Penal Code 25100 PC – Criminal Storage of a Firearm

Penal Code 25100 prohibits the criminal storage of a firearm a criminal offense. In simple terms, this means storing a gun where a child may access it. If a child accesses the weapon and then injures either himself/herself or another person, it becomes a serious crime.

A violation can result in a felony charge punishable by up to three years in state prison.

25100 PC states that “a person commits the crime of criminal storage of a firearm…if all of the following conditions are satisfied: The person keeps any firearm within any premises that are under the person’s custody or control. The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian. [And] the child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person.”

Examples

• putting a gun in a hallway closet and a child finds it and shoots the gun’s owner,
• storing a rifle in a garage where a child later gets it and shoots a neighbor, and
• keeping a handgun in a nightstand and a child discovers it and accidentally shoots himself.

Defenses

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

• the defendant kept the gun in a locked container,
• the accused had the firearm in his/her possession, and/or
• the defendant was arrested after an unlawful search and seizure.

Penalties

The maximum penalties for a violation of this law are:

• a felony charge (as opposed to a charge of a misdemeanor or an infraction), and
• custody in the state prison for up to three years.

In this article, our criminal defense attorneys will explain the following about California gun storage laws:

• 1. When does criminal storage of a firearm become a crime?
  • 1.1. Criminal storage of a firearm in the first degree
  • 1.2. Criminal storage of a firearm in the second degree
  • 1.3. Criminal storage of a firearm in the third degree
• 2. Are there defenses to Penal Code 25100?
  • 2.1. Locked container
  • 2.2. Possession
  • 2.3. Unlawful search and seizure
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Child endangerment – PC 273a
  • 7.2. Carrying a loaded firearm – PC 25850
  • 7.3. Carrying a concealed weapon – PC 25400

1. When does criminal storage of a firearm become a crime?

This statute says that a person can commit the crime of criminal storage of a firearm in one of three ways. These are either in the:

• first degree,
• second degree, or
• third degree.

1.1. Criminal storage of a firearm in the first degree

A prosecutor must prove the following to convict a person of this crime:

1. the accused kept a firearm in a place under his/her control,
2. the person knew, or should have known, that a child could get to the weapon without a parent’s permission, and
3. the child accessed the firearm and thereby caused death or great bodily injury to the child or someone else.¹

1.2. Criminal storage of a firearm in the second degree

A prosecutor must prove the following to convict a person of this offense:

1. the accused kept a firearm in a place under his/her control,
2. the person knew, or should have known, that a child could get to the weapon without a parent’s permission,
3. the child accessed the firearm and thereby caused injury, other than great bodily injury, to either himself/herself or someone else, or
4. the child got the gun and took it to a public place or committed the crime of brandishing a weapon.²

1.3. Criminal storage of a firearm in the third degree

A prosecutor must prove the following to convict a person of this offense:

1. the accused kept a firearm in a place under his/her control, and
2. the person negligently stored it in a location where he/she knew that a child could get to it.³

2. Are there defenses to Penal Code 25100?

Defense attorneys use different strategies to oppose charges under these laws. These include showing that:

1. the defendant kept the firearm in a locked container.
2. the accused carried the firearm on his/her person.
3. the defendant was arrested after an unlawful search and seizure.

All of these defenses are set forth in Penal Code 25105 PC.

2.1. Locked container

A defendant is innocent under these laws if he/she kept a gun stored in either:

• a locked container, or
• a location that a reasonable person would believe was secure.⁴

2.2. Possession

An accused is not guilty under this statute if he/she carried the firearm:

• on his/her person, or
• within such a close enough area that he/she could quickly access it.⁵

2.3. Unlawful search and seizure

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.

Evidence obtained via an unlawful search/seizure can get excluded from a criminal case. This includes evidence of the improper storage of a gun.

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

3. What are the penalties?

Criminal storage of a firearm in the first degree is a wobbler. A wobbler is an offense that the prosecutor can charge as either:

• a misdemeanor, or
• a felony.

A misdemeanor offense is punishable by:

• custody in the county jail for up to one year, and/or
• a maximum fine of $1,000.⁶

A felony offense is punishable by:

• custody in state prison for up to three years, and/or
• a maximum fine of $10,000.⁷

Criminal storage of a firearm in the second or third degree is charged as a misdemeanor. The offense is punishable by:

• custody in the county jail for up to one year, and/or
• a maximum fine of $1,000.⁸

4. Are there immigration consequences?

A conviction under these laws may have negative immigration consequences.

California law says that aggravated felonies can result in a non-citizen defendant being:

• deported, or
• marked as inadmissible.

The facts of a case determine whether or not a felony is “aggravated,” with severe facts causing aggravation.

This means a violation of these laws will have negative immigration results in cases with grave facts.

5. Can a person get a conviction expunged?

A person can get a conviction expunged if:

1. the conviction was for a misdemeanor offense, and
2. the defendant successfully completed either a jail term or probation.

A person, though, cannot get a felony conviction expunged. Expungements are not allowed for crimes that lead to prison terms.

6. Does a conviction affect gun rights?

A misdemeanor conviction will not affect a person’s gun rights.

Felony convictions, though, will cause a defendant to lose his/her rights to:

• buy a gun,
• own a gun, and
• possess a gun.

California law says that convicted felons must give up their gun rights.

7. Are there related offenses?

There are three crimes related to criminal storage of a firearm. These are:

1. child endangerment – PC 273a
2. carrying a loaded firearm – PC 25850, and
3. carrying a concealed weapon – PC 25400

7.1. Child endangerment – PC 273a

California law defines child endangerment as willfully exposing a child under 18 to:

• pain,
• suffering, or
• danger.

A person can be charged for this crime even if a particular risk never came to fruition.

7.2. Carrying a loaded firearm – PC 25850

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

• carry a loaded firearm in public, or
• carry a loaded firearm in his/her vehicle.

A “public place” is any place which is:

1. open to general use, and
2. readily accessible by anyone wishing to go there.

7.3. Carrying a concealed weapon – PC 25400

Penal Code 25400 PC makes it a crime for a person to carry a concealed firearm either:

• on his/her person, or
• in his/her vehicle.

This law applies to any

• pistol,
• revolver, or
• other firearm capable of being concealed upon one’s person.

Legal References: