California Penal Code 12031 PC punishes carrying a loaded firearm in a vehicle or public place.1
This is a separate and distinct offense from carrying a concealed weapon, which is prohibited under Penal Code 12025 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.
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:
(Click on a title to proceed directly to that section)
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 12021 PC Felon with a Firearm, Penal Code 12025 PC Carrying a Concealed Weapon, Penal Code 417 PC Brandishing a Weapon, California Legal Defenses, California’s Self-Defense Laws, California Expungement Law, and Restoring Your Firearms Rights.
Penal Code 12031 PC reads as follows: "(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her 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.
Loaded
A firearm is "loaded" if 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; except that 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."4
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.5
Firearm
A "firearm" under California’s gun laws means "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion."6
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."7
Examples: Examples of "firearms"…which are synonymously referred to as "guns"…include (but are not limited to):
Excluded from the definition under Penal Code 12031 PC are
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.10
Prohibited area
A "prohibited area" refers to "any place where it is unlawful to discharge a weapon."11
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.
You didn’t realize you were carrying the firearm
Regardless of the exact Penal Code 12031 PC violation prosecutors charge you with, if you don’t know you are carrying a firearm, you aren’t guilty of this offense. This is because carrying a loaded firearm in public necessarily requires that you know the firearm is present.12
This defense works best when, for example, the police find the gun either in the car or in a bag that you are carrying (as opposed to tucked into your waistband).
Example: When security officers check your backpack at a Lakers game, they find a loaded handgun at the bottom of the backpack. 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.
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 offenses.
A gun is deemed "not loaded" when its ammunition is in a separate storage compartment.13
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.
Claiming that you didn’t know the firearm was loaded will not serve as a legal defense to this crime.14 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.
You didn’t carry the firearm in a "public place or on a public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory."
If the prosecution doesn’t establish that the arresting officer knew that the place in which he/she arrested you specifically fell within one of these categories, you should be acquitted of the charge. You can’t legally be convicted of an offense 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 12031 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 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.15
Unfortunately, police officers, like anyone else, are often driven by unethical motives that compel them to do unjust acts. Some of these acts include "planting" or "fabricating" evidence.
If a cop has a grudge against you for whatever reason, he/she could "plant" a gun in your car or create a false report alleging you carried a gun on your person (turning in someone else’s gun at the station). And despite how reprehensible police misconduct is, it’s not at all uncommon.
As Rancho Cucamonga criminal defense attorney John Murray explains16, "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."
In addition to the legal defenses we just described, there are a number of defenses that are built into the language of Penal Code 12031 PC itself. If
then you have not unlawfully carried a loaded firearm in public in violation of this California gun law.
Penal Code 12031(b) PC -- Peace officers, military members, target ranges
California Penal Code 12031(b) PC states that the crime of carrying a loaded firearm in a public place doesn’t apply to:
Penal Code 12031(c) PC -- POST certification
California Penal Code 12031(c) 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
Penal Code 12031(d) -- Security guards and private investigators
California Penal Code 12031(d) PC pertains to classes of individuals who have received special training on firearms, including
Penal Code 12031(h), Penal Code 12031(i), and Penal Code 12031(j), and Penal Code 12031(l) -- Business owners
California Penal Code 12031(h) states that the crime of carrying a loaded firearm in a public place doesn’t apply to people who are engaged in a lawful business who have a loaded firearm in that place of business.20
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.21
So while you may be allowed to have a loaded gun in your place of business or in your home (which is permitted under Penal Code 12031(l) ), you are only allowed to carry the loaded gun if you
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.
Absent aggravating circumstances, carrying a loaded firearm in a vehicle or on your person is a misdemeanor. If convicted of this offense, you face
When there are aggravating factors, those circumstances elevate the misdemeanor to a "wobbler" or to 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.
"Wobbler" provisions of Penal Code 12031 PC
Penal Code 12031 PC becomes a wobbler when…in addition to carrying a loaded firearm in a public place or in a car…you
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 or three years in the California State Prison.
Straight felonies under Penal Code 12031 PC
There are four remaining sentencing schemes that are outlined in Penal Code 12031 PC, all of which are straight felonies (meaning they cannot be reduced to misdemeanors). If you get convicted of carrying a loaded firearm on your person or in your car…and any of the following subdivisions apply…you face
These subdivisions include:
With respect to this last subdivision, prosecutors can convict you of Penal Code 12031 PC as a felony based on your active participation in a gang even if your carrying a loaded firearm isn’t connected to your involvement with the gang.27
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 only as a misdemeanor.28
Prior firearm convictions
If you are convicted of any Penal Code 12031 PC violation…and have previously been convicted of
you must serve a minimum three month county jail sentence.29
California firearm offenses and aliens
If you are a legal immigrant or legal alien, a Penal Code 12031 PC conviction could additionally result in deportation.30 For more information about how California’s firearm laws affect aliens, please visit our article on California crimes that lead to deportation.
Expunging your California Penal Code 12031 PC conviction
If you are granted probation in a misdemeanor or felony Penal Code 12031 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.31
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.32 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.33
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 12031 PC misdemeanor conviction, you will be prohibited from owning or possessing a firearm until you are 30 years old.34
But if you get convicted as a felony, you will be prohibited from purchasing, receiving, owning, or possessing a firearm for life.35 For a more detailed discussion, visit our page on California Penal Code 12021 pc "felon with a firearm" law.
If you are convicted of a felony under one of the "wobbler" subdivisions of Penal Code 12031 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.36 California law defines "dangerous weapon" as any weapon, instrument, or object that is capable of being used to inflict great bodily injury or death.37 A loaded firearm therefore qualifies as a dangerous weapon.
For more information about California’s firearm laws, or to discuss your case confidentially with one of our attorneys, please don’t hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
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.38
1California Penal Code 12031 PC -- Carrying a loaded firearm in a public place. ("(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her 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.")
2Our 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.
3California Penal Code 12031 PC -- Carrying a loaded firearm in public, subdivision "a", endnote 1, above.
4California Penal Code 12031 PC -- Carrying a loaded firearm in public, subdivision "g".
5People 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).
6California Penal Code 12001 PC -- Definitions, subdivision "b".
7California Penal Code 12001 PC -- Definitions. ("(d) For the purposes of [Penal Code] Sections 12025 and 12031 [California’s "carrying a loaded firearm in public" law], the term "firearm" also shall include 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.")
8People 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 California Penal Code 12031 PC -- Carrying a loaded firearm in public, NOTES OF DECISIONS, section 5. "Firearms". ("The term "firearm" as used in this section includes rifles and shotguns. 51 Op.Atty.Gen. 197, 10-3-68.")
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 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.")
9California Penal Code 12001 PC -- Definition of firearms. ("(g) For purposes of [California Penal Code] Sections 12551 and 12552, the term "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.") This definition makes reference to specific penal code sections that deal with minors and firearms and only includes BB guns and pellet guns as firearms in those sections. Since these weapons rely on the force of air pressure and not combustion, they do not qualify as firearms under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law.
10California Jury Instructions – Criminal – CALCJI 16.431 "Public Place". ("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.]")
11California Penal Code 12031 PC -- Carrying a loaded firearm in public, subdivision "f".
12Judicial 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).")
13People 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.")
14People 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 [Penal Code] section 12031, subdivision (a), [California’s "carrying a loaded firearm in public" law] lack of such knowledge is not a defense.")
15These facts were loosely based on People v. Knight (2004) 121 Cal.App.4th 1568 where the court held that "[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."
16Rancho 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.
17California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(b) Subdivision (a) [prohibiting carrying a loaded firearm in public] shall not apply to any of the following: (1) Peace officers listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, whether active or honorably retired, other duly appointed peace officers, honorably retired peace officers listed in subdivision (c) of Section 830.5, other honorably retired peace officers who during the course and scope of their employment as peace officers were authorized to, and did, carry firearms, full-time paid peace officers of other states and the federal government who are carrying out official duties while in California, or any person summoned by any of those officers to assist in making arrests or preserving the peace while the person is actually engaged in assisting that officer. Any peace officer described in this paragraph who has been honorably retired shall be issued an identification certificate by the law enforcement agency from which the officer has retired. The issuing agency may charge a fee necessary to cover any reasonable expenses incurred by the agency in issuing certificates pursuant to this paragraph and paragraph (3). Any officer, except an officer listed in Section 830.1 or 830.2, subdivision (a) of Section 830.33, or subdivision (c) of Section 830.5 who retired prior to January 1, 1981, shall have an endorsement on the identification certificate stating that the issuing agency approves the officer's carrying of a loaded firearm [which exempts him from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. No endorsement or renewal endorsement issued pursuant to paragraph (2) shall be effective unless it is in the format set forth in subparagraph (D) of paragraph (1) of subdivision (a) of Section 12027, except that any peace officer listed in subdivision (f) of Section 830.2 or in subdivision (c) of Section 830.5, who is retired between January 2, 1981, and on or before December 31, 1988, and who is authorized to carry a loaded firearm pursuant to this section, shall not be required to have an endorsement in the format set forth in subparagraph (D) of paragraph (1) of subdivision (a) of Section 12027 until the time of the issuance, on or after January 1, 1989, of a renewal endorsement pursuant to paragraph (2). (2) A retired peace officer, except an officer listed in Section 830.1 or 830.2, subdivision (a) of Section 830.33, or subdivision (c) of Section 830.5 who retired prior to January 1, 1981, shall petition the issuing agency for renewal of his or her privilege to carry a loaded firearm every five years [which exempts him from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. An honorably retired peace officer listed in Section 830.1 or 830.2, subdivision (a) of Section 830.33, or subdivision (c) of Section 830.5 who retired prior to January 1, 1981, shall not be required to obtain an endorsement from the issuing agency to carry a loaded firearm. The agency from which a peace officer is honorably retired may, upon initial retirement of the peace officer, or at any time subsequent thereto, deny or revoke for good cause the retired officer's privilege to carry a loaded firearm. A peace officer who is listed in Section 830.1 or 830.2, subdivision (a) of Section 830.33, or subdivision (c) of Section 830.5 who is retired prior to January 1, 1981, shall have his or her privilege to carry a loaded firearm denied or revoked by having the agency from which the officer retired stamp on the officer's identification certificate "No CCW privilege." (3) An honorably retired peace officer who is listed in subdivision (c) of Section 830.5 and authorized to carry loaded firearms by this subdivision shall meet the training requirements of Section 832 and shall qualify with the firearm at least annually. The individual retired peace officer shall be responsible for maintaining his or her eligibility to carry a loaded firearm. The Department of Justice shall provide subsequent arrest notification pursuant to Section 11105.2 regarding honorably retired peace officers listed in subdivision (c) of Section 830.5 to the agency from which the officer has retired. (4) Members of the military forces of this state or of the United States engaged in the performance of their duties. (5) Persons who are using target ranges for the purpose of practice shooting with a firearm or who are members of shooting clubs while hunting on the premises of those clubs [are exempt from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. (6) The carrying of handguns by persons as authorized pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4. (7) Armored vehicle guards, as defined in Section 7521 of the Business and Professions Code, (A) if hired prior to January 1, 1977, or (B) if hired on or after that date, if they have received a firearms qualification card from the Department of Consumer Affairs, in each case while acting within the course and scope of their employment. (8) Upon approval of the sheriff of the county in which they reside, honorably retired federal officers or agents of federal law enforcement agencies, including, but not limited to, the Federal Bureau of Investigation, the Secret Service, the United States Customs Service, the Federal Bureau of Alcohol, Tobacco, and Firearms, the Federal Bureau of Narcotics, the Drug Enforcement Administration, the United States Border Patrol, and officers or agents of the Internal Revenue Service who were authorized to carry weapons while on duty, who were assigned to duty within the state for a period of not less than one year, or who retired from active service in the state. Retired federal officers or agents shall provide the sheriff with certification from the agency from which they retired certifying their service in the state, the nature of their retirement, and indicating the agency's concurrence that the retired federal officer or agent should be accorded the privilege of carrying a loaded firearm. Upon approval, the sheriff shall issue a permit to the retired federal officer or agent indicating that he or she may carry a loaded firearm in accordance with this paragraph [which exempts him from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. The permit shall be valid for a period not exceeding five years, shall be carried by the retiree while carrying a loaded firearm, and may be revoked for good cause. The sheriff of the county in which the retired federal officer or agent resides may require recertification prior to a permit renewal, and may suspend the privilege for cause. The sheriff may charge a fee necessary to cover any reasonable expenses incurred by the county.")
18California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(c) Subdivision (a) shall not apply to any of the following who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training: (1) Patrol special police officers appointed by the police commission of any city, county, or city and county under the express terms of its charter who also, under the express terms of the charter, (A) are subject to suspension or dismissal after a hearing on charges duly filed with the commission after a fair and impartial trial, (B) are not less than 18 years of age or more than 40 years of age, (C) possess physical qualifications prescribed by the commission, and (D) are designated by the police commission as the owners of a certain beat or territory as may be fixed from time to time by the police commission [which exempts him from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. (2) The carrying of weapons by animal control officers or zookeepers, regularly compensated as such by a governmental agency when acting in the course and scope of their employment and when designated by a local ordinance or, if the governmental agency is not authorized to act by ordinance, by a resolution, either individually or by class, to carry the weapons, or by persons who are authorized to carry the weapons pursuant to Section 14502 of the Corporations Code, while actually engaged in the performance of their duties pursuant to that section. (3) Harbor police officers designated pursuant to Section 663.5 of the Harbors and Navigation Code.")
19California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(d) Subdivision (a) shall not apply to any of the following who have been issued a certificate pursuant to [Penal Code] Section 12033. The certificate shall not be required of any person who is a peace officer, who has completed all training required by law for the exercise of his or her power as a peace officer, and who is employed while not on duty as a peace officer. (1) Guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state. (2) Guards of contract carriers operating armored vehicles pursuant to California Highway Patrol and Public Utilities Commission authority (A) if hired prior to January 1, 1977, or (B) if hired on or after January 1, 1977, if they have completed a course in the carrying and use of firearms which meets the standards prescribed by the Department of Consumer Affairs [which exempts them from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. (3) Private investigators and private patrol operators who are licensed pursuant to Chapter 11.5 (commencing with Section 7512) of, and alarm company operators who are licensed pursuant to Chapter 11.6 (commencing with Section 7590) of, Division 3 of the Business and Professions Code, while acting within the course and scope of their employment. (4) Uniformed security guards or night watch persons employed by any public agency, while acting within the scope and course of their employment. (5) Uniformed security guards, regularly employed and compensated in that capacity by persons engaged in any lawful business, and uniformed alarm agents employed by an alarm company operator, while actually engaged in protecting and preserving the property of their employers or on duty or en route to or from their residences or their places of employment, and security guards and alarm agents en route to or from their residences or employer-required range training [which exempts them from prosecution under Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law]. Nothing in this paragraph shall be construed to prohibit cities and counties from enacting ordinances requiring alarm agents to register their names. (6) Uniformed employees of private patrol operators and private investigators licensed pursuant to Chapter 11.5 (commencing with Section 7512) of Division 3 of the Business and Professions Code, while acting within the course and scope of their employment.")
20California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(h) Nothing in this section 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.")
21People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 5. ("It can thus be seen that none of the subdivisions (f) through (j) [of 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.")
22California Penal Code 12031 PC -- Carrying a loaded firearm in public. (i) Nothing in this section 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. (j)(1) Nothing in this section 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 the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. As used in this subdivision, "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. (2) A violation of this section is justifiable [and therefore exempt from Penal Code 12031 PC, California’s "carrying a loaded firearm in public" law] when a person who possesses a firearm reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who has or have been found to pose a threat to his or her life or safety. This paragraph 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 defendants charged with violating [California Penal Code] Section 12025 or of committing other similar offenses. Upon trial for violating this section [that is, Penal Code 12031 PC, California’s "carrying a firearm in public" law], the trier of fact shall determine whether the defendant was acting out of a reasonable belief that he or she was in grave danger…(l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.")
See also People v. Overturf at 7, endnote 21, above. ("Thus, before one may "carry" a weapon owned, possessed, or kept on the specified premises [under Penal Code 12031 PC, California’s "carrying a firearm in public" law], there must be a reasonable belief that the person or property of the defendant or another is in immediate danger and that it is necessary to carry the weapon in order to preserve the endangered person or property.")
23California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(G) In all cases other than those specified in subparagraphs (A) to (F), 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.")
24California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(E) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, 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. (F) Where the person is not listed with the Department of Justice pursuant to Section 11106, as the registered owner of the handgun, by imprisonment in the state prison, 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.")
See also CALJIC 12.54 -- Carrying a loaded firearm in public. ("In order to prove this crime, each of the following elements must be proved…[3] The person previously had been convicted of [a crime against [a person] [or] [property]] [, or] [a narcotics or dangerous drug violation], namely, .]")
See also CALJIC 16.470 -- Carrying a loaded firearm (unregistered owner). ("In order to prove this crime, each of the following elements must be proved:[1] A person carried a loaded firearm [on [his] [her] person] [or] [in a vehicle] while ; and [2] The person had knowledge of the presence of the firearm [.] [; and [3] The person was not registered with the Department of Justice as the registered owner of the firearm.]")
25If you possess a gun you know is stolen, you may also be charged with Penal Code 496 Receiving Stolen Property. If the evidence suggests you stole a gun, you could be charged with the more serious offense of Grand Theft Firearm.
26California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(2) Carrying a loaded firearm in violation of this section is punishable, as follows: (A) Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony. (B) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony. (C) 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. (D) Where the person is not in lawful possession of the firearm, as defined in this section [that is, under Penal Code 12031 PC, California’s "carrying a firearm in public" law], or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony…. (3) For purposes of this section [that is, Penal Code 12031 PC, California’s "carrying a firearm in public" law], "lawful possession of the firearm" means that the person who has possession or custody of the firearm either lawfully acquired and lawfully owns the firearm or has the permission of the lawful owner or person who otherwise has apparent authority to possess or have custody of the firearm. A person who takes a firearm without the permission of the lawful owner or without the permission of a person who has lawful custody of the firearm does not have lawful possession of the firearm.")
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.")
27People 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.)")
28CALCRIM 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.")
29California Penal Code 12031 PC -- Carrying a loaded firearm in public. ("(6)(A) Every person convicted under this section who has previously been convicted of an offense enumerated in Section 12001.6 [that is, California Penal Code 254 PC "assault with a deadly weapon", Penal Code 246 PC "shooting at an inhabited dwelling house or car", Penal Code 417 PC, California’s "brandishing a weapon" law, or any other California firearm offense], or of any crime made punishable under this chapter, 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 he or she be imprisoned for a period of at least three months. (B) 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 subdivision or by granting probation or suspending the imposition or execution of sentence with conditions other than those set forth in this subdivision, 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.")
308 U.S. Code Section 1227 -- Deportable aliens. ("(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 12031 PC involves carrying a firearm, it is a California crime that can lead to deportation.
31California 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.
32California 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.")
33California 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.
34California Penal Code 12021 PC -- Felon with a firearm. ("(e) Any person who (1) is alleged to have committed an offense listed in…subdivision (a) of Section 12031…and (2) 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 (a) of [Penal Code] Section 12031 [California’s "carrying a loaded firearm in public" law]…shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years.")
35See 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.")
36California 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 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 12021 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 -- Firearms; restoration of rights; exceptions. ("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 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.")
37CALJIC 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…")
38Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s firearm laws. Their Nevada law offices are located in Reno and Las Vegas.
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