Penal Code 16590 PC – Prohibited Weapons in California

Updated

Penal Code 16590 PC is the California statute that prohibits manufacturing, selling, and/or possessing certain dangerous weapons. These “generally prohibited weapons” include items like:

  • nunchakus (commonly referred to as nunchucks),
  • brass knuckles,
  • short-barreled shotguns, and
  • ballistic knives.

Examples of illegal acts:

  • making short-barreled shotguns in a home and offering them for sale.
  • carrying a set of brass knuckles in a pant's pocket.
  • selling nunchucks to a neighborhood kid.

Defenses

A defendant can try to beat a charge under this statute with a legal defense. Common defenses include:

Penalties

A violation of these laws is a wobbler. This means a prosecutor can charge the offense as either:

At most, the crime is punishable by custody in county jail for up to three years.

Our California criminal defense attorneys will highlight the following in this article:

short barreled rifle penal code 16590 pc generally prohibited weapon
Short-Barreled Rifles are an example of a generally prohibited weapon in California

1. What are California's generally prohibited weapons?

Penal Code 16590 PC lists several weapons that are generally prohibited in the State of California. These weapons include:

  1. Prohibited firearms
    • short-barreled shotguns and rifles, per Penal Code 33215 PC,
    • undetectable firearms, per Penal Code 24610 PC,
    • firearms that are not immediately recognizable as firearms, per Penal Code 24510,
    • unconventional pistols, per Penal Code 31500,
    • cane guns, wallet guns, or zip guns, per Penal Codes 24410 PC, 24710 PC, and 33600
  2. Prohibited firearm equipment/ammunition
  3. Prohibited knives/swords
  4. Prohibited martial arts weapons
  5. Other prohibited weapons

2. What activities are illegal re these weapons?

Under this statute, it is a crime for a person to knowingly:

  • manufacture,
  • import into the state,
  • offer for sale,
  • lend, or
  • possess

any generally prohibited weapon.

Questions often arise under these laws on the meaning of:

  • knowingly, and
  • possess.

Also note that certain people and weapons are exempt from prosecution under these laws.

2.1. Knowingly

A person is only guilty under this statute if he acts while knowing that an object is:

  • a weapon, or
  • capable of being used as a weapon.1

Note that:

  • it is not necessary for a prosecutor to prove,
  • that the accused intended to use the object as a weapon.

It is enough that the defendant knew the object was capable of being used as a weapon.2

Example: Isabella goes to a swap meet and buys a great-looking antique cane. She has no clue, though, that it contains a sword. She later tries to take it through airport security and TSA discovers that it has a blade hidden inside it.

Here, Isabella is likely not guilty of possessing a generally prohibited weapon because she had no knowledge the cane was an illegal:

  • cane sword, or
  • capable of being used as a weapon

2.2. Possess

California law says that a person “possesses” an object when he either:

  • actually possesses it, or
  • constructively possesses it.

An accused has “actual” possession of something when he:

  • holds it, or
  • has immediate access to it.3

This includes when a person has a weapon:

  1. somewhere on his body, or
  2. in something he is holding or wearing (e.g., a purse or backpack).

A person has “constructive” possession of something when he:

  • doesn't have immediate access to it,
  • but nonetheless has control of it, or the right to control it.4

Example: Tim brings a set of brass knuckles into the State of California. He takes them and puts them in his home's garage. The police stop and arrest him the next day on suspicion of having a prohibited weapon.

Here, Tim is guilty of both possessing brass knuckles and importing them into the state. As to possession, while he was not carrying them when arrested, he had control of them via access to his garage.

2.3. People and weapons exempt from prosecution

Certain people and situations are exempt from prosecution under this statute. Some of these include:

  • when a weapon is sold or transferred to, or possessed by, law enforcement agencies,5
  • the possession of nunchakus by schools that teach martial arts,6
  • the possession of relic firearms or ammunition by persons of antique or curio,7
  • the possession of these weapons by historical societies, libraries, and museums,8
  • use of unloaded weapons in movies, television, and/or video productions,9
  • when a person turns a generally prohibited weapon over to law enforcement,10 and
  • the possession of these weapons by forensic laboratories.11
attorneys working hard on a case
Fortunately, there are defenses to this charge...

3. Are there legal defenses?

A defendant can contest a charge under these laws with a good legal defense.

Three common defenses are:

  1. no prohibited weapon,
  2. no knowledge, and/or
  3. unlawful search and seizure.

3.1. No prohibited weapon

A person is only guilty under this statute if he performs some act with a “generally prohibited weapon.” This means one of the weapons listed above or specifically listed within Penal Code 16590. A defense, therefore, is for an accused to say that:

  • while he may have had a weapon,
  • it was not a prohibited weapon as listed in the statute.

3.2. No knowledge

Recall that a person is only guilty of violating these laws if he knew that an object was:

  1. a prohibited weapon, or
  2. capable of being used as a weapon.

This means it is a defense for a defendant to say that he did not have this knowledge.

3.3. Unlawful search and seizure

Many charges under this statute arise after an officer stops a suspect and conducts some type of investigation.

But know that authorities cannot:

  • conduct a search, or
  • take property

without a valid search warrant. If no warrant, then they must have a legal excuse for not having one.

If the police:

  • gather evidence from an unlawful search and seizure,
  • then that evidence can get excluded from a criminal case.

This means that any charges in the case could get reduced or even dismissed.

california prisoner in jail for generally prohibited weapon
A conviction can lead to jail time and/or a fine

4. What are the penalties for a 16590 PC conviction?

A violation of these laws is a wobbler. This means a prosecutor can charge the crime as either:

  • a misdemeanor, or
  • a felony.12

If a misdemeanor, the crime is punishable by:

  • custody in county jail for up to one year, and/or
  • a maximum fine of $1,000.

If a felony, the offense is punishable by:

  • imprisonment in jail for up to three years, and/or
  • a maximum fine of $10,000.

5. Are there immigration consequences?

A conviction under this statute will typically not have any bad immigration consequences.

If convicted of a crime, sometimes a non-citizen can be:

An example is when a non-citizen gets convicted of an aggravated felony.

California courts, though, have ruled that:

  • a PC 16590 conviction,
  • does not amount to this type of crime.13

6. Can a person get a conviction expunged?

A person can get a 16590 conviction under expunged.

A judge will award an expungement provided that the defendant successfully completed:

  • probation, or
  • his jail term (whichever was imposed).

An expungement is favorable because it:

  • removes many of the hardships,
  • associated with a conviction.

7. Does a conviction affect gun rights?

A conviction under these laws can have a negative impact on a person's gun rights.

California law says that convicted felons are prohibited from:

  • owning a gun, and
  • possessing a gun.

Recall that a PC 16590 violation can be charged as either a misdemeanor or a felony.

Therefore, if a defendant is:

  • charged with a felony act involving a generally prohibited weapon,
  • and convicted of the same,

then he will lose his gun rights.

8. Are there related offenses?

There are three crimes related to illegal acts with generally prohibited weapons. These are:

  1. carrying a loaded firearm in public – PC 25850,
  2. carrying an unloaded firearm in public – PC 26350, and
  3. brandishing a weapon – PC 417.

8.1. Carrying a loaded firearm in public – PC 25850

Penal Code 25850 PC is the California statute that makes it a crime for a person to:

  1. carry a loaded firearm, and
  2. do so in public or in a vehicle.

Note that a person is guilty under this law while acting with any firearm. The weapon does not also have to be prohibited under Penal Code 16590.

8.2. Carrying an unloaded firearm in public – PC 26350

Penal Code 26350 PC is the California statute that makes it a crime for a person to:

  • openly carry an unloaded firearm,
  • in a public area.

Note that a person can legally carry an unloaded gun in a private residence.

8.3. Brandishing a weapon – PC 417

Penal Code 417 PC is the California statute that defines the crime of brandishing a weapon. A person commits this offense by

  1. drawing or exhibiting a deadly weapon or a firearm, or
  2. using a deadly weapon in a fight.

Note that this statute is not limited to just a gun. It also applies to any object that can be a deadly weapon.

For additional help...

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Legal References:

  1. CALCRIM No. 2500 - Illegal Possession, etc., of Weapon. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Azevelo (1984) 161 Cal.App.3d 235; and, People v. King (2006) 38 Cal.4th 617.

  2. People v. Favalora (1974) 42 Cal.App.3d 988. See also People v. Mercer (1995) 42 Cal.App.4th Supp. 1.

  3. People v. Plumlee (2008) 166 Cal.App.4th 935.

  4. People v. Barnes (1997) 57 Cal.App.4th 552.

  5. California Penal Code 17730 PC.

  6. California Penal Code 22015 PC.

  7. California Penal Code 17700 PC.

  8. California Penal Code 17715 PC.

  9. California Penal Code 17720 PC.

  10. California Penal Code 17735 PC.

  11. California Penal Code 17745 PC.

  12. In re David V (2008) 166 Cal.App.4th 801.

  13. United States v. Villanueva-Gaxiola (2000) 119 F.Supp.2d 1185.

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