Legal Guide to Firearms Laws in California: A Legal Insight

California is known for its strict gun laws, which codify when you can possess and purchase a firearm. You can also face an arrest and charges under P.C. § 12556 if you own or display imitation firearms. Under this statute, an imitation firearm includes objects like a replica firearm or toy gun.

Additionally, having an object that merely appears to be a firearm in a public area could attract criminal charges and a conviction under P.C. § 12556. However, a first offense for displaying an imitation firearm only subjects you to a $100 fine.

Felon in Possession of a Firearm (California Penal Code section 29800)

California P.C. § 29800(a)(1) restricts the purchase or possession of firearms by convicted felons, narcotics addicts, and individuals with active felony warrants. 

The following three elements must be clear when proving your liability under P.C. § 29800(a)(1):

• You fall under the felony category;
• You purchased, owned, or received a firearm; and
• You knew of the gun’s presence.

See “Possession of Firearm by Person Prohibited Due to Conviction – No Stipulation to Conviction — Pen. Code §§ 29800, 29805, 29820, 29900”: CALCRIM Number 2510;“Possession of Firearm by Person Prohibited by Court Order — Pen. Code §§ 29815, 29825”: CALCRIM Number 2512; and“Possession of Firearm by Person Addicted to a Narcotic Drug — Pen. Code § 29800”: CALCRIM Number 2513.

Violation of a felon-in-possession-of-a-firearm law is a felony. If you are found guilty of the offense, you could serve a prison sentence of sixteen months, two years, or three years depending on the circumstances. Instead of spending time in prison, however, the judge can sentence you to felony probation.

Drive-By Shooting (California Penal Code section 26100)

Discharging a Firearm from a Moving Vehicle (“Drive-By Shooting”) involves shooting a firearm from a motor vehicle. Whether you are the actual shooter or allow another person to shoot the gun from your car, you can face arrest and charges under California P.C. § 26100.

This covers a wide range of criminal behavior that is associated with a drive-by shooting, including:

• Willfully shooting another person from your motor vehicle. Your actions must be intentional before you are convicted for a drive-by shooting;
• Allowing a person to bring a firearm and shoot it from your vehicle. Again, you can face criminal charges for a drive-by shooting even when you did not hold or shoot the firearm.

The prosecution can charge P.C. § 26100 as a wobbler – i.e., a misdemeanor or a straight felony. If you allow someone else to shoot a gun from your car, you will face a misdemeanor conviction and a six-month jail sentence. Otherwise, a drive-by shooting conviction attracts a sentence of sixteen months, two years, or three years in prison.

Shooting at an Inhabited Home or Vehicle (California Penal Code section 246)

P.C. § 246 makes it illegal to shoot at an inhabited building, dwelling, vehicle, or aircraft. The court requires the prosecution to prove these elements beyond a reasonable doubt to obtain a conviction for shooting in an inhabited place:

• You willfully discharged the firearm;
• You shot the gun at an inhabited home or vehicle; and
• Your actions were not geared towards self-defense.

Shooting into an inhabited dwelling is a felony. If you face a conviction under P.C. § 246, you risk a three-year, five-year, or seven-year prison sentence.

You commit a crime under P.C. § 245(a)(1) if you use a dangerous weapon to injure or attempt to injure another person. 

The elements of the crime that constitute this offense consist of:

• You performed an act that is likely to result in the application of force on another person;
• You performed the act with a lethal weapon and enough energy to cause serious injury;
• Your actions were willful;
• When you acted, you knew that your actions would lead to the application of force; and
• You had the present ability to apply force and cause an injury to another person.

See CALCRIM Number 875 (“Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury — Pen. Code §§ 240, 245(a)(1)-(4), (b)”): CALCRIM Number 875.

Under California law, assault with a deadly weapon is a wobbler. The prosecution can file misdemeanor or felony charges based on the type of weapon you use and the severity of injuries (if any) to the victim.

Misdemeanor penalties for assault with a deadly weapon include a one-year jail sentence or a $1,000 fine. A conviction under P.C. § 245(a) (1) as a felony will attract a prison sentence of sixteen months, two years, or four years. The court may increase your sentence to twelve years if the weapon is a firearm.

See also Personal Discharge of a Firearm During the Commission of a Serious Felony (California Penal Code section 12022.53(c)) (20 years);

Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)); and

Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7: California Penal Code section 12022.7).

Possession of an Assault Weapon (California Penal Code section 30605)

While upholding the right to purchase and own a firearm in California, the state has banned many firearms that can potentially cause mass casualties. California P.C. § 30605 seeks to punish individuals who unlawfully own or control prohibited assault weapons.

When establishing your guilt under P.C. § 30605, the prosecution must prove that you knowingly possess the assault weapon. 

Firearm possession can be constructive or actual:

• Actual possession. If you were carrying it on your person or in your vehicle, you are considered to have the subject weapon.
• Constructive possession. This means that you have access to and control over the alleged firearm.

California has a long list of assault weapons that are prohibited, including:

• Semi-automatic rifles with a capacity of up to ten rounds;
• Semi-automatic rifles with magazines that have extra features or modifications; and
• Semi-automatic rifles, pistols, and shotguns.

See “Possession, etc., of Assault Weapon or .50 BMG Rifle — Pen. Code §§ 30605, 30600”: CALCRIM Number 2560;

“Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense – Charged as Separate Count and as Enhancement — Pen. Code § 30615”: CALCRIM Number 2561; and

“Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense – Charged Only as Enhancement — Pen. Code § 30615”: CALCRIM Number 2562.

Possession of an assault rifle is a wobbler. A misdemeanor conviction under this statute is punishable by a one-year jail sentence and up to $1,000 in fines. If the prosecution charges you with felony possession of an assault rifle, you risk facing a sixteen-month, two-year, or three-year prison sentence.

Not all cases of assault rifles are severe. Under the following circumstances, your charges could be reduced to a misdemeanor:

• You can argue that you had the firearm before it was declared an assault weapon;
• You have no prior convictions for a firearm-related offense; or
• You relinquish your rights to the weapon under California Penal Code section 31100: California Penal Code section 31100.

Illegal Sale of a Firearm (California Penal Code section 26500)

You commit a crime under California P.C. § 26500 when you sell, lease, or transfer a firearm without a valid license or permit. Under this statute, a firearm is any device designed to expel a projectile and that causes an explosion.

Some individuals cannot legally own a gun under any circumstances, including:

• Anyone with a felony conviction on their record;
• Individuals who are addicted to narcotics;
• Persons who suffer from mental incapacitation;
• Anyone under eighteen years; and
• Individuals with two or more convictions for brandishing a weapon.

See also Felon in Possession of Ammunition (California Penal Code section 29800).

California law requires the sale and transfer of all guns through licensed dealers. The following individuals and transactions are exempt from prosecution under P.C. § 26500:

• Law enforcement officers;
• Individuals acting on a court order;
• Transfer of firearms at gun shows;
• Individuals seeking to dispose of guns that they have inherited;
• Temporary loaning of firearms at target shooting facilities; and
• Delivery of unloaded firearms to licensed collectors.

You can avoid charges by ensuring you have a valid firearm license for all your weapons. Additionally, you should ensure that you buy your firearms from someone licensed to do so.

The unlicensed sale of firearms is a misdemeanor punishable by a maximum six-month jail sentence and a fine not exceeding $1,000. You may face seperate punishments for each firearm you transfer or sell without authorization.

Defenses Against Gun and Weapon Offenses in California

Facing an arrest for a firearm offense does not mean you will necessarily be convicted. With the following legal defenses, you can fight the charges and avoid the harsh penalty that often accompanies a conviction:

Self-Defense

No law prevents you from defending yourself from immediate danger. Unfortunately, your attempt to defend yourself could be interpreted as an assault or threat to someone else. However, when using self-defense against your charges, it must be clear that you reasonably thought you were in imminent danger and used only necessary force to protect yourself (or another person).

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.

Illegal Search and Seizure

In cases involving, for example, felons in possession of a firearm or possession of an assault rifle, the police must often conduct a search to ascertain the presence of these weapons. Even when you are suspected of committing a crime in California, law enforcement officers must obtain a valid warrant to search your vehicle or home. In cases based on an illegal search, you can petition the court to throw out illegally obtained evidence.

See Motion to Dismiss (California Penal Code section 995); and

Motion to Suppress Evidence (California Penal Code section 1538.5).

Police Misconduct

You can formulate a defense for your firearm charges around police misconduct, including forced confessions and the planting of evidence. Most forms of police misconduct violate your constitutional rights, and you can use them to seek a dismissal of the case.

Police Entrapment

Entrapment occurs when police officers use coercion and other overbearing tactics to induce you into committing a crime. You can avoid a conviction for firearm crimes using this defense.