In California, carrying a loaded firearm and not being the registered owner is charged under Penal Code 25850(c)(6) pc[1] making it unlawful to possess a firearm and not be its registered owner. Firearm offenses are treated very seriously because law enforcement and prosecutors aim to combat the illegal distribution of stolen firearms.
This section is relatively the same as PC 25850(a) but adds that the possessor is not the registered owner by the California Department of Justice. Although the Second Amendment of the United States Constitution allows individuals to own and possess firearms. However, there are several exceptions that unfortunately could lead to criminal prosecution, even for first-time offenders.
Table of Contents
What does the Prosecution Need to Prove?
To prove someone is guilty of PC 25850(c)(6), the prosecutor must prove the following elements beyond a reasonable doubt:
- Defendant carried a loaded firearm in his or her vehicle or person;
- Defendant knew they were carrying a firearm;
- Defendant was in a public place or public street;
- Defendant is not the registered owner under the Department of Justice.[2]
The firearm need not be in working order but only that the firearm was designed to shoot and appeared to be in working order. Additionally, a firearm is loaded when there is an unexpended cartridge or shell in its firing chamber or magazine clip.
Punishment & Sentencing
Penal code 25850(c)(6) pc is a wobbler, making it punishable as a misdemeanor or felony. A felony conviction carries 16 months, 2, or 3 years in the county jail. A misdemeanor conviction carries up to 1 year in the county jail.
Other conviction consequences may include:
- A felony conviction is arguably a crime involving moral turpitude[3]
- Denial of an occupational or professional license
- Adverse immigration consequences for non-U.S. citizens
- A felony carries a lifetime restriction from owning or possessing a firearm
A person may be eligible to reduce their felony to a misdemeanor after the completion of their probation period. Additionally, obtaining an expungement is also a common post-conviction remedy sought. However, an expungement does not restore firearm rights.
Legal Defenses to PC 25850(c)(6)
Knowledge
A defendant cannot be guilty of unlawfully possessing a firearm if they did not know of its presence. For instance, a colleague may have kept a firearm inside the drawer of your guest room without your knowledge.
Possession
Actual possession means you exercised dominion and control over the substance. However, constructive possession is fertile ground for litigation. Usually, a firearm is found in a car, a residence, or a public place within the apparent control of many people.
Public Place
Having possession of the firearm in a public place[4] is an essential element of the charge. Therefore, having possession of a firearm on private property is a defense. Moreover, the prosecutor must prove that you possessed the firearm in an incorporated city or a prohibited area of unincorporated territory.[5]
Mere Presence
Mere presence at the scene of a crime, without more, is not sufficient for a conviction. Accordingly, merely being present where an illegal firearm is present makes you nothing more than a witness.
Constitutional Challenge
You may have a constitutional challenge if law enforcement violated your Fourth Amendment right. Moreover, gun charges usually have detention and search warrant issues that could lead to suppressing the firearm altogether. If the court suppresses the weapon, then more likely than not, the prosecutor will be unable to proceed with their case.
What are Examples of PC 25850(c)(6)?
- Dan was on his motorcycle when he was stopped by a police officer. The police officer detained Dan and eventually searched a locked compartment. The officer discovered a handgun that was registered to a friend of Dan. Here, Dan can argue that there was no justification for his detention, and the search of the locked compartment on his motorcycle was done without probable cause or a search warrant.
- Dan walking down the street when he overheard gunshots. He fell to the ground to take cover. He noticed a gun near him and he picked it up to defend himself in the event there are more gunshots. A police officer sees Dan carrying the gun and immediately arrests him for PC 25850(c)(6). In Dan’s defense, he will contend that he merely had momentary possession for the sole purpose of defending himself from death or great bodily injury.
- John stays overnight at Bob’s house. John places his gun in Bob’s guest room drawer, but he later forgets about it. Subsequently, the police raid Bob’s home and discover the firearm in the drawer. Here, Bob will argue that he did not have knowledge of the firearms’ presence because it was placed in the drawer without his knowledge.
- Peter was detained on his property porch. His property is surrounded by a fence approximately four feet tall, with access only through a date. The officer searched Peter and discovered a gun concealed in his waistband. Here, Peter will claim that he did not possess the firearm in a public place because his property was surrounded by a fence, which provided a barrier and challenge to access.[6]
Contact Us to Schedule a Free Consultation
If you have been arrested, charged, or accused of carrying a firearm and not the registered owner under PC 25850(c)(6), then contact the Law Offices of John D. Rogers to schedule a free case evaluation with an experiencedOrange County criminal defense attorney. Early intervention by an experienced lawyer can mean the difference between spending time in jail or having your case rejected entirely from prosecution.
Attorney John D. Rogers is a Board-Certified specialist in criminal law. A prestigious distinction that less than 2% of California criminal defense lawyers have achieved. He has unmatched success in firearm cases, especially when his clients are faced with a “must-win” dilemma. He aims to dismiss the case or obtain an acquittal at trial.
Legal Footnotes:
[1] Penal Code 25850(c)(6): “Carrying a loaded firearm in violation of this section is punishable, as follows: Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.”
[2] See CALCRIM No. 2545.
[3] In People v. Aguilar (2016) 245 Cal.App.4th 1010, the Court held that, as a matter of first impression, a conviction for carrying a concealed weapon in a vehicle is a crime of moral turpitude that can be used to impeach a defendant.
[4] See People v. Yarbrough (2008) Cal.App.4th 303 where the trial court properly instructed the jury that a private driveway could still be a “public place,” if it was reasonably accessible to the public without barrier. Moreover, a “public place” is not limited to publicly owned property.
[5] See People v. Knight (2004) 121 Cal.App.4th 1568 where the prosecutor failed to establish that the place where the defendant possessed the firearm was in an incorporated city or prohibited area of unincorporated territory.
[6] See People v. Strider (2009) 177 Cal.App.4th 1393 holding that a fenced yard and porch area were not public a public place because, the four foot fence, provided a barrier and challenge for access.
