California Criminal Defense Blog

Assembly Bill 962 (AB 962) which was passed last November (codified as Penal Code sections 12060, 12061 and 12318) would have required all purchases of "handgun ammunition" to be registered, and would also have banned all mail order ammunition sales in California.

In a lawsuit funded by the National Rifle Association (NRA) and the California Rifle and Pistol Foundation (CRPF), however, Fresno Superior Court Judge Jeffrey Hamilton ruled on January 18, 2011 that AB 962 is unconstitutionally vague. The reason is that it doesn't provide adequate legal notice of specifically what ammunition cartridges are “principally for use in a handgun,” and therefore regulated as "handgun ammunition" under AB 962.

Judge Hamilton issued an Order of Permanent Injunction on January 24, 2011 preventing the states and its agents from enforcing the provisions of AB 962. California Attorney General, Kamala Harris, is considering whether or not to appeal the court's ruling.

California’s “10-20-life ‘use a gun and you’re done’” law subjects an offender to ten years in prison for using a gun, 20 years for discharging a gun, and 25-years-to-life for seriously injuring or killing another person with a gun. What’s more is that these harsh penalties are in addition and consecutive to the penalty you face for the underlying felony offense.

Here are just a few of the reasons why California’s “10-20-life ‘use a gun and you’re done’” law is unduly harsh:

1. You can be sentenced to ten years for “using” a gun even if the gun is inoperable or unloaded.


2. You can be sentenced to ten years for “using” a gun even if you only use it to strike someone (otherwise referred to as pistol whipping).


3. You can be sentenced to twenty years for discharging a gun even if the gun misfires or doesn’t discharge a bullet.


4. You can be sentenced to 25-years-to-life even if it’s not the gunshot wound that kills or injures the alleged victim.


5. You can be sentenced to 25-years-to-life even if you’re not the one who personally uses the gun if the crime was allegedly gang-related.

California firearm offenses seem to be on the rise. It’s as if there’s always a news story about a celebrity being charged with carrying a concealed weapon, someone being held-up at gun point, an innocent victim being gunned down in a drive-by shooting, or a domestic violence charge that involves gun allegations.

There’s no doubt about it…we are a society that loves our weapons. And when you couple this with the fact that there are literally dozens of California firearm offenses on the books, you’re bound to hear about numerous allegations involving violations of California gun laws.

The problem is that California firearm offenses are technical and complex. Many of them overlap with each other and subject a defendant to illegal sentences for multiple convictions based on the same underlying conduct. Similarly, there are so many sentencing enhancements for personal gun use, that it’s easy for an alleged offender to receive a sentence that exposes him to years of unjust prison time.

This is why is it critical for anyone accused of violating one of California’s gun laws to consult with a criminal defense attorney who thoroughly understands California firearm offenses and the many defenses that are applicable to these serious charges.

Penal Code 246 PC “shooting at an inhabited dwelling” prohibits intentionally firing a gun at an inhabited home or occupied car. And, for that matter, it’s not even necessary that you fire “at” a home or car…simply shooting in close proximity to the object is enough to trigger this charge.

Penal Code 246.3 PC California’s law against negligently discharging a firearm prohibits willfully firing a gun in a manner that could result in a person’s death or serious bodily injury. Unlike 246 PC, this law doesn’t involve a specific target. But both laws are designed to deter people from firing guns in situations that are likely to harm others.

And despite the fact that these laws are so similar, their punishments are not. Penal Code 246.3 PC California’s law against negligently discharging a firearm is considered a much less serious offense than shooting at an inhabited dwelling. There is no mandatory period of incarceration and, at the most, you’ll serve a three-year prison term.

Penal Code 246 PC, however, subjects you to a minimum six-month county jail sentence or to a three, five, or seven-year California State Prison sentence. This charge also typically encourages the prosecutor to additionally charge you with attempted murder.

Similar charges – very different penalties.

Penal Code 246 PC California’s law against “shooting at an inhabited dwelling” prohibits willfully and maliciously firing a gun at a “lived in” home, regardless of whether anyone is home at the time.

But if the prosecutor can prove that you specifically intended to kill someone inside the house, he/she can charge you with attempted murder. Simply shooting at (or even in close proximity to) the house isn’t enough. The prosecution must be able to prove that you had the specific intent to kill another person before a judge or jury can convict you of attempted murder.

However if you do kill someone…even accidentally…prosecutors could elect to charge you with murder or with a sentencing enhancement under California’s “10-20-life” law. But because California courts have held that Penal Code 246 PC California’s law against “shooting at an inhabited dwelling” is “assaultive in nature” it does not subject you to automatic murder charges under California’s felony murder rule…despite the fact that courts have also held that it is an “inherently dangerous crime”.

Last week, three ex-Duke football players pled guilty to two misdemeanor gun charges: possessing a gun on school grounds and possessing a concealed weapon. Each student received a one-year probation, a $500 fine, and community service. Because these were misdemeanor charges, their Second Amendment Gun Rights were not revoked.

Unless you’re convicted of a misdemeanor crime of domestic violence, most misdemeanor convictions do not result in a ban on owning or acquiring firearms. However, all felony convictions do. At least this is the law in California.

But even when these rights are revoked, there’s still hope. There are several options available to restore your California firearms rights. Expungements, felony reductions, certificates of rehabilitation, and governor’s pardons are all tools that, if successful, can restore your California firearm rights.

Yet despite the fact that you regain your California gun rights, you may still be subject to a federal firearms restriction. In order to ensure that you don’t inadvertently break the law by carrying a weapon in violation of a prohibition, it’s best to obtain a copy of both your California and federal criminal records. Doing so allows you to verify whether there are any holds on your right to bear arms.

The answer to this question can be somewhat confusing under California law. Take for example, a situation where someone points a gun at someone else. While it would seem like this would be an obvious violation of California’s “assault with a firearm” law, it isn’t. And before we could say whether this qualifies as an assault with a deadly weapon (ADW) or an assault with a firearm, some other questions would have to be answered first.

Was the gun loaded? If not, these circumstances don’t violate California’s “assault with a firearm law” because there is no actual ability to shoot someone. But instead let’s say that rather than pointing the unloaded gun at another person, the individual used the gun to “pistol whip” the victim. Under these circumstances, the offense could be either an assault with a firearm or an ADW.

And how the offense is classified is actually very important as well…especially if the firearm is a machine gun, assault weapon, or semiautomatic firearm. An assault with one of these firearms subjects an offender to three to twelve years in the state prison. An assault with a “generic” firearm subjects an offender to six months in a county jail to four years in prison. An ADW doesn’t even carry a mandatory jail or prison sentence.

So while it may not seem like there’s a significant difference between the phrases “assault with a deadly weapon” and “assault with a firearm”, they have very different legal definitions and very different penalties under California’s gun laws.

That’s right, you read that correctly. California law provides that you can be convicted of using a firearm even if you’re not the one who uses the gun. This is because Penal Code 12022 and PC 12022.5, California’s sentencing enhancements for “personally using a firearm” apply to any principal involved in the crime.

You are a “principal” to a crime regardless of whether you directly and actively participate in the commission of the crime or whether you simply aid and abet another person who does so.

This means that in addition and consecutive to the sentence you receive for the underlying offense, you will serve another one to five year state prison sentence if you or an accomplice uses a firearm.

These sentencing enhancements under Penal Code 12022 and PC 12022.5 apply to offenses when you or an accomplice either use a firearm or are even armed with a firearm. And to make matters worse, you can be convicted of these sentencing enhancements even if you don’t know that one of your accomplices is armed.

Unlike some other states, California requires that all private party gun transfers be brokered through a licensed California gun dealer. If you don’t participate in this type of required exchange, the circumstances of the offense will dictate which California gun law(s) prosecutors will accuse you of violating.

Penal Code 12070 PC California’s law against the unlicensed sale of firearms, selling dangerous firearms prohibited under Penal Code 12020 PC, or Penal Code 12021 PC California’s “felon with a firearm” law are a sample of some of the most common offenses that could be charged in connection with the unlicensed sale of a firearm.

It’s important to understand the laws of the state in which you possess, purchase, or sell firearms. Each state has very different laws and each is independent of each other. The fact that it is okay to sell your gun at a garage sale in one state doesn’t mean that this type of transaction will be legal in another.

Before engaging in any firearm transaction, it is a good idea to check with your local attorney general about your state’s rules and regulations.

California gun laws prohibit you from carrying a variety of illegal weapons. But instead of simply saying that you can’t carry a concealed weapon without a permit, or that you can’t possess an illegal gun, the California Legislature came up with a multitude of offenses, each one more confusing than the next.

Take the issue of unlawful possession, for example. California Penal Code 12280 PC prohibits possessing assault weapons. Penal Code 12020 PC prohibits possessing specific “dangerous” firearms. Penal Code 12303 PC prohibits possessing destructive devices. Penal Code 12025 PC prohibits carrying concealed weapons.

And, depending on the circumstances of your arrest and on the specific weapon involved, you could violate multiple offenses at the same time. If, for example, you carry a concealed assault weapon, prosecutors would likely charge you with California Penal Code 12280 PC which prohibits possessing assault weapons and Penal Code 12025 PC carrying a concealed weapon. To make matters worse, if your assault weapon is loaded, they’ll tack on a charge for Penal Code 12031 PC for carrying a loaded weapon. Using the weapon adds additional charges and possibly sentencing enhancements as well.

The bottom line? Illegally possessing and/or using an illegal weapon in California can subject you to a variety of charges and to substantial penalties.

California has so many gun laws on its books that it’s sometimes hard to differentiate between crimes. Carrying a concealed weapon, carrying a loaded firearm, unlawfully carrying a firearm, personally using a firearm…these are just a few of California’s gun laws that contribute to the confusion. And just when you think you understand the specifics of an offense, there are exceptions and technicalities that render the law even more confusing than ever.

Take, for instance, Penal Code 12031 PC, California’s law against carrying a loaded firearm in a public place. It appears as though this law is pretty self explanatory. Think again! Here are a couple examples to prove the point…

1. If you intend to commit a felony and carry an unloaded gun…but also possess ammunition…the gun is technically loaded for purposes of Penal Code 12031 PC, California’s law against carrying a loaded firearm in public.


2. If you have a loaded gun in your place of business, you are exempt from prosecution under this law. But if you carry a loaded gun in your place of business, it must be because you believe that you are in grave danger…otherwise, prosecutors could still charge you with carrying a loaded firearm in a public place.

The bottom line is that if you find yourself in the unfortunate position of being arrested for a California firearm offense, the best thing you can do is to consult with a criminal defense attorney who truly understands the ins and outs of these complex laws.