An Alameda County Gun Charge Lawyer Can Fight for You
California has some of the strictest firearm laws in the country, and prosecutors take gun charges very seriously. While the Second Amendment guarantees the right to bear arms, California enforces strict restrictions on owning, carrying, and using firearms. Violating these laws can lead to serious criminal charges and the loss of your rights. For many defendants, the consequences of a conviction can last a lifetime.
Long after serving your sentence and paying fines, you may still face the stigma and loss of constitutional rights that come with a gun conviction. Contacting an experienced Alameda County gun charge lawyer gives you the best chance of avoiding a conviction and achieving the outcome you deserve. A knowledgeable defense attorney can also advocate effectively for consequences that do not have as much of a detrimental effect on your record, particularly for “wobbler” offenses that can be charged as either a felony or a misdemeanor.
Common Gun Charges in California
The State of California recognizes a number of gun-related criminal offenses. Some involve the possession of a weapon, while others focus on how guns are used. Our firm can help you fight any of the following charges.
Felon in Possession of a Firearm
California Penal Code § 29800 makes it a felony for anyone convicted of a felony, addicted to narcotics, or subject to certain restraining orders to own or possess a firearm. A conviction can result in up to three years in state prison. This law applies even if the firearm was not used in a crime and was simply found in someone’s possession.
Carrying a Concealed Weapon
Under Penal Code § 25400, carrying a concealed firearm without a valid permit is a crime. This applies whether the firearm is hidden on your person, in your vehicle, or within reach. Depending on the circumstances, this offense can be charged as either a misdemeanor or a felony, so it is often referred to as a “wobbler” offense. It is important to work with an Alameda County gun charge lawyer early on so that your defense attorney can advocate for the charge to be filed as a misdemeanor rather than a felony.
Carrying a Loaded Firearm in Public
California Penal Code § 25850 prohibits carrying a loaded firearm in public without lawful authority. This law applies regardless of whether the weapon in question was visible or concealed on your body. If you are found guilty of carrying a loaded weapon in public, you could be charged with either a misdemeanor or a felony.
Unlawful Discharge of a Firearm
Negligently firing a gun is prohibited under Penal Code § 246.3. A common example is discharging a firearm into the air during a celebration. While the gun may not be aimed at anyone, such conduct is considered highly dangerous.
Assault with a Firearm
Under Penal Code § 245(a)(2), assault with a firearm is a serious felony. The state will prosecute this offense when someone either uses or threatens with a gun during a criminal assault. You can be charged with assault with a firearm even if no shot is ever fired.
Possessing an Assault Weapon
California bans the possession, sale, or manufacture of certain assault weapons under Penal Code § 30600. If you are found guilty, you could spend as much as eight years in prison on top of any other penalties the judge hands down.
Other Weapons Crimes
Offenses involving firearms receive most of the attention, but police frequently charge individuals in California with violations of other weapons crimes, and vigorous defense is just as important in these cases as well. Some of the most commonly charged offenses include:
- Brandishing a weapon (PC 417)
- Carrying a switchblade knife longer than two inches (PC 21510)
- Assault with a deadly weapon (other than a firearm) (PC 245(a)(1))
- Carrying a concealed dagger or similar knife (PC 21310)
- Possession of a prohibited weapon, such as metal knuckles, a blackjack, or a belt buckle knife (the list is found in PC 16590)
An Alameda County gun charge lawyer could defend against charges of other weapons crimes as well as offenses involving firearms.
The Consequences of a Gun Conviction
You could face serious consequences if you’re convicted of a gun charge. These charges are usually felonies, which can lead to hefty fines and long prison terms. Although the maximum sentence varies depending on the specific offense, other factors can influence the outcome. For instance, your prior criminal record may affect the length of your sentence.
In addition to the penalties handed down by a judge in your case, there are also collateral consequences to consider. Having a conviction on your record can make it difficult to find employment or secure suitable housing. If you are convicted of a felony, you could lose your right to vote in elections or own a firearm. These consequences may not be part of the formal sentence, but they are still impactful.
What Defense Strategies Are Available in a Gun Case?
While gun laws are strict, not every arrest results in a conviction. The right strategy could make all the difference in your case. At Berkowitz Law, we can review the allegations against you and determine the best possible strategy:
Unlawful Search and Seizure
The Fourth Amendment to the Constitution protects you from unreasonable searches and seizures. If the police fail to follow constitutionally protected search and seizure procedures, a firearm charge may be dismissed even if an illegal firearm was found. Your defense attorney can review police reports and other documents to see if your rights were violated. If a judge finds that the firearm was seized illegally, the prosecution might reduce or dismiss the charges against you entirely.
Lack of Knowledge
California law requires the prosecution to prove not only that a defendant possessed a firearm but also that they knew it was in their possession. In many cases, a gun may be found in a shared home, a borrowed vehicle, or a location accessible to multiple people. Merely being near a firearm does not establish knowledge or intent to possess it.
For instance, if police discover a handgun in the trunk of a car with multiple passengers, prosecutors must establish who actually knew the gun was there. A defense lawyer may present evidence showing that the defendant was unaware of the weapon or that it belonged to someone else. Testimony, forensic evidence such as fingerprints, or the absence of personal belongings near the firearm can all raise doubt. By undermining the prosecution’s ability to prove knowledge, this defense can prevent a conviction or at least lessen the severity of the charges.
Self-Defense
In some cases, the use or possession of a firearm can be legally justified. California law recognizes the right to self-defense when someone reasonably believes they are in imminent danger of being killed or severely harmed. This defense may apply not only when a firearm is fired but also when it is carried or displayed in response to a threat. For example, if a person carries a firearm without a permit but does so to protect themselves immediately from an attacker, the situation may support a self-defense claim.
Similarly, if shots were fired to prevent harm, the defense may demonstrate that the force used was proportionate to the threat faced. Courts evaluate whether the perception of danger was reasonable under the circumstances. While self-defense does not excuse every violation of firearm law, it can provide a compelling justification that reduces or eliminates criminal liability.
Insufficient Evidence
Proving that you committed a gun-related crime is no small feat. The state is held to a high burden of proof, meaning you can only be convicted if prosecutors can prove beyond a reasonable doubt that you are guilty of a firearm offense. Because of this high burden, the right approach is often to focus on the weakness of the state’s case.
Necessity
Most of the time, when someone is accused of violating a criminal law, they can argue that their actions were justified by legal necessity and therefore should not be penalized. The California Criminal Jury Instructions for situations in which someone defends against charges on the grounds that they acted with necessity specify six elements that must be proven for this defense to succeed. Under Jury Instruction #3403, the defense lawyer must prove:
- The person accused acted in an emergency to prevent significant bodily harm or evil to another person or to their own body
- The person accused had no legal alternative
- By acting in the way that they did, the person accused did not create a greater danger than the one they avoided
- When the person accused took action, they believed that action was necessary to prevent the threatened harm or evil
- Under the circumstances, a reasonable person would also have believed that the action was necessary
- The person accused did not substantially contribute to the emergency
Although the defense attorney bears the burden of proving these elements to show that the action was justified by necessity, they do not need to be proven beyond a reasonable doubt but only by a preponderance of the evidence. That means it must be shown it was more likely than not that each factor was true.
A felon found to be in possession of a gun or to have used a gun may be able to show it was justified by necessity. It may also be possible to demonstrate that the firearm was not in the legal possession of the person accused or that the conviction on the record did not meet the technical qualifications to prohibit them from possessing a firearm.
Avoiding Gun Charges in California
Many gun charges result from poor planning or handling of a weapon by an individual who had no intention of breaking the law or committing a wrongful act. Knowing how to comply with the law’s detailed requirements can help you avoid being charged with an offense.
For instance, it is generally not legal to carry any type of loaded firearm in a vehicle, so it is important to remember to remove ammunition. To avoid a gun charge, guns that are small enough to be concealed should be transported in a locked container or in the vehicle’s trunk, and they should not be loaded. If a gun is found in the glove compartment or another compartment inside the vehicle, it will be considered a violation. Handguns should be kept in a locked container while being transported to and from the vehicle.
It is essential to understand where you are permitted to carry a firearm and where you are prohibited from doing so, even if you have a carry permit. For instance, even with a valid permit, you cannot legally carry a gun into a childcare center, church, or state park. However, you may be permitted to have a gun in your campsite if you’re camping because it can be viewed as your temporary residence.
FAQs About Gun Charges in California
Can I own a firearm if I have a felony conviction?
No. California Penal Code § 29800 prohibits felons from owning or possessing firearms. Violating this law is itself a felony offense.
Are assault weapons legal in California?
Assault weapons are banned according to California law. The state makes it illegal to sell, manufacture, or own these types of weapons in most cases.
Can I be charged at the state and federal levels for the same incident?
Yes. If a case involves federal law, such as possessing a firearm that crossed state lines or possession during drug trafficking, federal prosecutors may file charges in addition to state cases.
How can I get my gun rights restored?
Since someone convicted of a felony is generally banned for life from possessing a firearm, it is wise to work with an Alameda County gun charge lawyer who can work effectively to get a wobbler offense charged as a misdemeanor rather than a felony. While certain misdemeanor convictions can prevent an individual from possessing a firearm for 10 years, the right to gun ownership is restored after that period ends. If someone with a misdemeanor conviction needs to legally possess a firearm to keep their job, then they can work with an attorney to file a petition under PC 29855 for relief from the ten-year prohibition.
Talk to Berkowitz Law Today
California’s gun laws are strict, and violations carry heavy penalties. The good news is that you can defend yourself against these charges with the help of an Alameda County gun charge lawyer. If you are ready to fight these charges, reach out today to learn how we can help.