After obtaining a firearm, you are responsible for upholding regulations and restrictions prohibiting carrying it in specific locations. Therefore, you may face criminal charges for violating these regulations by carrying a loaded gun in the specified areas. While arrests and convictions are common, you may become a victim of wrongful arrest, based on misinformation or mistakes of fact that lead the police officers to suspect you of carrying a loaded firearm. Subsequently, you require the services of a criminal defense attorney who can help you fight the charges and avoid facing severe penalties for the offense.
Moreover, an experienced criminal defense attorney will take on your case even when there is overwhelming evidence showing that you violated laws prohibiting carrying a firearm. With adequate research and preparation, your attorney should establish persuasive legal defenses that will challenge the prosecutor's case and give a better perspective on the matter. At The Los Angeles Criminal Defense Attorney, you will receive excellent legal services from our highly experienced team. We have worked with many clients in Los Angeles, California, by taking on their criminal cases to fight for a fair and reasonable case outcome. Our personalized services also help create unique relationships with you as we focus on your individual needs.
Defining the Offense of Carrying a Loaded Firearm
Usually, you may define carrying a loaded firearm as having it around you as you move about in different areas. While the non-legal definition is valid, specific requirements stipulated in the law must be present for an offense to fit the legal description. Under section 25850 of the California Penal Code, you will be guilty of the crime by carrying a loaded firearm on your body or inside your car and accessing a public area.
It is necessary to define some of the terms used in the statutory definition, as they can have multiple interpretations. Thus, the prosecutor handling your case must provide a relevant description when presenting a lawsuit against you, the defendant. Upon arrest and charging, you will receive a date for commencing the trial, whereby the prosecutor will argue a claim against you and fit your actions in the legal definition provided in the Penal code.
To do this, the prosecutor must prove that you engaged in all the listed elements, and are therefore guilty of the offense. Since the prosecutor holds the burden of proof in a criminal case, it will be essential for him/her to prove your involvement in each element. A failure to prove your indulgence in each factor beyond a reasonable doubt will translate to a case dismissal, as there will be insufficient proof presented as required by a criminal case standard.
The elements for the prosecutor to prove are:
You Carried a Loaded Firearm
It is essential to prove that you carried a loaded firearm with you, whether you had it in a backpack, pocket, or inside your car. The crucial point that the prosecutor aims to demonstrate is that you are guilty of the physical commission of the crime that involves action.
On top of that, the prosecutor will have to define specific terms to ensure that you fit the criteria. In this case, a firearm refers to all devices that act as weapons and shoot projectiles after an explosive launch it off the barrel. Thus, if the device confiscated upon arrest shoots pellets or rubber bullets, it will not fit the description, meaning that you may not be eligible to face the criminal charges.
The term loaded is also essential to define, as it distinguishes this offense from other related ones listed in the Penal code. Thus, a loaded firearm must have an unexpended shell or cartridge. The unexpended cartridge should be held in the firing chamber that attaches to the gun through a clip or magazine.
Since proving that the firearm's nature in question fits the description, the prosecutor may introduce a firearm expert as a witness. The expert will serve to affirm the findings prepared by the investigation officers concerning the gun. The actual firearm will also be present in court as a primary exhibit that the judge or jury will assess to understand what the prosecutor and firearm experts are talking about.
Apart from providing evidence on the firearm's nature, the prosecutor will also rely on information sources like police reports stating where the officers retrieved your loaded gun after apprehending you. In court, the prosecutor only needs to read the police report to the judge and present the documents for analysis, to allow the evidence to proceed. If the judge accepts the proof, the prosecution team will have shown that you carried the firearm.
Additionally, if witnesses observed you carrying the gun by placing it in your pockets or waist belt, they may appear and testify against you. The information they give will mainly corroborate the police reports to strengthen the prosecutor’s claims further.
Photographs or video footage of you retrieving the loaded firearm from your car or on your body are also admissible as evidential sources to prove the crime element. However, even if such proof is available, the prosecutor will have to make additional presentations. For example, he/she must validate your identity by comparing the image of the person in the footage and your current image during the trial. If the faces match, the evidence is likely to be accepted and used against you.
If you made efforts to disguise or hide the loaded firearm, it is also up to the prosecutor to ensure that his/her proof shows your unlawful actions. For example, if you hid a gun by strategically holding a folded coat, the prosecutor should show how you carried it to a public place. He/she will often rely on witnesses and surveillance footage to prove that you had the gun and wanted it to remain under the radar.
You Knew You had Carried the Loaded Firearm
Showing that you carried the firearm is insufficient proof to convict you of the offense, as the prosecutor must also prove your criminal mental state. Here, providing information on your knowledge will show that you knew what you were doing despite it being unlawful. Consequently, you are guilty of intentionally breaking the law, which automatically warrants legal penalties.
The prosecutor depends on circumstances surrounding your case to show that you knew of your wrongful actions. The reliance on circumstantial evidence arises from the difficulty in proving a person's mental state, as it is not direct. Nevertheless, using a person's conduct to study his/her knowledge or intention is a strategy that has worked for multiple criminal cases.
Hence, the prosecutor will analyze the investigation officers' information who gathers your behavioral patterns when you carry the gun into a public place. For example, suppose you appeared tense and more aware of your surroundings than usual. In that case, the prosecutor can shift attention to such behavior and create reasonable grounds to suspect you of your knowledge.
However, a criminal case requires proof beyond a reasonable doubt, so showing your behavior change will not be enough proof for the element. Therefore, the prosecutor must show actual activities that you engaged in to prove that you were aware of carrying a loaded gun. An example of reliable evidence is when you avoid going through a security check when entering a public area like a mall because you know your firearm is detectable.
The sources of proof will vary depending on the case facts, and the prosecutor must establish clear points before moving on to the next point. Sometimes, evidence of your knowledge of carrying a loaded gun may come from your direct words uttered to another person. If you were with someone else headed to a public area, you might have stated that you had a loaded firearm on you and that you had to remain careful not to be caught. Retrieving such information would require the prosecutor to examine your acquaintance, and including him/her as a witness.
You Carried the Loaded Firearm to a Public Area
The location you accessed while carrying a loaded firearm also plays a significant role in determining whether you will face conviction. Since section 25850 of the Penal code exclusively states that the offense applies to carry the firearm to any public place, the prosecutor must prove that your area of arrest was general.
A public place is any location open for everyday use to any person interested in using it. Therefore, there are no restrictions on accessing public areas, including age restrictions or payment of entry fees. For example, an amusement park is a public place because it is open to all general public members. Additionally, a building that offers entertainment or serves food and drink also qualifies as a public place. Thus, malls and hotels are familiar public places, based on their access to the general public's members.
Streets, roads, and pavements are also public areas, meaning you could face arrest for carrying a loaded gun in such locations. It is irrelevant that you had the weapon on your way to another site, as long as the arresting officers apprehended you on the streets or road. A vehicle can also be a public place in this case, primarily if you park it in an open parking spot. Here, you will be answerable to criminal charges even if you did not exit the car with the firearm, because the vehicle is still accessible to the general public passing by.
The prosecutor will use several sources of information to show that you carried the firearm in a public area. Typically, it is not difficult to provide evidence for a criminal element, as it is a strict liability factor. When proving a rigid liability element, the prosecutor only needs to show that you were in a public place with a loaded gun. Thus, photographs, police reports, or surveillance footage are enough to establish your position.
Defenses for Charges of Carrying a Loaded Firearm
As the trial continues, your criminal defense lawyer will have a chance to present defenses or counter-arguments. The process follows the prosecutor's presentations, meaning that the lawyer will either have to disprove the prosecutor's information or raise important issues that provide reasonable doubt.
When presenting defenses, a criminal lawyer should aim to discredit all accounts provided by the prosecutor. While disproving the prosecutor's information may be tasking, casting reasonable doubt is enough to delay or avert a conviction. Your criminal defense lawyer also gets to cross-examine the prosecutor's witnesses, which is an essential process that can bring out inconsistencies in their accounts.
Once a cross-examination reveals false information submitted by the prosecutor's witness, his/her accounts will be ruled out as substantial evidence. Furthermore, suppose the witness statement was an essential source of evidence for an element of the crime. In that case, there will be reasonable doubt cast on the information, meaning you are unlikely to face a criminal conviction.
Your criminal defense lawyer should work hard to source relevant authorities on the defenses presented. This way, he/she will avoid redundancy and unclear arguments that could limit the judge's leniency to you. Some defenses you can raise are:
You Belong to a Group Exempted by the Law
If you have a unique legal mandate to carry a loaded firearm, you are not eligible for arrest, nor should you face a criminal trial. Therefore, it would be unlawful for the arresting officers to apprehend you, and for the matter to proceed to a court trial. If you raise a defense to show that you had legal backing for carrying the firearm, your criminal case will be dismissed. The members allowed to carry loaded firearms even in public areas are:
- Members of the U.S military
- Police officers
- People with concealed carry permits
- Recreational shooters with registered licenses
However, it would be negligent for police officers to arrest you if you had a legal backing to carry a firearm unless you did not have the relevant certifications at the time of the arrest. Additionally, you may have to explain why you did not identify yourself before the arrest, especially if you are a U.S military member or an undercover police officer.
Some of the counter-arguments your criminal defense lawyer will present include stating that you exercised your right to remain quiet during an arrest. Additionally, the defense will work if you, as a particular member excluded from criminal liability, have not yet received official documentation, allowing you to carry the loaded firearm despite registering for it. For example, if you have an expired concealed permit to carry a gun, but have not yet received a renewed copy of the license, you can use the defense to justify your actions.
Similarly, as a recreational shooter, you may have forgotten your firearm permit at home before entering a public area while carrying the loaded gun. If your lawyer argues tactfully, the judge may accept your defense and reduce the charges you are to face significantly.
You Did Not Know that You Carried a Firearm
Carrying a firearm without knowing is common, mostly if it was inside a vehicle. Therefore, your lawyer can present the defense by backing it with practical information that reveals your lack of knowledge in carrying the firearm. For example, if you lent your car to a friend or family member who wanted to go for a recreational shooting session, he/she may accidentally leave the firearm in your vehicle.
Consequently, once you retrieve your car, you will be unaware of carrying a loaded firearm as you enter a public place, especially if the firearm owner has not alerted you about it. In such cases, you are innocent of the offense, as long as your attorney presents facts to show your non-involvement in committing the crime.
Conversely, you may borrow a vehicle from someone without knowing that he/she is a firearm owner. Subsequently, you could face arrest for going into a public place with the firearm inside the vehicle despite not having prior knowledge about it. Thus, the defense applies to such cases as well and can absolve you of all liability.
The Firearm was Not Loaded
Sometimes, the arresting officers may mistake when examining your gun, leading to inaccurate records presented in court. Proving that the gun was unloaded at the time of arrest may be challenging, mainly because the police confiscate the weapon for use as a court exhibit. Therefore, your lawyer should establish an elaborate plan to prove the defense, despite possible attempts by officers to alter the display and load it before its presentation in court.
You Experienced Police Misconduct
In most cases, your lawyer will include police misconduct when proving that the gun was unloaded during your arrest. However, the misconduct also qualifies as a separate defense when there were multiple factors involved. For example, apart from trying to change the evidence to fit the prosecutor's case, police misconduct may also include coercing you to admit to committing the crime. The duress or coercion arises when third parties with ulterior motives against you collude with the police.
Alternatively, police misconduct may also include changing police statements taken after your arrest to include false accusations. There have also been cases of planting evidence on innocent persons, leading to an unfair trial process.
It is important to remember that raising the defense involves placing severe allegations for law enforcement officers. Such accusations may lead to loss of jobs for the officers involved and dismissal from the police force. Therefore, you and your criminal defense lawyer must provide convincing evidence that shows the officers' explicit misconduct.
Penalties for Carrying a Loaded Firearm
If the defenses presented by your lawyer are not enough to avert a conviction, the judge will proceed to the sentencing stage. You will receive punishment for the crime based on the case facts and other relevant considerations during the sentencing proceedings.
Usually, carrying a loaded firearm is a misdemeanor in California that includes serving a jail sentence in a county jail for up to one year. Additionally, the judge may impose a $1000 maximum fine or both jail and fine penalties.
If you violated section 25850 of the Penal code and proceeded to engage in additional criminal activities, you qualify for a mandatory jail sentence that lasts for three months. The other offenses that attract the compulsory jail sentence include:
- Assaulting crime victims with the loaded firearm, contrary to PC 254a1
- Shooting an inhabited car or dwelling house in violation of PC 246
- Brandishing the loaded gun, contrary to PC section 417
Despite the crime classification as a misdemeanor, several aggravating factors will attract more severe consequences, leading to felony or wobbler crime charges.
Aggravating Factors for the Crime
If you engage in the aggravating elements, you will receive additional penalties, including facing felony charges. The aggravating factors are:
Having a Past Criminal Record
As a convicted felon, you cannot own, possess, or carry a firearm in California. Therefore, having the loaded gun in a public area aggravates your case, as you will have violated several restrictions.
Stealing the Firearm
If investigations show that you acquired the firearm unlawfully by stealing it before carrying it to a public area, you will also face additional penalties. On top of charges under section 25850, you may also face separate criminal charges for theft, breaking, or robbery, based on how you obtained the firearm.
You Participated in Gang Activities
Involvement in street gang violence is a significant aggravating factor, as you are likely to cause harm or injury to many crime victims. Moreover, most defendants involved in street gang activities also commit other unlawful actions like drug trafficking, carjacking, and kidnapping. Hence, if such information surfaces during the trial, you will receive sentence enhancements.
The consequences of aggravating factors lead to a straight felony charge with penalties like three years in prison or fines of up to $10,000. You may also face regular felony charges under a wobbler crime, leading to up to three years in jail or a payment of $1000 in fines.
Find a Criminal Defense Lawyer Near Me
Dealing with a criminal charge is often challenging, mainly because of the numerous factors you must consider to secure your release. Hence, working with an experienced criminal attorney will give you a more comfortable experience, as he/she will guide you on what to expect. At The Los Angeles Criminal Defense Attorney, we dedicate ourselves to providing exceptional legal services to all our Los Angeles, California clients. We are happy to take on your case and provide the best legal support we can. To get in touch, call us today at 310-564-2605.