Penal Code § 25850 PC – Carrying a Loaded Firearm – California Law

California Penal Code § 25850 PC prohibits you (unless you have 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.

Note that officers will often cite this section as

• PC 25850,
• 25850 PC or
• 25850 CPC

as shorthand for the California Penal Code.

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.

On July 27, 2022, the Honorable Steve White of the Sacramento Superior Court indicated in People of California v. Tony Diaz (docket number 21FE019850) that 25850(a)(1) is illegal. This case applies only to the jurisdiction under Sacramento Superior Court, and people are still advised to abide by PC 25850 for now.

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.

Defenses

You can fight the charge by asserting a legal defense. Common defenses to a violation of this section 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 district attorney can charge the offense as either a misdemeanor or a felony.

A felony conviction can result in a state prison sentence of up to three years.

Our California criminal defense lawyers 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 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

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 that 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 you 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 you knew that 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 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.

2. Are there legal defenses?

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

Four 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

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

• on your person, or
• in a vehicle.

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

2.2. Firearm not loaded

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

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

2.3. Exempt from the law

Certain persons have exemptions 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/peace 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 law enforcement officers may have discovered your 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 (for example, carrying a loaded firearm in public) could get reduced or even dismissed.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 will have to serve a minimum of 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 PC 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.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We defend against all types of charges from DUI to domestic violence in Los Angeles and throughout California.

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.”

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