Under California Penal Code Section 12031, it is illegal to carry a loaded firearm on your person or in a motor vehicle while on a public street or in any public place in an incorporated area or a prohibited area of any incorporated or unincorporated area.
To be convicted of this offense, your conduct and knowledge must fit within the elements of the crime and the definitions of certain terms.
A bullet in the chamber or an unexpended cartridge in a case that holds a charge of powder and a bullet or shot, or which is included in the firing chamber, clip or magazine is considered loaded. Your weapon can lack certain parts that would make it impossible to fire a bullet as is, but it still considered a loaded firearm for purposes of the law.
A firearm is also defined as a device from which a projectile can be expelled through a barrel by the force of explosion or other form of combustion. Examples of firearms within the definition of PC 12031, include:
- Shotguns and rifles
A BB gun or pellet gun is not considered a firearm.
Requirement of a Prohibited Area in a Public Place
Anyplace where the public is invited or which is accessible to them and is open to general use is a public place. A prohibited area is a place where discharge of a firearm is not permitted. These include schools and public buildings.
There are individuals who are exempt from prosecution under this law including:
- Persons with a permit to carry a concealed weapon
- Authorized persons at a target range
- Person who lawfully possess a firearm and who are engaged in lawfully arresting someone or attempting to do so
- Peace officers including those retired who are carrying out official duties
- Military members engaged in the performance of their duties
- Armored vehicle guards
- Retired federal agents who carried firearms while on active duty
- Harbor patrol police officers who have completed an approved training program
- Animal control agents or zookeepers who have completed an approved training program
- Security guards who received special training
- Private investigators who have received special training
- Hunters in a time and place that is permitted by that municipality
Defenses to Carrying a Loaded Weapon
There are defenses to carrying a loaded firearm:
- The firearm was not loaded
If the bullet or ammunition is in a separate storage area and not in a firing position, it is not considered loaded. Unless you can demonstrate a legitimate belief that you thought the firearm was not loaded; i.e., it has always been unloaded and a specific person put a bullet in the chamber, then your statement “I didn’t know it was loaded,” is no defense.
- You were unaware you had a firearm
This may be difficult to prove unless you can show that you were driving someone else’s car that had a firearm in the trunk or glove compartment or you were carrying a bag belonging to someone else.
- You were not in a public place or prohibited area
The prosecution must prove that you carried a firearm in a public place or street in an incorporated area or in a prohibited area of an unincorporated area.
- Business and homeowners
Business owners and homeowners or those in a temporary home may have a loaded firearm in their place of business or home if they are lawfully in possession of the firearm since they are not in a public place.
Penalties for Carrying a Loaded Weapon
Carrying a loaded firearm is usually charged as a misdemeanor with penalties of up to one year in county jail and a fine up to $1,000.
It is a “wobbler,” however, in that under certain circumstances, you can face felony charges. These circumstances include the following:
- You were not the registered owner of the firearm
- You have a prior criminal conviction for a dangerous or narcotic drug
- You have a prior misdemeanor criminal conviction that involved an act of violence against a person or property
- You have a previous felony conviction
- You knew the firearm was stolen
- You were an active member or participant of a criminal street gang
- You have a prior conviction of assault with a deadly weapon, shooting at an inhabited dwelling or car or brandishing a weapon
A felony conviction carries incarceration of up to 16 months, 2 or 3 years in state prison and a fine up to $10,000. You also lose the right to buy, possess or own a firearm.
It may be a misdemeanor or felony if you keep a loaded firearm within any premises and a child under 18 obtains and uses it, which results in an injury or fatality, unless you stored the weapon in a locked container or locked the firearm with a locking device.
For non-citizens, carrying a loaded weapon could have severe consequences. It is possible in many cases to have these charges reduced or dismissed but if not, you face potential deportation since this can be construed as a crime of moral turpitude.
Call the Law Offices of Ramiro J. Lluis
Any gun crime conviction can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with a gun crime, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.