California Law re "Unlicensed Sale or Selling of Firearms"

Penal Code Sections 12070 and 12071 PC

California Penal Code 12070 PC, a misdemeanor, prohibits you from selling, leasing, or transferring firearms unless you have a valid license to do so. Violating this California gun law subjects you to six months in a county jail and a maximum $1,000 fine for every firearm you sell, lease, or transfer.¹

And even though the law against the unlicensed sale of firearms seems relatively straight-forward, it's not. California firearms laws are fraught with legal jargon, technicalities, and exceptions that make these offenses somewhat difficult to understand and even more difficult to defend.

Fortunately, that’s where we come in. As former cops and prosecutors, we have first-hand knowledge of how firearms offenses are prosecuted and…more importantly…defended. Our in-depth knowledge about California’s gun laws allows us to challenge the prosecution’s evidence in ways that less savvy defense attorneys simply can’t.

California Penal Code 12070 PC -- Unlicensed sale of firearms

California Penal Code 12070 PC, subdivision “a” states that no person shall sell, lease, or transfer firearms unless he or she has been issued a license pursuant to Penal Code 12071 PC. Subdivision “b” then enumerates 19 different people, transactions, and firearms that are exempt from prosecution under this law.

But before we discuss these exceptions, it’s important to understand the precise legal definition of the term “firearm”.

According to California law, a gun or firearm is “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.” ²

Examples: Examples of “firearms”…which are generically referred to as guns…include (but are not limited to):

• pistols,



• revolvers,



• handguns,



• rifles (including short-barreled rifles),



• shotguns (including short-barreled shotguns), and



• the frame or receiver of the weapon.³

Excluded from this definition under Penal Code 12070 PC are

• pellet guns,



• BB guns, and



• unloaded “antique” firearms.⁴

Persons exempt from the licensing requirements

Examples of some of the exceptions to California’s “unlicensed sale of firearms” law include (but are not limited to):

• Persons who are obeying a court order or who are acting under the direction of a civil judgment, criminal conviction, or probate matter (for example, you receive your spouse’s gun following his demise),⁵



• The infrequent sale, lease, or transfer of firearms (with respect to Penal Code 12070 PC, “infrequent” means less than six handgun transactions per calendar year involving any number of handguns per transaction or occasional and irregular transactions that involve firearms other than handguns),⁶



• “Gun show traders”,⁷



• Those who hold federally issued firearm sales licenses who don’t reside in California,⁸



• Transactions by wholesalers to dealers and transactions involving unloaded firearms between wholesalers,⁹



• Loans of unloaded firearms or firearms that are loaded with blank cartridges for use in the “entertainment industry”,¹⁰



• Transactions to or from a gunsmith for service or repair,¹¹ and



• People who hold special permits that authorize them to engage in specific transactions involving short-barreled rifles, short-barreled shotguns, machineguns, and assault weapons.¹²

And the bottom lines is that even these exceptions have exceptions, which is why it is critical that anyone charged with a firearm or weapon offense should immediately consult with a criminal defense attorney who is readily familiar with California gun laws and all of their nuances.

California’s laws pertaining to selling and transferring firearms are stricter than in some other states

Some states allow individuals to sell firearms out of their homes, in newspaper ads, online, and even at garage sales. These unlicensed individuals are exempt from conducting background checks of their buyers, allowing them to sell guns to people otherwise banned from possessing or owning firearms.

Some of the people normally banned from buying guns include felons, those convicted of certain domestic violence offenses, minors, and individuals diagnosed as “mentally ill”.

California requires that all transactions involving firearms…even those between private parties…must be completed through a licensed dealer.

Even the exceptions listed above, such as lawful “infrequent” transactions between unlicensed individuals, must ultimately be brokered through licensed dealers.¹³ Unlicensed individuals can arrange for the sale, lease, or transfer of the firearms, but a licensed dealer must be involved to complete the transaction.

Defenses to Penal Code 12070 PC, California’s law against the unlicensed sale of firearms

If you should find yourself in the unfortunate situation of being arrested for being an unlicensed dealer of firearms, don’t despair. Oftentimes the police aren’t as knowledgeable as they believe they are.

You may fall under one of the exceptions to this law…an exception the cops simply didn’t recognize. Or…

Perhaps you were entrapped into selling a gun to an undercover cop. If you are an unlicensed dealer and only sold the weapon to the undercover decoy because he/she threatened you or coerced you into doing so, entrapment serves as a valid legal defense.¹⁴

And any other type of police misconduct could absolve you of your criminal culpability of violating this law.¹⁵

California firearms offenses are no different than any other crime. As Oakland criminal defense attorney Jim Hammer explains¹⁶, “If your attorney has mastered the applicable laws and conducted a thorough investigation of the facts, he will know the most effective California legal defenses to present on your behalf.”

California Penal Code 12071 PC -- Licenses for firearm sales

In order to obtain a California license to sell firearms…and therefore avoid prosecution under Penal Code 12070 PC…you must obtain and maintain

1. a valid federal firearms license,



2. any regulatory or business license or licenses required by your local government,



3. a valid seller’s permit issued by the State Board of Equalization,



4. a certificate of eligibility issued by the Department of Justice “DOJ” (NOTE: you are ineligible to receive a license if you are banned from owning, possessing, purchasing, or receiving firearms under Penal Code 12021 PC, California’s felon with a firearm law),



5. a local one-year license issued by the authorized licensing authority in one of the following forms:



• a) in the form prescribed by the California Attorney General,



• b) in a regulatory or business license that clearly states “Valid for retail sales of firearms” and is endorsed by the appropriate licensing agency, or



• c) in a letter by the appropriate licensing agency that states that the jurisdiction does not require a license to sell firearms and/or does not restrict or regulate firearms sales, and



6. a listing on the DOJ’s centralized list of firearms dealers.¹⁷

These licensing conditions are for most “generic” firearms. Licensing requirements for selling large capacity machine guns are addressed under Penal Code section 12079 PC. Licensing requirements for selling machine guns are addressed separately under Penal Code 12250 PC.

And just because you have a license to sell firearms, that doesn’t mean that you are authorized to sell all firearms. It means that you are licensed to sell “legal” firearms. Thus even if you have a license…but sell illegal or “dangerous” firearms, prosecutors could revoke your license and prosecute you under Penal Code 12020 PC, California’s law against manufacturing, selling, and/or possessing specific firearms.¹⁸

Similarly, if you fail to maintain any of the above requirements, the state will revoke your California license to sell firearms. And if you sell, lease, or transfer firearms without a license, you face prosecution under Penal Code 12070, California’s law against the unlicensed sale of firearms.

Additional requirements for maintaining your California license to sell firearms

One of the ways that you can forfeit your license is by failing to conduct a legitimate background check before selling firearms to an individual. If you neglect to abide by this procedure (or sell, lease, or transfer a firearm to an individual who fails that check), the state could revoke your California license to sell firearms.

And if you continue to engage in transactions that involve selling, leasing, or transferring firearms after your license has been revoked, you subject yourself to prosecution.

Call us for help…

For more information about California’s law against the unlicensed sale of firearms, 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.

You may also find helpful information in our related articles on California Gun Laws, Penal Code 12021 PC Felon with a Firearm, Penal Code 12280 PC California Assault Weapons, Penal Code 12020 PC, Manufacturing, Selling, and/or Possessing Dangerous Firearms, and California Legal Defenses.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada’s laws against the illegal sale of firearms. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.¹⁹

Online Resource:

Dangerous Weapons Control Law - Provided by the California Attorney General, this link lists Penal Code sections 12070-12084 PC which deal with California firearms dealing and gun shows.

Legal References:

¹ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(a) No person shall sell, lease, or transfer firearms unless he or she has been issued a license pursuant to [Penal Code] Section 12071. Any person violating this section is guilty of a misdemeanor.”)

See also California Penal Code 19 PC -- Misdemeanor punishment. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)

See also California Penal Code 12001 PC -- Definitions. (“(k) For purposes of Sections 12021, 12021.1, 12025, [Penal Code] 12070 [California’s law against the unlicensed sale of firearms], 12072, 12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, notwithstanding the fact that the term “any firearm” may be used in those sections, each firearm or the frame or receiver of the same shall constitute a distinct and separate offense under those sections.”)

² California Penal Code 12001 PC -- Definitions of firearms, subdivision “b”.

³ California Penal Code 12001 PC -- Definition of firearms. (“(c) As used in Sections 12021, 12021.1, [Penal Code] 12070 [California’s “unlicensed sale of firearms” law], 12071, 12072, 12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, the term “firearm” includes the frame or receiver of the weapon…(f) Nothing shall prevent a device defined as a “handgun,” “pistol,” “revolver,” or “firearm capable of being concealed upon the person” from also being found to be a short-barreled shotgun or a short-barreled rifle, as defined in Section 12020.”)

⁴ California Penal Code 12001 PC -- Definition of firearms. (“(e) For purposes of [Penal Code] Sections 12070 [California’s “unlicensed sale of firearms” law], 12071, and paragraph (8) of subdivision (a), and subdivisions (b), (c), (d), and (f) of Section 12072, the term “firearm” does not include an unloaded firearm that is defined as an “antique firearm” in Section 921(a)(16) of Title 18 of the United States Code…(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 12070 PC, California’s law against the unlicensed sale of firearms.

⁵ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(b) Subdivision (a) ([endnote 1, above] does not apply to any of the following: (1) The sale, lease, or transfer of any firearm by a person acting pursuant to operation of law, a court order, or pursuant to the Enforcement of Judgments Law (Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure), or by a person who liquidates a personal firearm collection to satisfy a court judgment. (2) A person acting pursuant to subdivision (e) of Section 186.22a or subdivision (c) of Section 12028. (3) The sale, lease, or transfer of a firearm by a person who obtains title to the firearm by intestate succession or by bequest or as a surviving spouse pursuant to Chapter 1 (commencing with Section 13500) of Part 2 of Division 8 of the Probate Code, provided the person disposes of the firearm within 60 days of receipt of the firearm…(8) Deliveries and transfers of firearms made pursuant to Section 12028, 12028.5, or 12030…(c)(2) (2) As used in this section, “operation of law” includes, but is not limited to, any of the following: (A) The executor or administrator of an estate, if the estate includes firearms. (B) A secured creditor or an agent or employee thereof when the firearms are possessed as collateral for, or as a result of, a default under a security agreement under the Commercial Code. (C) A levying officer, as defined in Section 481.140, 511.060, or 680.260 of the Code of Civil Procedure. (D) A receiver performing his or her functions as a receiver, if the receivership estate includes firearms. (E) A trustee in bankruptcy performing his or her duties, if the bankruptcy estate includes firearms. (F) An assignee for the benefit of creditors performing his or her functions as an assignee, if the assignment includes firearms. (G) A transmutation of property between spouses pursuant to Section 850 of the Family Code. (H) Firearms received by the family of a police officer or deputy sheriff from a local agency pursuant to Section 50081 of the Government Code. (I) The transfer of a firearm by a law enforcement agency to the person who found the firearm where the delivery is to the person as the finder of the firearm pursuant to Article 1 (commencing with Section 2080) of Chapter 4 of Division 3 of the Civil Code.”)

⁶ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(c)(1) As used in this section, “infrequent” means: (A) For handguns, less than six transactions per calendar year. For this purpose, “transaction” means a single sale, lease, or transfer of any number of handguns. (B) For firearms other than handguns, occasional and without regularity.”)

⁷ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(5) The sale, lease, or transfer of used firearms other than handguns, at gun shows or events, as specified in Section 12071, by a person other than a licensee or dealer, provided the person has a valid federal firearms license and a current certificate of eligibility issued by the Department of Justice, as specified in Section 12071, and provided all the sales, leases, or transfers fully comply with subdivision (d) of Section 12072. However, the person shall not engage in the sale, lease, or transfer of used firearms other than handguns at more than 12 gun shows or events in any calendar year and shall not sell, lease, or transfer more than 15 used firearms other than handguns at any single gun show or event. In no event shall the person sell more than 75 used firearms other than handguns in any calendar year. A person described in this paragraph shall be known as a “Gun Show Trader.” The Department of Justice shall adopt regulations to administer this program and shall recover the full costs of administration from fees assessed applicants. As used in this paragraph, the term “used firearm” means a firearm that has been sold previously at retail and is more than three years old.”)

⁸ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(10) Sales, deliveries, or transfers of firearms by manufacturers, importers, or wholesalers licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto to persons who reside outside this state who are licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, if the sale, delivery, or transfer is in accordance with Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (11) Sales, deliveries, or transfers of firearms by persons who reside outside this state and are licensed outside this state pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto to wholesalers, manufacturers, or importers, if the sale, delivery, or transfer is in accordance with Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto.”)

⁹ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(12) Sales, deliveries, or transfers of firearms by wholesalers to dealers… (15) The delivery, sale, or transfer of an unloaded firearm by one wholesaler to another wholesaler if that firearm is intended as merchandise in the receiving wholesaler's business.”)

¹⁰ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(16) The loan of an unloaded firearm or the loan of a firearm loaded with blank cartridges for use solely as a prop for a motion picture, television, or video production or entertainment or theatrical event.”)

¹¹ California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(18) Loans or returns of firearms to or from a gunsmith for service or repair.”)

¹² California Penal Code 12070 PC -- Unlicensed sale of firearms. (“(19) The delivery, sale, return, or transfer of a firearm regulated pursuant to Article 6 (commencing with Section 12095) of Chapter 1, Chapter 2 (commencing with Section 12200), Chapter 2.3 (commencing with Section 12275), or Chapter 2.5 (commencing with Section 12301) by a person who holds a permit issued pursuant to Section 12095, 12230, 12287, or 12305, if the delivery, sale, return, or transfer is conducted in accordance with the terms and conditions of the permit.

¹³ California Department of Justice, Attorney General, Frequently Asked Questions about California Firearms. (“What is the process for purchasing a firearm in California? All firearms purchases and transfers, including private party transactions and sales at gun shows, must be made through a licensed dealer under the Dealer Record of Sale (DROS) process. California imposes a 10-day waiting period before a firearm can be released to a buyer or transferee. A person must be at least 18 years of age to purchase a rifle or shotgun. To buy a handgun, a person must be at least 21 years of age, and either 1) possess an HSC plus successfully complete a safety demonstration with the handgun being purchased or 2) qualify for an HSC exemption. As part of the DROS process, the buyer must present "clear evidence of identity and age" which is defined as a valid, non-expired California Driver's License or Identification Card issued by the Department of Motor Vehicles. A military identification accompanied by permanent duty station orders indicating a posting in California is also acceptable. If the buyer is not a U.S. Citizen, then he or she is required to demonstrate that he or she is legally within the United States by providing to the firearms dealer with documentation that contains his/her Alien Registration Number or I-94 Number. Purchasers of handguns are also required to provide proof of California residency, such as a utility bill, residential lease, property deed, or government-issued identification (other than a drivers license or other DMV-issued identification)”)

¹⁴ Under California law, entrapment refers to a situation where a "normally law abiding person" is induced to commit a crime that he/she otherwise would not have committed. Entrapment only serves as a legal defense when the situation involves overbearing official conduct, seen in the form of pressure, harassment, fraud, flattery, or threats. If you can prove that you only sold the firearm because you were induced or coerced into doing so, you may be acquitted of Penal Code 12070 PC, California’s law against the unlicensed sale of firearms.

¹⁵ “Police misconduct” is a broad term that covers a variety of acts. The bottom line is that anytime an officer violates any of your constitutional or civil rights, that misconduct serves to absolve you of at least some of your criminal culpability.

¹⁶ Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients accused of violating California’s law against the unlicensed sale of firearms throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose. If you would like to schedule a consultation with Mr. Hammer, please contact him at Shouse Law Group.

¹⁷ California Penal Code 12071 PC -- Licenses relating to the sale of firearms. (“(a)(1) As used in this chapter, the term “licensee,” “person licensed pursuant to Section 12071,” or “dealer” means a person who has all of the following: (A) A valid federal firearms license. (B) Any regulatory or business license, or licenses, required by local government. (C) A valid seller's permit issued by the State Board of Equalization. (D) A certificate of eligibility issued by the Department of Justice pursuant to paragraph (4). (E) A license issued in the format prescribed by paragraph (6). (F) Is among those recorded in the centralized list specified in subdivision (e)…(4) A person may request a certificate of eligibility from the Department of Justice. The Department of Justice shall examine its records and records available to the department in the National Instant Criminal Background Check System in order to determine if the applicant is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm and issue a certificate to an applicant if the department's records indicate that the applicant is not a person who is prohibited by state or federal law from possessing firearms….(6) A license granted by the duly constituted licensing authority of any city, county, or city and county, shall be valid for not more than one year from the date of issuance and shall be in one of the following forms: (A) In the form prescribed by the Attorney General. (B) A regulatory or business license that states on its face “Valid for Retail Sales of Firearms” and is endorsed by the signature of the issuing authority. (C) A letter from the duly constituted licensing authority having primary jurisdiction for the applicant's intended business location stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms…(e)(1) Except as otherwise provided in this paragraph, the Department of Justice shall keep a centralized list of all persons licensed pursuant to subparagraphs (A) to (E), inclusive, of paragraph (1) of subdivision (a). The department may remove from this list any person who knowingly or with gross negligence violates this article. Upon removal of a dealer from this list, notification shall be provided to local law enforcement and licensing authorities in the jurisdiction where the dealer's business is located.”)

¹⁸ Penal Code 12020 PC, California’s law against manufacturing, selling, and/or possessing illegal or dangerous weapons lists over 20 types of “dangerous” or illegal firearms and other weapons that are per se illegal. Regardless of whether you hold a license to sell firearms, your license does not permit the sale, lease, or transfer of these designated weapons.

¹⁹ Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to the illegal sale of firearms in Nevada. Their Nevada law offices are located in Reno and Las Vegas.

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