public. [A person may be guilty of a crime of if [he] [she] is in a public place in the condition described even if [he] [she] is not visible to public view.] [A public place is also a location that is readily accessible to all those who may wish to go there even though not a place that the general public also frequents.]

13 California Penal Code 17030 PC.  As used in this part, "prohibited area" means any place where it is unlawful to discharge a weapon.

14 Judicial Council Of California Criminal Jury Instruction CALCRIM 2530 -- Carrying a loaded firearm in public --To prove that the defendant is guilty of this crime, the People must prove that:[1] The defendant carried a loaded firearm (on (his/her) person/in a vehicle); [2] The defendant knew that (he/she) was carrying a firearm; AND [3] At that time, the defendant was in a public place or on a public street in (an incorporated city/in an unincorporated area where it was unlawful to discharge a firearm).

15 California Penal Code Section 26350(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 the following: (A) A public place or public street in an incorporated city or city 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 and county.  (2) A person is guilty of openly carrying an unloaded handgun when that person carries an exposed and unloaded handgun inside or on a vehicle, whether or not on his or her person, while in or on any of the following:(A) A public place or public street in an incorporated city or city 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 and county.

16 People v. Clark (1996) 45 Cal.App.4th 1147, 1153.  (“Under the commonly understood meaning of the term “loaded,” a firearm is “loaded” when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not “loaded” if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet “loaded” as the term is commonly understood.”)

17 People v. Dillard (1984) 154 Cal.App.3d 261, 267.  (“Since knowledge that the weapon is loaded is not an element of the offense of violation of [former Penal Code] section 12031, subdivision (a), [California's “carrying a loaded firearm in public” law] lack of such knowledge is not a defense.”)

18 See Penal Code 25850(a), endnote 1, above.

19 These facts were loosely based on People v. Knight (2004) 121 Cal.App.4th 1568 where the court held that “[former Penal Code] Section 12031, subdivision (a)(1) [California's “carrying a loaded firearm in public” law], however, does not criminalize the possession of a loaded firearm unless defendant carries it on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or unless defendant carries it on his or her person or in a vehicle while in any public place or on any public street in a prohibited area of unincorporated territory.”

20 AMENDMENT IV
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.

21 Rancho Cucamonga criminal defense attorney John Murray represents clients accused of gun offenses throughout the Inland Empire and San Gabriel Valley, including Ontario, Fontana, Chino, Pomona, West Covina and Alhambra.

22 California Penal Code 26045 PC. (a) Nothing in Section 25850 is intended to preclude the carrying of any loaded firearm, under circumstances where it would otherwise be lawful, by a person who reasonably believes that any person or the property of any person is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. (b) A violation of Section 25850 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 subdivision 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. Upon trial for violating Section 25850, the trier of fact shall determine whether the defendant was acting out of a reasonable belief that the defendant was in grave danger. (c) As used in this section, "immediate" means the brief interval before and after the local law enforcement agency, when reasonably possible, has been notified of the danger and before the arrival of its assistance.

23 People v. Humphrey, (1996) 13 Cal.4th 1073, 1083. ("Although the belief in the need to defend [that is, the need to assert self-defense] must be objectively reasonable, a jury must consider what "would appear to be necessary to a reasonable person in a similar situation and with similar knowledge…" (CALJIC No. 5.50.) It judges reasonableness "from the point of view of a reasonable person in the position of defendant…""")

24 California Penal Code 25900 PC.

25 California Penal Code 26020 PC.

26 See same.

27 California Penal Code 26000 PC.  Section 25850 does not apply to members of the military forces of this state or of the United States engaged in the performance of their duties.

28 California Penal Code 26025 PC.

29 California Penal Code 26005 PC.

30 California Penal Code 26040 PC.  Nothing in Section 25850 shall prevent any person from carrying a loaded firearm in an area within an incorporated city while engaged in hunting, provided that the hunting at that place and time is not prohibited by the city council.

31 California Penal Code 25610.  (a) Section 25400 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: (1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle. (2) The firearm is carried by the person directly to or from any motor 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 the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with the provisions listed in Section 16580.

32 California Penal Code 26010 PC.  Section 25850 does not apply to the carrying of any handgun by any person as authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5.

33 California Penal Code 26015 PC.  Section 25850 does not apply to any armored vehicle guard, as defined in Section 7582.1 of the Business and Professions Code.

34 California Penal Code 26015 PC.  Section 25850 does not apply to any armored vehicle guard, as defined in Section 7582.1 of the Business and Professions Code.

35 California Penal Code 26030 PC.

36 California Penal Code 26035 PC.  Nothing in Section 25850 shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.

37 People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 5.  (“It can thus be seen that none of the subdivisions …of [former Penal Code 12031 PC, California's “carrying a firearm in public” law] expressly create any exemptions from the liability established for violation of subdivision (a). Rather, subdivisions (f) through (j) are legislative statements of the intent of the section not to prevent or preclude particular kinds of conduct specified in those sections. What is that conduct? When it involves hunting not otherwise prohibited (subd. (g)), or making a lawful defense of one's person or property (subd. (h)), or engaging in the act of making or attempting to make a lawful arrest (subd. (i)) the statute states that nothing in the section shall prevent or preclude the carrying of a loaded firearm. But, when it refers to geographical areas where certain conduct is permitted - “place of business” and “private property” in subdivision (f) [currently subdivision (h)] and “place of residence including any temporary residence or campsight” in subdivision (j), the statute [that is, California Penal Code 12031 PC] states that nothing in the section shall prevent any person from having a loaded weapon.”)

38 California Penal Code 26045(a), endnote 22, above.

See also Peruta v. County of San Diego (2010) 758 F. Supp. 2d 1106 (“[T]he provisions of [former] section 12031 … expressly permit loaded open carry for immediate self-defense.”)

39 California Penal Code 25850(c)  -- Carrying a loaded firearm in violation of this section is punishable, as follows: …(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, as a misdemeanor, punishable 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.

40 California Penal Code 25850(c)(5) -- Where 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.

41 California Penal Code 25850(c)(6) -- Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.

42 California Penal Code 25850(c)(1) -- Where 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.

43 California Penal Code 25850(c)(2) -- Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.

If you possess a gun you know is stolen, you may also be charged with Penal Code 496 Receiving Stolen Property. And if the evidence suggests you stole a gun, you could be charged with the more serious offense of Grand Theft Firearm.

44 “Unlawful possession of a firearm” means that you have taken the gun without permission from the gun's lawful owner or from a person who had lawful custody of the weapon. See also California Penal Code 25850(c)(4) -- Where the person is not in lawful possession of the firearm, or 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.

And see California's “Felon with a Firearm” law, Penal Code 29800 PC.

45 California Penal Code 25850(c)(3) -- Where 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. 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.”)

46 People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, 1372.  (“In the published portion of this opinion, we examine and interpret the street gang firearm possession statutes, and conclude, as a matter of first impression, that they do not require proof that the charged firearm possession was connected with the underlying gang participation…and at 1381…the Legislature intended the street gang firearms statutes to make it possible to convict active gang members of a felony whenever they are found in possession of a loaded or concealed firearm, even when the prosecution cannot establish any temporal or causal connection between the firearm possession and gang activity. (Robles, supra, 23 Cal.4th at p. 1113, 99 Cal.Rptr.2d 120, 5 P.3d 176.)”)

47 CALCRIM 2530 -- Carrying a loaded firearm in public.  Bench notes -- LESSER INCLUDED OFFENSES.  (“If the defendant is charged with one of the sentencing factors that makes this offense a felony, then the misdemeanor offense is a lesser included offense. The statute defines as a misdemeanor all violations of the statute not covered by the specified sentencing factors. (Pen. Code, § 12031(a)(2)(G).) The court must provide the jury with a verdict form on which the jury will indicate if the sentencing factor has been proved. If the jury finds that the sentencing factor has not been proved, then the offense should be set at a misdemeanor.”)

48 California Penal Code 25850(d)(1) Every person convicted under this section who has previously been convicted of an offense enumerated in Section 23515, or of any crime made punishable under a provision listed in Section 16580, shall serve a term of at least three months in a county jail, 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 for a period of at least three months. (2) The court shall apply the three-month minimum sentence 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 this section or by granting probation or suspending the imposition or execution of sentence with conditions other than those set forth in this section, 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.

49 8 USC 1227 (a) -- Classes of deportable aliens.  Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…(2) Criminal offenses…(C) Certain firearm offenses -- 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.

Because Penal Code 25850 PC involves carrying a firearm, it is a California crime that can lead to deportation.

50 California Penal Code 1203.4 PC -- Change of plea. This section outlines the procedures by which a defendant can expunge his California Penal Code 12031 PC “carrying a loaded firearm in public” conviction from his criminal record.

51 California Penal Code 17 -- Reducing a wobbler from a felony to a misdemeanor.  Penal Code 17(b)(3) states "(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [as is Penal Code 12031 PC, California's “carrying a loaded firearm in public law], it is a misdemeanor for all purposes under the following circumstances: (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.")

52 California Penal Code 1203.3 PC -- Probation; revocation, modification, termination. This code section outlines the procedures that must be followed in order to qualify for early termination of probation in a California firearm case.

53 California Penal Code 29820(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.

54 See same.  (“(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 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”)

55 California Penal Code 4852.17 PC -- 4852.17.

56 CALJIC 17.16 -- Personal use of a dangerous or deadly weapon.  [“A deadly or dangerous weapon” means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death[.]

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…”)

57 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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