Carrying a Concealed Weapon

Background and Constitutional Law Developments

California, unlike many other states, severely restricts concealed carry permits. Police may issue conceal carry permits only to individuals who demonstrate “good cause” which is consists of more than a general concern for personal safety. The classic example of people who can show good cause are jewelers because they could potentially be carrying thousands of dollars of easily transferrable merchandise. California’s law was challenged in federal court, which upheld the law in Peruta v. County of San Diego, finding that the Second Amendment did not create a constitutional right to carry concealed weapons. The U.S. Supreme Court upheld the Peruta Decision when it declined the review.

California’s Conceal Carry Laws

            Definitions

Cal. Pen. Code Sec. 25400 makes it a crime to carry a concealed firearm:

• On your person;
• In a vehicle you’re driving; and
• In a vehicle in which you are an occupant.

The law defines firearm broadly, including, pistols, revolvers, or “any other firearm capable of being concealed upon the person.” Presumably, this would include sawed-off shotguns (which are also illegal), Uzis, and other small firearms. Before you ask, yes, it is also illegal to carry unloaded firearms on your person in a public place.

            Elements of the Crime

Every crime consists of “elements.” Elements are the various acts or omissions the district attorney must prove you did or didn’t do in order to charge and convict you with a crime successfully. If the district attorney fails to prove any element, the jury should acquit you. However, even if the jury doesn’t (which can happen), the judge can also rule the verdict invalid and acquit you since the prosecutor did not meet her burden under the law to convict you.

That being said, there are three elements to violation Section 25400:

• You concealed a weapon in your vehicle or on your person;
• You knew about the concealed weapon; and
• Moreover, the weapon was actually (or substantially) concealed.

What might immediately just at you is that you must “know” about the concealed weapon. How can someone not know they are carrying a gun? The purpose of this element is to highlight that this is a “specific” intent crime. You must always intend to commit a crime but there is a difference between knowing something is illegal and intentionally doing the act anyway in violation of the law and generally intending to commit criminal behavior that you may or may not know is illegal.

For example, if you commit homicide, the prosecutor does not need to prove that you had the specific intent to break the law by committing a homicide. The prosecutor need only prove that you intended to end the other person’s life – it doesn’t matter if you knew it was illegal or not.

Conversely, as applied to Section 25400, you must intend to commit this specific crime. This means that you must have intended to carry a concealed weapon on your person. Therefore, if you grab someone else’s bag by accident and get caught with a weapon that you didn’t know was in there – you cannot be charged with violation Section 25400 because you were unaware of the weapon on your person.

Definitions: Concealment

What does it mean to “conceal” a weapon? Concealment is broadly interpreted. It can mean a weapon that is fully hidden within a jacket or waistband. It can also include weapons which are partially concealed (i.e., sticking out of your pocket), even though the arresting officer can identify that a firearm is on your person.

Concealment excludes openly carrying a firearm. However, you could still be charged with a crime under Cal. Pen. Code Sec. 26350 if you openly carry a firearm in public. So, you avoid charges under Section 25400, but you’re still facing criminal penalties. Furthermore, subpart (b) of Section 25400 expressly excludes weapons carried in belt holsters (but, again, you could face charges under Section 26350).

Definitions: Weapon Capable of Being Concealed Upon a Person

What are the kinds of weapons that violate Section 25400? Cal. Pen. Code Sec. 16530(a) includes any device that is designed to be a weapon and which uses combustion or force of any explosion to expel projectiles, and which uses a barrel that is 16 inches or less (or can be interchanged with a barrel that is 16 inches or less). So, weapon modifications that can increase or decrease the barrel size of a weapon below the 16-inch threshold cannot be carried on your person.

            Definitions: Firearm

Similar to the definition above, a firearm is any device that uses explosive force to expel projectiles through a barrel. So, the law excludes model rockets (which use combustion to expel projectiles) because the rocket doesn’t leave a barrel. While the law has that general definition, it also includes an illustrative list of examples:

• Handguns;
• Revolvers;
• Pistols;
• Shotguns;
• Rifles; and

Yes, taser-guns also qualify as firearms and cannot be concealed carry. Not all tasers – just the tasers that expel the electrical barbs through barrels that are less than 12 inches in length. So, tasers that require contact and do not shoot projectiles are not considered firearms for purposes of Section 25400.

You should also note that the definition is expressly limited to devices that use explosive force or some other form of combustions; so airsoft, BB guns, and other guns that use air pressure or springs are not “firearms” for purposes of Section 25400.

Finally, you should note that the law does not require the device actually to work. The law only requires that the device is designed to shoot projectiles. Therefore, even if you conceal carry a gun that is unloaded and inoperable (for example, the firing pin is removed), it is still a violation of Section 25400, and you could theoretically be charged with a crime.

            Definition: carried on the person

The law prohibits you from carrying firearms on your person. However, what does that mean? Does it include guns in your waistband but exclude them from a backpack or purse? The law punishes anyone who physically possesses a firearm; so, it includes weapons in purses, bags, jackets, briefcases, rolled up newspapers, empty boxes of roses, or anything else you might think of to carry a weapon.

Exemptions to Section 25400

After getting through the law, you might have noticed that there isn’t an exception for people going to shooting ranges and you would be right. The law does expressly exempt certain individuals from Section 25400:

• Licensed firearm dealers;
• Members of the U.S. military;
• Peace offices (both active and honorably retired);
• Bank guards;
• Bank messengers;
• Licensed hunters and fishers who are transporting their weapons; and
• Members of shooting clubs and organizations who are transporting their weapons.

However, there are exceptions to these exemptions (yes, it can get very complicated). Without getting into too much detail, you are allowed to transport firearms if they are unloaded, stored in a secure lockbox, and are only used for certain activities (i.e., at a shooting range or hunting).

Possible Defenses to a Section 25400 Violation

There are two ways to defend against a criminal action: (1) you argue against one or more of the elements or (2) you raise an affirmative defense which, essentially, argues that even if the conduct occurred it was justified or necessary and therefore should not result in criminal penalties. A classic example is injuring or killing another individual in defense of someone else or yourself. This section will go over some examples of ways you could challenge a Section 25400 charge.

            Did Not Know

Recall in the previous section the prosecutor must prove that you knew about the concealed weapon. So, if you didn’t know you had the weapon – you can’t be charged. Maybe, someone put the firearm in your bag as a joke, or you accidentally grabbed the wrong bag on the way out the door. There are a number of ways you could accidentally end up with a firearm on your person and not know it.

            The Gun was Secured in a Locked Container

The law may make it seem like you can never transport your firearms out of your house unless you are going to the shooting range or hunting. However, California does provide exceptions (after all, if it didn’t, how would you get the gun from the gun store to your house after purchase?).

You don’t violate section 25400 if your firearm is in a locked container within your vehicle (but not the glovebox, and to be safe, it should be in the backseat) and you are legally entitled to possess or own the firearm. You are also not guilty if the gun is in the trunk of your vehicle. There is a lot of nuance about the exception, especially as it pertains to vehicles with separate trunks (i.e., sedans) and accessible trunks (i.e., SUVs and hatchbacks). When in doubt, store the firearm in a locked container in the trunk.

            You’re Licensed to Conceal Carry

If you receive a valid conceal carry permit, you can carry a weapon (obviously). However, the burden of proving that your license is on you, not the prosecutor. So, you could still be charged then the burden is on you to prove that your license is valid and you were acting in accordance with it.

            The Concealed Weapon was Within Your Business or Residence

You may carry concealed firearms in your home and in your business (not merely a place that you work, it has to be a business that you own). Also, before you start storing guns at your office, you may also want to check your lease because it is possible your landlord prohibits firearms on their commercial property.

In general, the law does not include people who work or live out of their cars with one big exception – taxi cab drivers may carry concealed weapons in their vehicle without violating Section 25400.

            Fourth Amendment Violations

Hardly anyone is ever arrested based solely on a concealed firearm charge. Concealed firearm charges usually arise out of a different legal situation which gave the officer permission to frisk or approaches a suspect. For example, if you were speeding, and the officer pulls you over; they usually ask if you have a weapon in the vehicle and if you say “yes” and the office retrieves it from a location that is not compliant (i.e., under your driver’s seat outside of a locked container), you could be charged with Section 25400.

The Fourth Amendment to the U.S. Constitution protects you from unreasonable searches and seizures which includes searches of your person or vehicle. The officer is not permitted to pat you down or search your vehicle without probable cause or a search warrant. Therefore, an officer that searches your vehicle without probable cause (i.e., a reason to think he will discover illegal activity), anything he discovers from that search is not admissible evidence and cannot be used against you in court.

            Police Misconduct

Finally, police misconduct is another possible defense. If you think the police officer violated your rights or behaved improperly, a defense attorney can file a Pitchess Motion on your behalf which unseals the officer’s record and allows you to determine if other individuals have lodged similar complaints against the officer which is the first step in attacking the credibility of the arresting officer.

            Self-Defense

Unlike the first four examples, which attack elements of the crime, and the fifth and sixth examples which attack the evidence and are more “technical,” raising self-defense is an affirmative defense as discussed earlier in this section. In this case, you did violate the law, but the violation was necessary because you reasonably believed (1) your life was in grave danger or (2) because you secured court-ordered restraining order due to another person’s threats and/or conduct. While defense (1) is a classic example; defense (2) is a limited more complicated, but a skilled defense attorney should be able to convince a judge or prosecutor that the charges are not warranted to extreme circumstances.

Penalties

Section 25400 is a “wobbler” which means it can be charged as a misdemeanor or felony – depending on the circumstances of the crime. In this case, you will be charged as a felony if (1) you were previously convicted of a misdemeanor crime against person or property or a narcotics crime or (2) the firearm was loaded, and you are not the registered owner of the loaded handgun. Yes, do not transport your friends’ firearms if they are loaded; they should be unloaded, in a sealed container, in your trunk.

You must be charged as a felony if any of the following are true:

• The firearm was stolen, and you know or should have known;
• You are a member of a street gang;
• You were previously convicted of a felony or another firearm-related charge; or
• You are prohibited from owning or possessing a firearm pursuant to Pen. Code Sec. 29800 (i.e., you were convicted of a serious felony such as murder, robbery, or kidnapping).

            Misdemeanor

If you are convicted of a misdemeanor, you could face up to $1,000 in fines and a year in county jail. You could be eligible for summary probation based on your criminal history, the nature of the crime, whether you intended to conceal carry, or other similar facts.

            Felony

If you are convicted of a felony, you face a $10,000 fine and either:

• Probation with one year in county jail;
• 16 months of jail
• Two years; or
• Three years.

Enhancements

Finally, California mandates specific minimum punishments for individuals with a prior criminal history. If you were previously convicted of any felony or misdemeanor firearm charge, you must serve at least three months in county jail. If you were previously convicted of a serious crime involving a firearm such as assault with a deadly weapon, brandishing a weapon, or shooting at a car or dwelling house, you must serve between three and six months in county jail.

Help Finding a Criminal Defense Lawyer Near Me

If you need help finding a legal professional to defend you against a charge of violating Section 25400 “conceal carry” or other criminal defense issues near you, contact our Los Angeles Criminal Lawyer at 818-484-1100 for assistance. Leah Legal Criminal Defense is a full-service criminal defense law firm that defends clients against charges of assault and battery, domestic violence, child abduction and neglect, driving under the influence, drug possession, fraud, and will assist you with post-conviction matters such as expungement and record sealing. Leah represents residents throughout Los Angeles County including the cities of Los Angeles, Van Nuys, East Hollywood, Montebello, Torrance, Santa Monica, Long Beach, Culver City, the City of Industry, San Fernando, Burbank, Calabasas and throughout Southern California. If you or a loved needs representation, call us today!