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California has some of the strictest gun laws in the country. One is the prohibition against carrying a concealed weapon under Penal Code Section 25400. While you can possess a number of guns in your home and be able to carry some on your person or in your vehicle under certain condition, there are strict provisions you must follow or you are in violation of the law.
To be convicted under PC 25400, the DA must prove the following elements of the offense by the standard of proof beyond a reasonable doubt:
- You concealed or hid a firearm in your vehicle or on your person, and,
- You knew or were aware that the firearm was in the vehicle or on your person, and,
- The firearm was substantially concealed
These elements are all irrelevant if you possessed a permit or license to carry a concealed weapon.
Element of Concealment
The definition of “concealment” is self-evident. It is the opposite of being open or in plain view. For example, you cannot hide a gun in your car or in your clothing. Though you may think that having a gun exposed or in plain view is legal at least within the context of this code section, it is unlawful pursuant to PC 26350, which prohibits carrying an unloaded firearm in plain or open view outside of a vehicle in a public place and PC 25850 that prohibits the carrying of a loaded firearm.
If the gun is even partially hidden or concealed, it is concealed within the definition of this code section and unlawful. An outline of a gun seen pressed against you is also considered to be “concealed.”
Element of a Firearm
There are certain weapons capable of being concealed on your person that are targets of this code section. These are guns such as revolvers, pistols or any other handguns. A firearm is defined under Penal Code 16520 as any device to be used as a gun from which a projectile can be expelled by a force of combustion or explosion. This does not include BB or pellet guns but does include Tasers and flare guns or any other device containing an incendiary or explosive material.
A concealed firearm for purposes of this code section also includes a gun that is unloaded or even one that is not capable of being fired.
Element of Being on Your Person
The phrase “being on your person” may seem awkward but it carries a definite legal meaning. If the weapon is in your pocket or jacket or hidden in your waistband, it is obviously on you, but “being on your person” extends to your possession of it. If the gun is in your briefcase, bag, package, violin case or purse, it is “on your person.”
Element of Knowledge of Presence of Weapon
The DA has to prove that you had intent to carry a concealed weapon or that you knew the weapon was in your possession. The element of knowledge of the existence of the weapon is essential since if you can establish that you were unaware the gun was on your person or in your vehicle, then you violated no law
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If you have been charged under PC 25400 for carrying a concealed weapon, there are a number of defenses available to you:
Violation of 4th Amendment for Unlawful Search and Seizure
A police officer can only search you, your home or business pursuant to a valid search warrant. The officer can also search you and these areas if you consent or if there exists probable cause. For instance police cannot randomly stop you on the street and search you though they will allege probable cause. But if you are stopped for a traffic violation and are otherwise cooperative by producing your identification and license, the officer cannot search your car unless you give your consent or there is a valid reason to search that amounts to probable cause. Probable cause is defined as facts or evidence that would lead a reasonable person to believe you had committed a crime.
If you are validly arrested, the officers may search your person and the immediate area for weapons but this does not allow them to go to your home and car to search it absent a search warrant.
Even if a valid search warrant is issued, the officers can only search in those areas specifically designated. If a weapon is found under circumstances that violated your right to be secure from illegal or unreasonable searches and seizure under the 4th Amendment to the US Constitution, it is not admissible in court.
Lack of Knowledge
You may only be convicted if the DA proves you knew the weapon was in your possession. If someone gave you a package or box and you were unaware of its contents or you picked up the wrong luggage or package that contained a weapon, then this element is absent.
The Weapon was in a Locked Container or in Your Car Trunk
If the weapon was securely locked in a container or was found in your vehicle trunk, you are not in violation of California Penal Code 25400. If it is in your locked glove box, it has to be in a separate locked container. You must of course have been in lawful possession of the firearm as well.
Possession of a Permit or License to Carry a Concealed Weapon
Under PC 26150, having a permit or license to carry a concealed weapon does not generally expose you to violations under this law so long as you possess and produce your valid license. But a business or property owner may legally deny you entry if you are carrying a weapon despite having a license to do so. Your failure to leave may constitute trespassing or even other offenses.
Possession in Your Home or Business
You are allowed to possess and conceal weapons at your residence or business provided you own it, and you are otherwise permitted to own or possess the weapons or firearms. You may not keep it in your vehicle unless you are cab driver.
The Firearm was carried in Self-Defense
To avail yourself of self-defense, you must demonstrate that specific threats were made against you that placed you in grave danger and that a restraining order was issued against the threatening person. And despite the protective order, you felt it was necessary for your safety and life that you carry a weapon on yourself or in your vehicle.
Police do break the law to justify arresting someone whom they suspect with little evidence is committing or about to commit a crime or because they feel the defendant was guilty of something. There are many examples of police planting evidence such as weapons in a car or who claim that a weapon was found on the defendant. In other cases, police coerce confessions from an individual either from a physical beating or by emotionally wearing down the defendant to where any statement put in front of them will be signed.
You are Exempt from the Law
Certain individuals are exempt from the general prohibition against carrying a concealed weapon:
- Licensed hunters carrying weapons for the purpose of hunting
- Licensed firearms dealers
- Members of a shooting club on club premises
- Peace officers
- Bank guards
- Federal agents
- Security officers
- Military personnel
This right is not unconditional. For example, if you are a bank guard or security officer, you cannot carry a concealed weapon during non-working hours.
If Convicted as a Misdemeanor
Carrying a concealed weapon is generally charged as a misdemeanor. You would face:
Unless you have a criminal history that included violence, were uncooperative with law enforcement at the time of your arrest, or there was evidence you intended to use the weapon, you will generally serve little to no jail time.
If Convicted as a Felony
Under certain aggravating circumstances, violation of PC 25400 will always be charged as a felony. These conditions include:
- You are a convicted felon
- You had no license or permit for the weapon
- The weapon was stolen and you knew or should have known it was stolen
- You have a previous firearm conviction
- You were otherwise prohibited from possessing a weapon or firearm under Penal codeC 29900 for having committed or for attempting to commit a violent offense
A felony violation carries the following:
- 16 months, 2 or 3 years in county jail
- Or, probation with up to one year in county jail
- And/or a fine of up to $10,000
If you have a prior felony conviction, the court will impose a mandatory minimum jail sentence of 3 months in county jail.
You also face an increased mandatory minimum jail sentence of 3 to 6 months in jail if you were previously convicted of:
- Assault with a deadly weapon—PC 245(a)(1)
- Shooting at an inhabited dwelling—PC 246
- Brandishing a weapon—PC 417
Also, carrying a concealed weapon is a “wobbler” so that the DA has the discretion to charge you with either a felony or a misdemeanor provided the following circumstances are present:
- You have a prior misdemeanor conviction for a property crime or offense against a person or for a narcotics offense, OR
- The firearm is loaded or immediately capable of being loaded and,
- The firearm is not registered to you by the Department of Justice
A misdemeanor conviction carries up to one year in county jail and/or a fine up to $1000. A felony conviction is the same as indicated above.
A conviction under PC 25400, especially as a felony, exposes you to deportation proceedings if you are not a US citizen. If you are not deported, your chances of becoming a citizen or naturalized are diminished.
Under PC 1203.4, you may petition the court to expunge convictions for misdemeanors and a number of felony convictions. Under circumstances where defendants are charged with a misdemeanor under PC 25400, then the conviction is eligible for expungement. Since a felony conviction under PC 25400 does not require a defendant to serve time in state prison, expungement of the felony conviction should be available as well.
An expungement does not result in the complete abolition of your conviction record. It remains accessible to public schools representatives and other public employees and to law enforcement and the court sentence enhancement should you commit a subsequent felony offense. Generally, no member of the general public, including dating partners, neighbors, private employers and landlords can view your record of conviction when performing a criminal background check.
Expungement enables you to state on any private employment or rental application, even under oath, that you were never convicted of a crime. You do have to disclose your felony conviction, along with the fact that it was expunged, under the following circumstances:
- when applying for a professional license or for public sector employment
- When running for public office
- If applying for a license or contract with the State Lottery Commission
- If applying for the military or a law enforcement position—a felony expungement will render you ineligible
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