Carrying A Concealed Firearm

The prosecutor can charge you with a misdemeanor, straight felony, or a “Wobbler” (California Penal Code section 17(b)) for carrying a concealed firearm. The nature of your charges varies depending on the unique factors of your case and your own criminal history:

Misdemeanor Penalties

In the absence of aggravating circumstances, you will face a misdemeanor P.C. § 25400 charge. As a misdemeanor, the crime is punishable by up to a year in county jail and/or a fine of up to $1,000.

Sometimes, you can escape spending time in jail by serving misdemeanor probation (a.k.a. summary or informal probation). Often, the court offers probation to first-time offenders or defendants with no history of violence.

See Mental Health Diversion (California Penal Code section 1001.36)Informal Diversion (California Penal Code section 1001.94); and Judicial Diversion (Court-Initiated Diversion) (California Penal Code section 1001.95).

Straight Felony Penalties

In California, a straight felony is a crime that prosecutors cannot reduce to a misdemeanor under any circumstances. Straight felony charges under this statute arise if:

• You are a street gang member.

See “Carrying Firearm: Active Participant in Criminal Street Gang — Pen. Code §§ 25400(c)(3), 25850(c)(3)”: CALCRIM Number 2542.

See also Gang Enhancement (California Penal Code 186.22).

• The firearm in question was stolen or illegally

See also “Illegal Possession, etc., of Weapon”: CALCRIM Number 2500;“Carrying Firearm: Stolen Firearm — Pen. Code, §§ 25400(c)(2), 25850(c)(2)”: CALCRIM Number 2541; and“Carrying Firearm: Not in Lawful Possession — Pen. Code §§ 25400(c)(4), 25850(c)(4)”: CALCRIM Number 2543.

• You are prohibited from owning a gun after a felony conviction.

See Felon in Possession of a Firearm (California Penal Code section 29800).See also “Possession of Firearm by Person Prohibited Due to Conviction – No Stipulation to Conviction — Pen. Code §§ 29800, 29805, 29820, 29900”: CALCRIM Number 2510; and

CALCRIM Number 2512 (“Possession of Firearm by Person Prohibited by Court Order — Pen. Code §§ 29815, 29825”): CALCRIM Number 2512.

• You have a felony firearm conviction on your record.

A conviction for a straight felony attracts the following punishment:

• A prison sentence of sixteen months, two years, or three years; and
• Fines amounting to $10,000.

In addition to prison time and fines, a conviction for a P.C. § 25400 felony violation could have serious immigration consequences. As an immigrant, carrying a concealed firearm in California poses a risk of deportation.

Wobbler Penalties

If you have a prior conviction for a misdemeanor property or drug crime, a subsequent arrest for a concealed weapon can be charged as a misdemeanor or a felony pursuant to California Penal Code section 17(b). Additionally, one of these types of charges arise when the weapon is discovered in your vehicle.

The offense will be punished by a maximum of one year in county jail as a misdemeanor. On the other hand, a felony conviction attracts a prison sentence of sixteen months, two years, or three years.

Unlike the straight felony, a felony resulting from a wobbler charge can be punishable by only formal probation.

Consequences of Your Prior Firearm Conviction in re California Penal Code section 25400

The court will assess your criminal record when you face charges for carrying a concealed firearm. A prior felony conviction means you must spend at least three months in jail for your current conviction.

If you have a conviction for any of the following crimes, you will spend a minimum of six months in jail:

• assault using a lethal weapon;

See Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)); and

“Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245(a)(1)-(4), (b)”: CALCRIM Number 875.See also “Assault on Firefighter or Peace Officer with Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245(c)&(d)”: CALCRIM Number 860.

• brandishing a gun;

See Brandishing Firearm or Deadly Weapon (California Penal Code section 417(a)(1)&(2)); or

• shooting an inhabited dwelling (California Penal Code section 246).

Loss of Your Gun Rights

If you face a misdemeanor conviction for carrying a concealed firearm, your gun rights may not be affected. However, a felony conviction under this statute will lead to a lifetime loss of your right to purchase, own, or use a firearm. This statute’s firearm ban applies to adults, as well as and minors convicted in adult court.

Although the court can lift the firearm ban, you may need to undergo a lengthy and complicated legal process. If you are unsuccessful in recovering your gun rights, the court can restore them after a governor’s pardon or after obtaining a certificate or rehabilitation.

See Governor’s Pardon/Certificate of Rehabilitation.

Legal Defenses Against Penal Code section 25400 Charges

Facing charges for carrying a concealed firearm does not mean you will necessarily be found guilty of the offense. With the guidance of an experienced defense attorney, you can present the following defenses:

No Knowledge of Having a Firearm

Your being aware of the firearm’s presence is critical when the prosecution seeks to establish your culpability for carrying a concealed firearm. It is not generally difficult for someone to place a gun in your pocket, bag, or vehicle without your knowledge.

See, e.g., “Mistake of Fact”: CALCRIM Number 3406.

The Firearm was Well Stored

Unless you are a convicted felon or fall under another class of “prohibited person”, you have a right to possess a firearm.

See, e.g., “Possession of Firearm by Person Addicted to a Narcotic Drug — Pen. Code § 29800”: CALCRIM Number 2513.

Therefore, if your pistol or revolver, for example, is in a sealed container or the trunk of your vehicle, you are not guilty of the offense. However, you must nevertheless obey all other laws on transportation of a firearm.

Under California law, you can transport a gun by ensuring it is unloaded and stored in a container. Additionally, it should be apparent and not concealed.

See Carrying a Loaded Firearm on One’s Person or in a Vehicle (California Penal Code section 25850(a)).

You are Licensed to Carry a Concealed Firearm

California Penal Code section 25400 does not apply to everyone. If you have a concealed firearm permit, according to P.C. § 26150, the court cannot find you guilty of carrying a concealed firearm.

See Eligibility for Concealed Weapon Permit (California Penal Code section 26150).

Your chances of prevailing with this defense are obviously higher if you can prove that you possess a valid license. In California, you must meet the following requirements before receiving a permit to carry a concealed firearm:

• Complete a firearms training course; and
• Pass a background check.

After meeting the requirements, you must submit an application to your appropriate local law enforcement department for approval.

You Carried the Firearm in Self-Defense

You can fight P.C. § 25400 charges by arguing that you carried a concealed weapon for self-defense.

See “Possession of Firearm by Person Prohibited by Statute: Self-Defense”: CALCRIM Number 2514; and“Right to Self-Defense or Defense of Another — Non-Homicide”: CALCRIM Number 3470.

When using this defense, you must establish the following factors:

• You legitimately and reasonably believed that you (or someone near you) were in immediate danger of severe injury or death; and
• The threat justified your act of carrying the firearm.

The Firearm was in Your Home or Business

If you legally own a firearm in California, you have the right to carry it in your home or on your business premises. However, this rule does not apply to individuals who reside in or work from their vehicles.

Law Enforcement Officers Discovered the Firearm During an Illegal Search

Many firearm charges result when an officer stops your vehicle for investigations for violating traffic rules or you match a description of an individual suspected of breaking the law. Instead of speaking to you and letting you go, some law enforcement officers will search your vehicle.

A police officer does not always have the right to search your car during a routine stop. A police search is only legal under the following circumstances:

• Presence of a valid search warrant.
• Probable cause to believe that you engaged in criminal activity.
• You consented to the search.

The Fourth Amendment to the U.S. Constitution is intended to protect all individuals from illegal searches and seizures. If a police officer discovers a firearm while searching your home or vehicle without a valid warrant, you can petition the court to exclude that evidence from your case. Excluding the arresting officer’s evidence, the court could dismiss your charges.

See Motion to Dismiss (California Penal Code section 995); andMotion to Suppress Evidence (California Penal Code section 1538.5).

Police Misconduct

Some acts that constitute police misconduct under California law include:

• Planting a firearm in your home or vehicle.
• Lying about where they found the gun in their report.
• Using false testimony in your case.
• Coercing or forcing you to confess.
• Violating your constitutional rights during the arrest and

See “Duress or Threats”: CALCRIM Number 3402;

“Entrapment”: CALCRIM Number 3408; and

“Coercion — Pen. Code §§ 236.23, 236.24”: CALCRIM Number 3414.

If you suspect police misconduct in your case, you can file a Pitchess Motion (California Evidence Code section 1043) to check whether other individuals have made such claims. If the judge is convinced that you are a victim of police misconduct, he or she can dismiss your case.