Penal Code 25850 PC – Carrying a Loaded Firearm

Updated May 24, 2020

Penal Code 25850 PC makes it a crime in California for a person to carry a loaded firearm in a public place, on a public street, or in a motor vehicle. This offense is generally prosecuted as a misdemeanor and carries a penalty of up to one year in county jail.

25850 PC states that “a person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the 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.”

Note that this section effectively does away with California’s open-carry laws.

Examples

• driving on a public street with a loaded revolver in the glovebox.
• walking through a park with a loaded shotgun in a backpack.
• strolling through a neighborhood with a loaded gun in a pocket.

Defenses

A person can fight the charge by asserting a legal defense. A few common defenses are:

• no knowledge of carrying a firearm,
• firearm not loaded,
• exempt from the law, and/or
• illegal search and seizure.

Penalties

Carrying a loaded firearm in public is a misdemeanor. The penalties include:

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

Note, though, that aggravating factors can make the crime a wobbler offense. This means a prosecutor can charge the offense as either a misdemeanor or a felony.

A felony conviction can result in imprisonment in county jail for up to three years.

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

• 1. When is it a crime to carry a loaded firearm?
  • 1.1. What is a firearm?
  • 1.2. What does “loaded” mean?
• 2. Are there legal defenses?
  • 2.1. No knowledge of carrying a firearm
  • 2.2. Firearm not loaded
  • 2.3. Exempt from the law
  • 2.4. Illegal search and seizure
• 3. What are the penalties?
  • 3.1. Wobbler offenses
  • 3.2. Straight felonies
  • 3.3. Three-month mandatory minimum
• 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. Carrying a concealed weapon – PC 25400
  • 7.2. Openly carrying an unloaded firearm in public – PC 26350
  • 7.3. Unlicensed sale of firearms – PC 26500

In California, it is a crime for a person to carry a loaded firearm in public.

1. When is it a crime to carry a loaded firearm?

Penal Code 25850 PC is the California statute that makes it a crime for a person to carry a loaded firearm in public.¹

A prosecutor must prove the following to convict a person under this code section:

1. the defendant carried a loaded firearm on his person or in his vehicle,
2. the defendant knew that he 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 or area where it was unlawful to discharge a firearm.²

A “public place” is any place which is open to common and general use and is readily accessible by anyone wishing to go there.³

Questions often arise under this statute on the meaning of:

• firearm, and
• loaded firearm.

1.1. What is a firearm?

California law says that a “firearm” is:

• any device designed to be used as a weapon, and
• from which a projectile is discharged through a barrel by an explosion.⁴

Common examples of firearms are:

• pistols,
• revolvers,
• rifles,
• shotguns, and
• tasers.⁵

The following are not considered firearms:

• pellet guns, and
• BB guns.⁶

1.2. What does “loaded” mean?

Under California law, a firearm is loaded if there is either:

1. an unexpended cartridge or shell in the firing chamber, or
2. the same is in either a magazine or clip attached to the firearm.⁷

Note that an accused must have knowledge of the presence of a firearm in order to be guilty under this law.⁸

But it is not necessary, for a conviction, that the accused knew that his gun was loaded.⁹

Example: Jerome is driving his car and has no clue that his loaded gun is in the glovebox. Here, Jerome is not guilty under PC 25850 because he had no knowledge of the weapon.

Now consider that Jerome is driving his car. He knows that his gun is in the auto, but he doesn’t believe it is loaded. Jerome is pulled over and it turns out the gun is loaded. Here, Jerome is guilty under the law – even though he did not know the gun was loaded.

A defendant can raise a legal defense to challenge an accusation of carrying a loaded gun.

2. Are there legal defenses?

A defendant can raise a legal defense to challenge an accusation of carrying a loaded gun.

Three common defenses are:

1. no knowledge of carrying a firearm,
2. firearm not loaded,
3. exempt from the law, and/or
4. illegal search and seizure.

2.1. No knowledge of carrying a firearm

A person is only guilty under this statute if he knows he is carrying a gun either:

• on his person, or
• in a vehicle.

This means it is a defense for an accused to show that he did not know about a firearm.

2.2. Firearm not loaded

A defendant is only guilty under PC 25850 if the gun he is carrying is in fact loaded. Therefore, a defendant can always raise the defense that:

• while he may have been carrying a firearm,
• it was not loaded.

2.3. Exempt from the law

Certain persons are exempt from criminal liability under this statute. This means it is legal for them to carry a loaded firearm in public. Some of these parties include:

• a California police officer (either active or honorably retired),¹⁰
• an agent of any federal law enforcement agency (e.g., FBI),¹¹
• a member of the United States military,¹²
• a recreational shooter,¹³ and
• a person with a concealed carry permit.¹⁴

2.4. Illegal search and seizure

Sometimes the police may have discovered a defendant’s gun by way of an illegal search. This happens when they conduct a search without a warrant and without probable cause.

If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case (e.g., carrying a loaded firearm in public) could get reduced or even dismissed.

3. What are the penalties?

A simple violation of this law is a misdemeanor. The penalties include:

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

Note, though, that certain aggravating factors can make a PC 25850 violation either:

• a wobbler, or
• a straight felony.

Further, a person will have to serve a minimum of three months in county jail if he has certain prior convictions.

3.1. Wobbler offenses

A violation of this statute becomes a wobbler if the defendant:

1. is not the registered owner of the gun, or
2. was previously convicted of a certain misdemeanor or certain drug offense.¹⁵

A wobbler is a crime that a prosecutor can charge as either:

• a misdemeanor, or
• a felony.

A misdemeanor is punishable as described above in Section 3.

A felony is punishable by:

• imprisonment in county jail for up to three years, and/or
• a maximum fine of $1,000.¹⁶

3.2. Straight felonies

Carrying a loaded firearm will be charged as a straight felony if either:

1. the defendant had a prior felony or firearm conviction,
2. the firearm was stolen,
3. the defendant belonged to a criminal street gang,
4. the firearm was not lawfully possessed, or
5. the defendant was legally prohibited from owning or possessing the gun.¹⁷

As a straight felony, the offense is punishable by:

• custody in county jail for up to three years, and/or
• a maximum fine of $10,000.¹⁸

3.3. Three-month mandatory minimum

A defendant must serve a minimum of three months in county jail if:

1. he violates Penal Code 25850, and
2. has already been convicted of certain offenses.¹⁹

These offenses include:

1. assault with a deadly weapon, per Penal Code 254a1 PC,
2. shooting an inhabited dwelling house or car, per Penal Code 246 PC, and
3. brandishing a weapon, per Penal Code 417 PC.

California law refers to this minimum of three months as a three-month mandatory minimum.

4. Are there immigration consequences?

A conviction of this law may have negative immigration consequences.

United States immigration law says that certain kinds of criminal convictions can lead to:

• a non-citizen being deported, and
• a non-citizen being marked “inadmissible.”

A category of “deportable” crimes includes “firearms offenses.”²⁰

This means, depending on the facts of the case, a PC 25850 conviction could lead to deportation.

5. Can a person get a conviction expunged?

A person convicted of this crime is entitled to an expungement if he:

1. successfully completes probation, or
2. completes a jail term (whichever is relevant).

If a party violates a probation term, he could still possibly get the offense expunged. But this would be in the judge’s discretion.

Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.²¹

6. Does a conviction affect gun rights?

A conviction under this statute may have a negative effect on the convicted party’s gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.

This means that:

• if the facts of a case result in a prosecutor charging the crime as a felony, and
• the accused is convicted of the same,

the defendant will lose his rights to own and possess a gun.

7. Are there related offenses?

There are three crimes related to carrying a loaded firearm. These are:

1. carrying a concealed weapon – PC 25400,
2. openly carrying an unloaded firearm in public – PC 26350, and
3. the unlicensed sale of firearms – PC 26500.

7.1. Carrying a concealed weapon – PC 25400

Penal Code 25400 PC is the California statute that makes it a crime for a person to carry a concealed firearm either:

• on his person, or
• in a vehicle.

Carrying a concealed gun is a crime no matter if it is:

• loaded, or
• unloaded.

7.2. Openly carrying an unloaded firearm in public – PC 26350

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

1. openly carry an unloaded firearm, and
2. do so in a public area.

Note that this statute effectively repealed what previously had been a limited “open carry” law in California.

7.3. Unlicensed sale of firearms – PC 26500

Penal Code 26500 PC is the California law that makes it a misdemeanor to:

1. sell, lease or transfer firearms, and
2. do so without a valid permit.

It is a separate violation under this law for every gun that a person sells, leases, or transfers without a permit.

For additional help…

Call us for help.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

For charges of carrying a loaded gun in Nevada and Colorado, please see our articles on:

• “Can I Carry a Loaded Gun in Nevada?” and
• “Colorado Gun Laws.”

Legal References: