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.

We will quote the full language of the code section, and then provide legal analysis below:

25100. (a) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the first degree” if all of the following conditions are satisfied:

(1) The person keeps any firearm within any premises that are under the person’s custody or control.

(2) 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, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.

(3) The child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person, or the person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law obtains access to the firearm and thereby causes death or great bodily injury to themselves or any other person.

(b) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the second degree” if all of the following conditions are satisfied:

(1) The person keeps any firearm within any premises that are under the person’s custody or control.

(2) 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, or that a person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law is likely to gain access to the firearm.

(3) The child obtains access to the firearm and thereby causes injury, other than great bodily injury, to the child or any other person, or carries the firearm either to a public place or in violation of Section 417, or the person prohibited from possessing a firearm or deadly weapon pursuant to state or federal law obtains access to the firearm and thereby causes injury, other than great bodily injury, to themselves or any other person, or carries the firearm either to a public place or in violation of Section 417.

(c) Except as provided in Section 25105, a person commits the crime of “criminal storage of a firearm in the third degree” if the person keeps any firearm within any premises that are under the person’s custody or control and negligently stores or leaves a firearm in a location where 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, unless reasonable action is taken by the person to secure the firearm against access by the child.

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. Does a conviction affect gun rights?
• 6. Are there related offenses?
  • 6.1. Child endangerment – PC 273a
  • 6.2. Carrying a loaded firearm – PC 25850
  • 6.3. 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. 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.

6. 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

6.1. 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.

6.2. 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.

6.3. 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: