Elements
There are three elements required to prove the offense of carrying a concealed weapon (Penal Code sections 25400(a)1, (a)(2), or (a)(3). The defendant:
- concealed a firearm on his/her person or within a vehicle
- knew about the presence of the firearm
- substantially concealed the firearm
This law applies to drivers, passengers in a car, and pedestrians who either carry the gun (usually a pistol or revolver) on their person or even in something the person is holding ( a backpack, purse, duffel bag, etc). It matters not if the gun is unloaded, too!
Defenses
Assuming that the defendant was otherwise legally capable of owning or possessing a gun in the first place, there are many possible defenses to carrying a concealed firearm and they include:
- the gun was in “plain view”
- lack of knowledge that gun was present
- the gun is not legally defined as a “firearm” (Penal Code section 165200(a))
- the gun was stored in car trunk or even a locked container in car (not glove box)
- concealed weapons permit or “CCW” (Penal Code section 26150(a))
- gun was in your home or place of business (taxi, Uber/Lyft)
- illegal search & seizure (Penal Code section 1538.5)
Exemptions
There are certain individuals who are not subject to this gun statute and they include:
- law enforcement officers
- licensed gun dealers
- licensed hunters or fisherman(using/transporting guns for this use)
- bank guard/messengers
- United States armed forces personnel
To determine if any of the above defenses may apply to a client’s case, he/she must discuss all the details of the case with an experienced attorney, no matter how irrelevant the details may seem to the client. Such details can be critical to show that one or more defenses might apply.
Punishment
Assuming the violation is a first offense, the penalties for carrying a concealed weapon, as a misdemeanor, is punishable with informal (summary) probation for up to one year of custody in the county jail. Also, there may be fines and fees. Also, although the defendant will not lose his/her right to possess or own a gun, generally, the gun involved in the case could still be ordered destroyed by the court!
The following are examples of “aggravating circumstances”, and will elevate the charge of carrying a concealed firearm to a felony. They include, but are not limited to:
- any prior felony conviction (Penal Code section 29800(a)(1))
- person prohibited from owning a firearm (Penal Code section 29900)
- prior firearm convictions
- gang member status
- the firearm involved was stolen
Depending on the circumstances of the case, a defendant could still receive several years of formal probation and up to one year of custody in the county jail. However, if probation is denied then the defendant can be punished by up to three years in state prison (unless further factors require additional years). Additionally, as a felony, the “lifetime” ban on owning or possessing a firearm will apply to the defendant.