If you are an immigrant, you have surely wondered if you can you carry a concealed weapon in California.
This and many other related questions could come to your mind. If that is the case this article will be of your interest, especially if you are an alien living undocumented in Los Angeles.
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Can you carry a concealed weapon in California while being undocumented in 2022?
If you have been charged with illegally carrying a weapon, we can help. Just give us a call and we will be happy to review your case and discuss a defense strategy with you.
Carrying concealed weapons on clothing or in a vehicle is considered a crime in California. This is established by the 25400 PC california concealed carry laws
California concealed carry laws penalizes those who carry a pistol, revolver or any other concealed firearm without a permit. Not only to the owner of the vehicle but also to the occupants.
The charge for carrying a concealed weapon in California (concealed carry), is different from the crimes of:
- Carrying a loaded firearm (Penal Code 25.850 PC).
- Openly carrying an unloaded weapon in public (Penal Code 26.350 PC).
California Penal Code 25400 PC (Carrying a Concealed Weapon)
Although Peruta vs. County of San Diego suggested that the “carrying a concealed weapon” charge might be unconstitutional, it is still imposed in California.
The three elements that constitute the crime to carry a concealed weapon in California are:
- The person concealed a firearm in their belongings (clothing or bag) or in a vehicle.
- That person knew of the existence of the concealed firearm.
- The firearm was deliberately and substantially concealed.
Even when the weapon is partially concealed, the person could also be charged with this crime. The mere suspicion that you carry a concealed weapon can result in your arrest.
So can you carry a concealed weapon somehow in California? In short, openly carrying a loaded or unloaded firearm on the street is a crime in California.
How does the law define a firearm?
Any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustionPenal Code 16,530 (a
This includes what is stated in Section 12689(a):
- A rocket or “projectile-launching propelled missile”, or
- A similar device containing any explosive or incendiary material; and
- Whether or not the device is designed for the purpose of signaling emergency or danger.
Some of the most common firearms are:
- Rifles (short or long barrel);
- Shotguns (short or long barrel);
- Electric guns.
What are the requirements to carry a firearm?
The Gun Control Act (GCA) establishes that:
- Both shotguns and rifles and ammunition can only be sold to people over 18 years of age.
- Other firearms (pistols, revolvers, guns and others.) can only be sold and/or acquired by people over 21 years of age.
- For the purchase, possession and carrying of weapons, licensees are subject to these minimum age requirements in all states of the country.
Unless state law or local ordinances establish a higher minimum age.
What type of crime is it to carry a firearm?
Carrying an illegally concealed firearm is classified as both a misdemeanor and a felony. That is, a wobbler, also known as a “alternative felony/misdemeanor offense”, which we will explain later.
Whether to judge it as a felony or a misdemeanor is at the judge’s discretion. The person convicted of a serious crime qualified as a wobbler, can request the court to reduce the sentence to a misdemeanor.
Penalties for carrying a concealed weapon in California
The penalties are established according to the classification of the crime.
- Up to 1 year in prison in a county jail.
- Maximum fine of $1,000.
Depending on the circumstances of the crime, mitigating factors, and the work of the defense, the defendant may receive an alternative sentence of probation. It is then possible that they will spend a short period in prison or even avoid jail.
It will depend on the elements that the judge considers in favor or against to establish only a fine or also imprisonment. Among them:
- Criminal record of the accused.
- Refusal to cooperate with the police at the time of arrest.
- History of domestic or street violence.
- Intention to use the concealed weapon.
The existence of aggravating factors makes the crime automatically become a wobbler. That is, the prosecution could establish a charge as a misdemeanor or a felony.
A felony charge under California Penal Code 25.400 is established when the defendant is:
- Previously convicted of a felony or any other firearm offense.
- Used a stolen firearm and they were ware of it, or had reasonable cause to know it.
- An active member in a criminal gang.
- Did not have a license or permit to carry the firearm.
- Prohibited from owning, possessing or carrying weapons committing or attempting to commit a violent crime (per Penal Code 29.900 PC):
The possible sentence for a person who is found guilty of a crime involving the possession of a concealed firearm is:
- One year in prison in a county jail with probation.
- 16 months to two or three years in state jail and/or
- Maximum fine of $10,000.
What does the wobbler charge represent under Penal Code 25,400 PC?
The rating of a wobbler in California will depend on:
- The circumstances of the act for which they were charged.
- The defendant’s criminal history.
According to Penal Code 25,400 PC, the crime will become a “wobbler” when apart from carrying a concealed firearm in his clothing, bag or vehicle, the defendant:
- Previously convicted of a misdemeanor (against person or property), or a drug offense; or
- For either of these two circumstances:
- The firearm was loaded or had ammunition in an accessible location.
- The seized weapon is not registered with the Justice Department in the defendant’s name.
Note: The arresting officer does not need to prove at the time that the person is not the owner of the weapon. It is enough that they have well-founded suspicions that it does not legally belong to them or is registered in their name.
What is the punishment for a wobbler as a misdemeanor and as a felony?
You could face the following penalties:
- Up to 1 year in prison in a county jail.
- Fine for a maximum of $1,000.
If the crime is classified as a felony, the penalties could be:
- Up to one year in prison in a county jail with parole.
- 16 months to 2 or 3 years in prison in the California State Jail; and
- A maximum fine of $10,000.
Additional penalties for carrying a concealed weapon with prior convictions
Any violation of Penal Code 25,400 PC with a prior conviction related to firearm offenses will be punishable by a minimum sentence of 3 months imprisonment in a county jail.
Additionally, if you are convicted of a concealed firearm felony and have previously been convicted of:
- Assault with a deadly weapon (Penal Code 245(a)(1) PC).
- Shooting at an inhabited dwelling or an inhabited vehicle (Penal Code 246 PC).
- Brandishing a firearm (Penal Code 417 PC).
You will have to pay 3 to 6 months in prison in a county jail. Unless the judge finds it best to grant probation and suspend the minimum jail time.
Note: The penalty for illegal possession of a firearm may additionally lead to the loss of the weapon.
Possible defenses for the crime of carrying a concealed weapon in California
If you have been charged with this crime, an experienced criminal attorney may suggest the following defenses:
- The client did not know of the existence of the weapon in his effects or vehicle: For the crime of carrying a concealed weapon to be constituted, it is essential that the person has knowledge of it. The explanation is that:
- If you didn’t know, you can’t be guilty.
- Someone else may have placed the gun in your bag, coat or car.
- The weapon was found in a place in the vehicle to which the driver did not have immediate reach: A person cannot be held responsible for carrying a concealed weapon if they were:
- In the trunk of the vehicle or other non-visible part; or
- In a locked container (with the exception of the glove compartment of a car); or
- The person is the legitimate owner of the weapon and is legally authorized to carry it.
- The weapon was concealed at the workplace or in your home or property: Individuals who have a permit to carry weapons may have them in their own home or business.
- The individual has a license to carry the weapon: Penal Code 25.150 PC states that those with a valid license are not guilty of this charge.
- The weapon was seized by the police in an illegal procedure: For example, a search of the car, the house or the office without a search warrant issued by a judge. To carry out the search, the officer must:
- Have well-founded suspicions that the person is committing a crime; or
- Demonstrate that they represented a threat to their physical integrity.
- The defendant was carrying the weapon in self-defense because their life was in serious danger or they received threats from another person.
- Client is a victim of police misconduct as the weapon was intentionally placed or the officer:
- Lied when he or she said the gun was hidden.
- Testified falsely altering the truth of the facts.
- Coerced client into incriminating himself.
- Violated the client’s civil rights in other ways.
Who can own guns in the US?
Pursuant to the Second Amendment to the United States Constitution, all eligible persons may acquire, possess, and carry a firearm.
However, please note that:
- That right enshrined in the US Bill of Rights is regulated in some states.
- The possession and carrying of weapons is based on the principle that everyone has the right to defend themselves, their state and the United States. The founders of the nation believed that only in this way was it possible to preserve life, property and freedom.
- Although, the notion of freedom regarding the purchase and carrying of weapons has changed today. Particularly, due to the bloody events carried out by young people and deranged people in schools and other public places.
- More and more voices are calling for greater gun regulation and control in the US. This has generated intense debate on the street, in the media, and in Congress.
Who is exempt from the crime of carrying concealed weapons?
- Police officers and other law enforcement officers (including active and retired).
- Licensed dealers to carry firearms.
- Members of the US Army.
- Bank security guards or securities transport members.
- Members of target shooting organizations and clubs.
- Hunters or fishermen with licenses to carry and use weapons in their work or recreational activities.
However, these people are subject to certain conditions of carrying and use. For example, that the weapon must be unloaded or that they can only use them in their own activities.
Who is prohibited from carrying weapons without papers?
In California certain people cannot buy, own and carry firearms, including those who:
- Have been convicted of a felony in the state, country, or abroad;
- Individuals convicted of misusing a weapon or committing violent crimes (felony – misdemeanor);
- Those who intentionally violate a court order issued in order to prevent crimes of domestic violence.
- Controlled substance abusers convicted of certain crimes related to:
- Threats to public officials,
- Witnesses or accomplices to a crime, and
- Crimes with minors under 18 years of age.
What is the minimum age to buy a gun?
Throughout the country the minimum age to buy firearms is 18 years, if it is a shotgun or rifle. For all other permitted firearms, the minimum age is increased to 21, according to the GCA.
With the exception of the states of Alaska, Minnesota, Maine and Vermont where the minimum age to purchase a shotgun or rifle is 16 years.
What if I have an unregistered gun?
Individuals who have a permit to carry a concealed weapon are not guilty of the crime contemplated in Penal Code 26,150 PC. But, if the gun is not registered, then you could be arrested by the police.
As part of its gun control policy, California requires guns owned by individuals to be registered. Other states that require a registration, apart from the license or permit to carry weapons are:
- Connecticut, Hawaii, Maryland, Michigan, New York, New Jersey and Washington.
- Likewise, California and 13 other states in the country require prior permission to purchase a firearm.
- 5 states, including California, prohibit the free carrying of firearms in public places.
- In all other states the purchase, possession and carrying of weapons is allowed.
Can legal aliens buy firearms in the US?
According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), all aliens who have been legally admitted to the country can purchase a firearm.
The only exception is for aliens who:
- Remain in the US on a nonimmigrant visa;
- They do not meet any of the exceptions set forth in 18 USC 922(y)(2) regarding licenses to possess a weapon or a valid hunting permit.
What happens if an undocumented immigrant carries concealed firearms?
He could receive a punishment of up to 10 years in prison, if they are caught with a weapon in their possession. Undocumented immigrants are generally prohibited from acquiring, possessing, transporting, and carrying firearms.
Regardless of whether or not they have been convicted of a crime. Some criminologists and immigrant advocates consider this discrimination against other people.
Neither can lawfully admitted aliens on non-immigrant visas. Unless they request a special permit endorsed by the governments of their countries and do not fall into the prohibited categories.
How does carrying a concealed weapon affect an immigrant?
If you are an immigrant with legal status or permanent residence, being convicted of this crime can result in:
- Imprisonment and payment of fines;
- After serving the sentence, you will be deported to your country of origin.
Other crimes that lead to deportation in California are:
- Crimes of moral turpitude;
- Aggravated felonies;
- Crimes related to controlled substances (drugs);
- Firearms crimes;
- Domestic violence crimes.
In addition to knowing if you can carry a concealed weapon in California, you may be interested to know that at the Los Angeles law firm of Lluis Law we are specialists in immigration matters. Even in those that involve crimes and possible deportations. Do not hesitate to contact us if you need professional assistance.
After a conviction for illegal possession of firearms, is it possible to restore the right to own them?
Not generally. Unless the person convicted of a misdemeanor has been a ward of a juvenile court.
The right to buy, own or carry a firearm could be restored after turning 30 years old.
To recover the right to carry firearms, you must first eliminate the conviction, the restraining order that weighs on the person or the retention for mental health reasons.
In cases of serious crime, the suspension or prohibition to carry weapons will be for life. Both for adults and convicted minors.
How is the process to restore the right to bear arms?
If it is a felony but qualified as a wobbler, the process is as follows:
- Petition the court for the crime to be reduced to a misdemeanor, and subsequently
- File a motion to have the charges dismissed.
The other way to restore the right to bear arms is through a pardon signed by the Governor of California. The two legal procedures for doing so depend on where the applicant resides.
- If you live in California, you can apply for a state rehabilitation certificate that is equivalent to a waiver application.
- If you currently live in another state, you can apply directly to the Governor for clemency.
However, if the person was convicted of a felony involving the use of a firearm, the Governor’s pardon will not serve to restore the right to bear arms.
Is it possible to clear the criminal record for the crime of illegal possession of a firearm?
Yes. As long as the convicted person is granted parole. Upon successful completion of probation or early termination of parole.
However, they will not be able to keep or carry a firearm again or avoid being convicted of this crime.
Any parole violation or breach of terms will be sufficient reason for the judge to deny expungement.
If you want to deepen your knowledge on this topic, we invite you to read our special article on how to clear criminal records.
Now that you know if you can carry a concealed weapon in California while being undocumented, you can contact us to review your case. We offer a professional consultation where we will explain in detail your best options. We are experienced criminal attorneys with over 50 years of combined experience.
LATINOS WITH OVER 50 YEARS EXPERIENCE
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