What are the factors or elements of 25400 PC Carrying a Concealed Weapon
You violate Penal Code 25400 PC, “carrying a concealed firearm,” when you commit certain acts with:
- a pistol,
- a revolver, or
- any other firearm capable of being concealed upon the person.
The prohibited acts are:
- Carrying the firearm concealed within any vehicle under your control or direction;
- Carrying the firearm concealed upon your person; OR
- Causing the firearm to be carried concealed within any vehicle in which you are an occupant.
Effective January 1, 2012, California has no “open-carry” exception for unloaded firearms. It is now illegal in California to carry an unloaded gun upon your person in a public place.
Elements of the crime of carrying a concealed weapon
There are three requirements (“elements of the crime”) under Penal Code 25400:
- You concealed a firearm on your person or in a vehicle,
- You knew about the presence of the concealed gun, and
- The firearm was substantially concealed.
Legal Consequences:
If Convicted as a Misdemeanor
Carrying a concealed weapon is generally charged as a misdemeanor. You would face:
- Up to 6 months in county jail
- A fine up to $1000
- Summary probation
Unless you have a criminal history that included violence, were uncooperative with law enforcement at the time of your arrest, or there was evidence you intended to use the weapon, you will generally serve little to no jail time.
If Convicted as a Felony
Under certain aggravating circumstances, violation of PC 25400 will always be charged as a felony. These conditions include:
- You are a convicted felon
- You had no license or permit for the weapon
- The weapon was stolen and you knew or should have known it was stolen
- You have a previous firearm conviction
- You were otherwise prohibited from possessing a weapon or firearm under Penal code 29900 for having committed or for attempting to commit a violent offense
A felony violation carries the following:
- 16 months, 2 or 3 years in county jail
- Or, probation with up to one year in county jail
- And/or a fine of up to $10,000
If you have a prior felony conviction, the court will impose a mandatory minimum jail sentence of 3 months in county jail.
You also face an increased mandatory minimum jail sentence of 3 to 6 months in jail if you were previously convicted of:
- Assault with a deadly weapon—PC 245(a)(1)
- Shooting at an inhabited dwelling—PC 246
- Brandishing a weapon—PC 417
Wobbler
Also, carrying a concealed weapon is a “wobbler” so that the DA has the discretion to charge you with either a felony or a misdemeanor provided the following circumstances are present:
- You have a prior misdemeanor conviction for a property crime or offense against a person or for a narcotics offense, OR
- The firearm is loaded or immediately capable of being loaded and,
- The firearm is not registered to you by the Department of Justice
A misdemeanor conviction carries up to one year in county jail and/or a fine up to $1000. A felony conviction is the same as indicated above.
Immigration Consequences:
A conviction of 25400 PC may potentially subject you to deportation if you are not a U.S. Citizen and diminish your likelihood of becoming a naturalized citizen!
How we can defend you against charges of Carrying a Concealed Weapon 25400 PC?
If you have been charged under 25400 PC for carrying a concealed weapon, there are a number of defenses available to you:
Violation of 4th Amendment for Unlawful Search and Seizure
A police officer can only search you, your home or business pursuant to a valid search warrant. The officer can also search you and these areas if you consent or if there exists probable cause. For instance police cannot randomly stop you on the street and search you though they will allege probable cause. But if you are stopped for a traffic violation and are otherwise cooperative by producing your identification and license, the officer cannot search your car unless you give your consent or there is a valid reason to search that amounts to probable cause. Probable cause is defined as facts or evidence that would lead a reasonable person to believe you had committed a crime.
If you are validly arrested, the officers may search your person and the immediate area for weapons but this does not allow them to go to your home and car to search it absent a search warrant.
Even if a valid search warrant is issued, the officers can only search in those areas specifically designated. If a weapon is found under circumstances that violated your right to be secure from illegal or unreasonable searches and seizure under the 4th Amendment to the US Constitution, it is not admissible in court.
Lack of Knowledge
You may only be convicted if the DA proves you knew the weapon was in your possession. If someone gave you a package or box and you were unaware of its contents or you picked up the wrong luggage or package that contained a weapon, then this element is absent.
The Weapon was in a Locked Container or in Your Car Trunk
If the weapon was securely locked in a container or was found in your vehicle trunk, you are not in violation of California Penal Code 25400. If it is in your locked glove box, it has to be in a separate locked container. You must of course have been in lawful possession of the firearm as well.
Possession of a Permit or License to Carry a Concealed Weapon
Under PC 26150, having a permit or license to carry a concealed weapon does not generally expose you to violations under this law so long as you possess and produce your valid license. But a business or property owner may legally deny you entry if you are carrying a weapon despite having a license to do so. Your failure to leave may constitute trespassing or even other offenses.
Possession in Your Home or Business
You are allowed to possess and conceal weapons at your residence or business provided you own it, and you are otherwise permitted to own or possess the weapons or firearms. You may not keep it in your vehicle unless you are cab driver.
The Firearm was carried in Self-Defense
To avail yourself of self-defense, you must demonstrate that specific threats were made against you that placed you in grave danger and that a restraining order was issued against the threatening person. And despite the protective order, you felt it was necessary for your safety and life that you carry a weapon on yourself or in your vehicle.
Police Misconduct
Police do break the law to justify arresting someone whom they suspect with little evidence is committing or about to commit a crime or because they feel the defendant was guilty of something. There are many examples of police planting evidence such as weapons in a car or who claim that a weapon was found on the defendant. In other cases, police coerce confessions from an individual either from a physical beating or by emotionally wearing down the defendant to where any statement put in front of them will be signed.
You are Exempt from the Law
Certain individuals are exempt from the general prohibition against carrying a concealed weapon:
- Licensed hunters carrying weapons for the purpose of hunting
- Licensed firearms dealers
- Members of a shooting club on club premises
- Peace officers
- Bank guards
- Federal agents
- Security officers
- Military personnel
This right is not unconditional. For example, if you are a bank guard or security officer, you cannot carry a concealed weapon during non-working hours.
Contact us:
We have been successfully defending clients facing all types of criminal charges in Sonoma and Marin Counties, since 1992.
The 100 Trial Lawyers Association has recognized us as one of the best criminal defense attorneys in the country!
Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.
Don’t bargain with your freedom! The right attorney makes all the difference between your freedom and incarceration!
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