Gun and Firearms Lawyer Joseph Tully on California’s Firearm Laws and Gun Crimes

My name is Joseph Tully.  I'm a certified specialist in criminal law by the California State Bar.  I'm going to speak to you today about very common gun crimes in California in very general terms.  This is not intended to be legal advice.  This is just for general information purposes and should not be used in place of a qualified attorney who can give you advice if you are facing charges.  I'm going to talk about the crimes that I see most commonly within California criminal law. 

California PC 29800 Felon in Possession of a Firearm

The first code section that I'm going to talk about is Penal Code Section 29800, and that is “Felon in possession of a firearm.”  In order to prove their case in court, the prosecution has to prove that the accused has previously been convicted of a felony.  They'll usually do that via introducing certified records into a court and that the person owned or had in their possession or control a firearm. 

Legally speaking, laws have for the last 40 years favored the prosecution.  The law has become very, very easy for people to be convicted.  So, in terms of someone being in possession or controlling a firearm, I usually give someone an example of, let's say I leave a CD in your car.  You can play the CD if you want to.  You could put it in the back seat if you want to.  You could put it in your glove compartment.  It's not your CD.  It's my CD. 

You still have it in your possession, and you have the ability to control it.  As I said, you could play it.  You could play Song #5 eight times in a row if you want to.  You could not play it.  But, you still have the ability to control it.  And, under California law, having that ability equates to owning it or having it in your possession.  This is a felony, and you can be punished by imprisonment for up to three years. 

CA Penal Code Section 25400 Carrying a Concealed Firearm

The next code section that I'm going to talk about is California Penal Code Section 25400, and that's “Carrying a concealed firearm.”  And, there are two ways the D.A. can charge it.  You can either carry it in a vehicle that's under your control or carry a concealed firearm on your person.  Interestingly, a firearm carried openly in a belt holster is not considered “concealed” under California law.  As to when you can open carry, I would definitely consult an attorney about that.

For California Penal Code Section 25400 “Punishment,” it is a misdemeanor, meaning, it's a year less in a county jail unless the person is a convicted felon.  Then it's a felony.  If the firearm is not registered to that person, then it's a felony.  So, if you are caught with a concealed gun in your car, and it's registered to you, that's a misdemeanor. 

If you're caught with a concealed gun in your car, and it's not registered to you, that's a felony.  If the person is a member of a street gang, then the case is treated as a felony.  If it's loaded and in reach, then that's considered a felony as well.

California PC Section 25850 Carrying a Loaded Firearm in Public

The next Penal Code Section is 25850, “Carrying a loaded firearm in public.”  And, to prove that case, the D.A. would have to prove someone was carrying a loaded firearm on their person or in a vehicle, and they're in a public place.  So, a lot of times, the D.A.'s office will charge the 25400 and the 25850 at the same time. 

I just had a case up in Yreka, California, where the D.A. charged both of these theories.  One, my client was accused of carrying a gun in a backpack that his son had put in the back seat a couple of days before, and he didn't know it.  We were able to prove that he did not know that the firearm was in that backpack, and we got a “Not Guilty” in that case. 

The punishment for 25850, again, it's treated as a misdemeanor unless the person has a previous felony, the person knew it was stolen, the person is a gang member or the person is not a legal owner.  Under all of those instances, that charge would be treated as a felony, and the person would face prison if convicted.

Penal Code Section 245(a)(2) Assault with a Firearm in California

The next common crime that's charged in California having to do with firearms is Penal Code Section 245(a)(2), and that's an “Assault with a firearm.”  And, a person can be charged with a 245(a)(2) “Assault with a firearm” if they shoot at somebody or if they use a gun as a weapon against someone.  So, for instance, pistol-whipping someone.  Now, a 245(a)(2) is called a “wobbler,” meaning it can be charged as either a felony or a misdemeanor.  It's really up to the D.A.  If someone has a bad record, the D.A.'s more likely to file it as a felony. 

If somebody doesn't have a record, they're more likely to file it as a misdemeanor.  If the injuries are really bad, if somebody is really badly injured in this instance, then the D.A. would be more likely to charge it as a felony.  Vice versa, if the injuries are very minor, the D.A. would be more likely to charge it as a misdemeanor. 

Assault with a Firearm PC 245(a)(3)

There's another charge that's related to “Assault with a firearm”, and that is 245(a)(3).  And, that's actually the same exact crime.  However, instead of just a regular firearm, it's a machine gun.  If someone is accused of committing an assault with a machine gun, the penalties are much higher, and that's always a felony. 

Manufacturing, Importing, Sales…Large Capacity Magazine PC 32310

The next Penal Code Section that I see a lot of times in court is 32310, and that is “Manufacturing, importing, keeping for sale, offering for sale, giving, loaning a large-capacity magazine.”  In order to be considered a large-capacity magazine in California, a magazine has to have more than 10 rounds.  Ten rounds and under is not considered a large-capacity magazine.  The D.A. can charge this under a variety of circumstances.  Number one, if somebody manufacturers or causes to be manufactured a large capacity magazine. 

Number two, if somebody imports into the State a large capacity magazine.  So, if somebody goes to Arizona, and they buy a large capacity magazine, and they bring it into California, that person would be guilty of this statute.

Another way that this statute can be violated is if somebody is offering to sell, or selling, or has it in their possession because they want to sell it, or giving it away, or loaning it, would get someone convicted of this statute.  If you'll notice when I was talking about manufacturing and importing and selling, or offering to sell, etc., buying was not specifically mentioned in the statute. 

What seems like most other attorneys aren't aware of is that buying or receiving a large capacity magazine was not made illegal until after January 1st, 2014.  So, I've had a number of cases where people were charged with this crime, and they were facing a lot of felonies.  However, I was able to show that they had purchased the large-capacity magazine before January 1st, 2014, and the charge was thrown out of court.  However, possessing a large capacity magazine will be illegal after July 1st, 2017. 

So, if you are in possession of a large-capacity magazine, I recommend that you speak with an attorney prior to July 1st, 2017.

CPC 3600 and 3605(a)

California Penal Code Section 3600 and 3605(a), I'm going to talk about both of these at the same time.  3600, it's “Illegal to manufacture, cause to be manufactured, import into the state, possess for sale, offer to sell, give, or loan, an assault weapon or a 50-caliber Browning machine gun.”  Again, it seems like, within the legal community, not a lot of people know that an AR is not an assault weapon. 

So, just owning an AR will not get you convicted of a 3600 or a 3605(a).  3605 is the possession part.  So, 3600 is “manufacturing, importing, selling, offering to sell”, but 3605 is “possessing”.  So, merely possessing an assault weapon is a crime in California, and as to what makes a weapon an assault weapon, again, I would highly recommend you speak with an attorney.  It's a very complicated field of law right here.  But, I will go over some of the basics.

Basically, if you pull the trigger, and it fires multiple rounds, that's an assault weapon.  If you pull the trigger, and it shoots one bullet, it's generally not an assault weapon.  An AR that has a pistol grip would be an assault weapon.  Anything that has a flash suppressor is an assault weapon.  Anything that has a fixed magazine capable of accepting more than 10 rounds is an assault weapon.  However, again, these are generalities. 

A rifle that has a bullet button generally is not an assault weapon.  So, a bullet button makes a rifle okay.  Again, it is interesting that California does not ban kits that allow a person to convert a lawful firearm into an assault weapon.  However, if you possess the kit with the intent to manufacture an assault weapon, it would be considered an attempted 3600, “Attempted manufacture of an assault weapon.”

CA Penal Code 32625(a) Possession of a Machine Gun

Penal Code Section 32625(a) is “Possession of a machine gun.”  So, it's basically the same thing as “Possession of an assault weapon,” except it's a machine gun.  Again, for the differences between an assault weapon and a machine gun, you really should consult an attorney.

CA PC Section 33410  Possession of a Silencer

California Penal Code Section 33410 is “Possession of a silencer.”  And, the elements of that crime are very simple.  Someone possessed a silencer.  So, just possession of a silencer is a crime in California.

California PC Section 247  Shooting at an Inhabited Dwelling or Vehicle

The last two code sections that I'm going to talk about the deal with shooting weapons.  Penal Code Section 246 is “Shooting at an inhabited dwelling or vehicle.”  So, shooting at an inhabited dwelling, a house, a tent, a business, or a motor vehicle, a car, a motorhome, those would all be considered either inhabited dwellings or motor vehicles. 

However, the shooting has to be willful and malicious.  So, somebody has to intend to have shot or do the things that caused the shooting, and it has to be done with malice.  So, if someone is cleaning their gun outside of a home, and their friends or their family, or their roommates, are in the home, and they accidentally shoot the gun at the house, because that wasn't done with malice, then that person would be innocent of this charge.

Discharge with Gross Negligence  Penal Code Section 246.3

Penal Code Section 246.3 is “Discharge with gross negligence.”  In some cities, it was common for people on New Year's to fire off guns at midnight.  Or, let's say, a professional sports team wins an event.  A lot of times, you see this crime charged where someone will go out in their yard, in the street, and fire a gun up in the air to celebrate. 

This crime is charged when the firearm is shot with gross negligence.  So, someone has to really be doing something really stupid.  There are two elements to this charge.  One is that the firearm has to be discharged, shot, with gross negligence.  Gross negligence is different than ordinary negligence. 

If you're driving down the street, and you're fiddling with your radio and you accidentally rear-end somebody with your car, then that's considered “negligence”.  However, if it's the height of traffic and you're driving 90 miles an hour down a street that's residential in a 25-mile-per-hour zone, and you're doing the same thing – fiddling with your radio – and you hit somebody, that would be considered “gross negligence.  Gross negligence is a heightened form of negligence.  Basically, someone has to be doing something really, really stupid.

The second part of this is, even if somebody shoots off a firearm with gross negligence, and they do so in the middle of a field where no one else is around for miles and miles, they wouldn't be convicted under this code section because the second element is that the shooting could have resulted in injury or death to someone. 

So, again, shooting off a gun on New Year's Eve is kind of a classical description of this charge.  It's in the middle of the city.  There are other people around outside celebrating, and if you're shooting off a firearm where the bullet's going to come down and hit someone, that could be considered gross negligence.  And, since there are other people around when the bullet comes down, it could definitely cause injury or death to someone.

I hope this description of California gun crimes has been helpful.  Again, for further information, please talk to a qualified attorney.

Thank you.

Joseph Tully, a Certified Criminal Law Specialist – a CA Criminal Lawyer with your Best Defense

TO CONNECT WITH ATTORNEY TULLY: [email protected] OR 925.229.9700