§ 25850 PC – Carrying a Loaded Firearm – California Law

California Penal Code § 25850 PC prohibits you (absent a valid CCW) from carrying a loaded firearm

1. in a public place,
2. on a public street, or
3. in a motor vehicle.

This offense is generally treated as a misdemeanor punishable by up to one year in county jail.

The language of the statute reads:

25850. (a) 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 firearm 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 handgun in a pocket.

Common Defenses

Based on our long history of fighting firearm charges in California, we rely on such defenses as:

• you had no knowledge of carrying a firearm,
• the firearm was not loaded,
• you are exempt from the law, and/or
• the police conducted an illegal search and seizure.

Penalties

Carrying a loaded gun	California penalties*
no aggravating factors (most cases)	misdemeanor: Up to 1 year in jail and/or up to $1,000
you are not the registered gun owner, or you were previously convicted of certain misdemeanor or drug offenses	misdemeanor: Up to 1 year in jail and/or up to $1,000 or felony: 16 months, 2 years, or 3 years in county jail and/or up to $1,000
you had a prior felony or gun conviction, or the gun was stolen, or you belonged to a criminal street gang, or the gun was not lawfully possessed, or you were legally prohibited from having the gun	felony: 16 months, 2 years, or 3 years in county jail, and/or up to $10,000
*There is a 3-month mandatory minimum sentence if you have already been convicted of certain offenses, such as assault with a deadly weapon (PC 254a1), shooting an inhabited dwelling or car (PC 246), or brandishing a weapon (PC 417).

Our California criminal defense lawyers will explain 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 Penal Code 25850 PC penalties?
  • 3.1. Wobbler offenses
  • 3.2. Straight felonies
  • 3.3. Three-month mandatory minimum
• 4. Are there immigration consequences?
• 5. Can I 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
• Additional reading

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

Penal Code 25850 PC is the California statute that makes it a crime to carry or have possession of a loaded firearm in public.¹

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

1. you carried a loaded firearm on your person or in your vehicle,
2. you knew that you were carrying a firearm, and
3. at that time, you were 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 open to common and general use and 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 you must have knowledge of the presence of a firearm in order to be guilty under this law.⁸

But it is unnecessary, for a conviction, that you knew your 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 Penal Code 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.

2. Are there legal defenses?

Here at Shouse Law Group, we have represented literally thousands of people accused of weapons offenses. In our experience, we have found these four defenses to be especially persuasive with judges, juries and prosecutors:

1. you had no knowledge of carrying the firearm,
2. the firearm was not loaded,
3. you are exempt from the law, and/or
4. the police performed an illegal search and seizure.

2.1. No knowledge of carrying a firearm

You are guilty under this statute only if you know you are carrying a gun either:

• on your person, or
• in a vehicle.

Therefore, we would amass all the available evidence to raise a “reasonable doubt” as to what you knew. Perhaps someone planted the gun on you, for example.

2.2. Firearm not loaded

You are guilty under PC 25850 only if the gun you are carrying is in fact loaded. Therefore, we can always raise the defense that:

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

We work with the best forensic experts in the industry who may be able to demonstrate that the guns in question did not meet the legal definition of loaded.

2.3. Exempt from the law

Certain persons have exemptions from criminal liability under this statute. This means it is legal for you to carry a loaded firearm in public if we can show that you are:

• a California police officer/peace officer (either active or honorably retired),¹⁰
• an agent of any federal law enforcement agency (for example, 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

One of the most common defense strategies we employ is to show that the police violated your Constitutional rights by conducting a search or arrest without probable cause. This way, we can ask the judge to suppress any evidence the police found through these illegal means.

Therefore, even if you were carrying a loaded gun in violation of Penal Code 25850, we may be able to get all evidence of the gun thrown out. That may leave the D.A. with too weak of a case to prosecute you further.¹⁵

3. What are the Penal Code 25850 PC 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, you must serve at least three months in county jail if you have certain prior convictions.

3.1. Wobbler offenses

A violation of this statute becomes a wobbler if you:

1. are not the registered owner of the gun, or
2. were previously convicted of a certain misdemeanor or certain drug offense.

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. you had a prior felony or firearm conviction,
2. the firearm was stolen,
3. you belonged to a criminal street gang,
4. the firearm was not lawfully possessed, or
5. you were legally prohibited from having ownership or possession of the firearm.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

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

1. you violate Penal Code 25850, and
2. you have 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 Penal Code 25850 conviction can sometimes lead to deportation and other immigration consequences.

5. Can I get a conviction expunged?

If you are convicted of this crime, you are entitled to an expungement if you:

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

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

Under Penal Code 1203.4, an expungement releases you 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 having possession of a firearm in California.

This means that:

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

you will lose your right to own and possess a gun.

7. Are there related offenses?

There are three statutory 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 to carry a concealed firearm either:

• on your 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 you sell, lease, or transfer without a permit.

Additional Reading

For more information, see our related articles:

• Is “open carry” of firearms legal or illegal in California?
• How to legally transport firearms in California
• Conditions for carrying a gun in a motor vehicle
• Can a felon own a gun in California?
• How to legally store firearms in California

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Legal References: