There are three elements required to prove the offense of carrying a loaded weapon (Penal Code sections 25850(a)). The defendant:
- carried a loaded firearm on his/her person or within a vehicle
- knew about the presence of the firearm
- while in a public place or on a public street
For the firearm to be considered “loaded”, there must be a cartridge or round in the gun’s firing chamber or in a magazine/clip attached to the firearm. Importantly, while the defendant must have “knowledge” of the gun’s presence, he/she is not required to know the gun was loaded!
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 loaded firearm and they include:
- lack of knowledge that gun was present
- the gun is not legally defined as a “firearm” (Penal Code section 165200(a))
- the gun was not loaded
- the event did not occur in a public place or upon a public street
- illegal search & seizure (Penal Code section 1538.5)
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.
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
The offense for carrying a loaded weapon, as a misdemeanor, is punishable with probation and up to 1 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 loaded 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 3 years in state prison (unless further factors require additional years).
Finally, a misdemeanor conviction will require a 10-year ban on owning or possessing a firearm. If the defendant is convicted of a felony, the ban is for life.