|
|
|
| Contact |
|
|
Gun Offenses
|
|
| ABOUT GUN LAWS
In People v. Felix (2003) (5/21/03; 03 C.D.O.S. 4269; ___ CA4th ___), a jury convicted defendant of carjacking (PC §215(a)), taking and driving a vehicle without the owner's permission (VC §10851(a)), receiving a stolen vehicle (PC §496(d)), and giving false information to a peace officer (PC §148.9(a)). The jury also found defendant in committing the carjacking, personally used a firearm within the meaning of PC §§12022.53(b) and 12022.5(a)(2). The trial court sentenced defendant to 9 years in prison. In doing so, the court imposed a 4-year enhancement for firearm use under PC §12022.5(a)(2), rather than the 10-year enhancement for firearm use under PC §12022.53(b), which the court found would be cruel or unusual punishment. The Court of Appeal reversed, holding that the 10-year enhancement under PC §12022.53(b) was not cruel or unusual punishment in this case. In U.S. v Odom (2003) (5/20/03; 03 C.D.O.S. 4216; ___ F.3d ___), the Ninth Circuit held that a bank robber who carried a gun, but who never alluded to it or intentionally displayed it, but who briefly and inadvertently displayed it during a robvbery, did not "use" a gun within the meaning of 18 USC §2113(d), and he should have only been convicted for unarmed bank robbery under 18 USC §2113(a). In U.S. v. Arnett (2003) (4/24/03; 03 C.D.O.S. 3417; ___ F.3d ___), the Ninth Circuit held that the doctrine of collateral estoppel could be applied against a criminal defendant who sought to re-litigate an affirmative defense in his second trial. Here, the issue was whether the California district court erred in holding that the defendant was collaterally estopped from relitigating an issue he litigated and lost in his Oregon trial—that the short-barreled shotgun he used in both the California and Oregon robberies was an “antique” under 18 USC §921(a)(3) and (a)(16)(A). The Court affirmed the California district court, holding that it correctly applied the doctrine of collateral estoppel in this instance. In Opinion Number 02-904, (3/28/03; 03 C.D.O.S. 2860) for some unknown reason, the acting District Attorney for Shasta County, Gregory Gaul, requested an opinion from the Attorney General's Office regarding whether a "fiber optice ambient light gathering system" (sic, a 3" florescent sight at the end of the barrel) was permissible equipment for a muzzle loader while hunting big game in California. The Deputy AG who wrote the opinion, Gregory Gonot, concluded that it was not legal to use a florescent sight on a muzzle loader, rather, only 'iron sights" could be used. Editor's Note: First of all, this opinion is a prime example of how government can simply waste taxpayer money over a genuinely dumbass issue. Secondly, Deputy AG Gonot is a total moron, as is acting DA Gaul. (I would be very surprised to learn if either of them hunted at all). If the State Fish & Game Dept. wants to outlaw florescent sights on muzzle loaders, it can easily do so by regulation. So far, Fish & Game has not promulgated such a regulation. Thirdly, what is wrong with a florescent sight anyway? There's no "fair chase" issue here, and it appears ridiculous to opine that it is illegal to use a perfectly good devise that may help some in taking game in a clean, ethical and entirely and proper manner. In People v. Wallace* (2003) 105 CA4th 250; 129 CR2d 292, the Court of Appeals held that after the defendant was convicted of being an ex-felon in possession of a firearm (PC §§667(e) and 12021), the trial court found two prior conviction allegations- both strikes under the "Three Strikes" law- to be true, but struck the second strike in the interests of justice, sentencing the defendant as if he had only one strike against him. (PC §1385.) The defendant was then sentenced to 16 months in state prison for this offense. The People appealed, contending that the trial court abused its discretion when it struck the prior conviction that constituted defendant's second strike. (PC §995) The Court of Appeals agreed, holding that the trial court abused its discretion when it struck his second strike in the interests of justice and sentenced the defendant as if he had only one strike against him. Because a "no contest" plea admitted all elements of prior offense that constituted the second strike, "sufficiency" of evidence adduced at preliminary hearing was irrelevant as factor supporting exercise of discretion to strike the prior "strike". *Editor's Note: This case was granted review by the Supreme Court on 3/26/03. Thus, the case is not citable for the proposition that the trial court abused its discretion in striking a "prior" strike. In People v. Anson (2002) 105 CA4th 22; 129 CR2d 124, the Court of Appeal held that a transient individual who lived out of his camper truck, was not entitled to the statutory exemption of possessing a firearm within 1000 feet of an elementary school on the basis that his camper was a "residence" pursuant to PC §626.9 (the Gun-Free School Zone Act of 1995). The court determined that his camper was instead a "vehicle" fully capable of being driven from place to place. As such, the court reasoned that notwithstanding the prosecutor and the defendant had stipulated the camper to be the defendant's "residence," to hold that this same camper qualified for the "residential" exemption would essentially nullify the law. In People v. Chambers (2002) 104 CA4th 1047; 128 CR2d 679 , the Court of Appeal ruled that for purposes of sentencing on the basis of an enhancement allegation in the People's Information (here, the allegation of the personal use of a firearm in the commission of a robbery by the defendant) the trial court, as well as the sentencing court, could make that finding implicitly as opposed to expressly. Punishment for a firearm use enhancement may be imposed only if the trier of fact finds the enhancement allegation to be true. PC §12022.53, subdivision (j), provides: "For the penalties in this section to apply, the existence of any fact required . . . shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact." §1158a, subdivision (a) provides that, when a defendant is alleged to have used a firearm within the meaning of §12022.5, "the jury, if they find a verdict of guilty of the offense with which the defendant is charged, or any offense included therein, must also find whether or not the defendant was armed as charged in the count to which the plea of not guilty was entered. A verdict of the jury upon a charge of using a firearm may be: ' We find the charge of being armed contained in the _______ count true' or ' We find the charge of being armed contained in the _______ count not true . . . ." The requirements as to form for a jury verdict substantially apply when trial is by the court: "When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes." (1167.) The Court of Appeal held that the controlling authority was People v. Clair (1992) 2 Cal.4th 629. In Clair the defendant was charged with murder and two counts of burglary. The information alleged that he had been previously convicted of a serious felony. The murder and burglary charges were tried to a jury, which returned guilty verdicts. The defendant waived jury on the prior serious felony allegation and consented to trial by the court. The trial court did not expressly find that the prior allegation was true, but it imposed a five-year prison term for the prior serious felony conviction. Clair rejected the contention "that the sentence on the serious-felony enhancement must be set aside because no finding on the underlying prior-conviction appears." (Id., at p. 691, fn. 17.) Clair reasoned: "At sentencing, the court impliedly - but sufficiently - rendered a finding of true as to the allegation when it imposed an enhancement expressly for the un derlying prior conviction." (Ibid.) In People v. Kramer (2002) 29 C4th 720; 59 P.3d 738; 128 CR2d 407, the California Supreme Court held that in cases where one act constitues multiple crimes, under the 1997 amendment to Penal Code §654, the sentencing court must consider any sentencing enhancements in determining the longest sentence that can be imposed. Thus, here, where an assault with a firearm charge, plus the sentencing enhancement of personal use of a firearm, carried a longer potential term of imprisonment than did defendant's other conviction (firing into an occupied motor vehicle), the sentencing court is required on remand to impose a sentence for the longest possible term, i.e, the assault charge with the enhancement. In People v. Miceli (2002) 104 CA4th 256; 127 CR2d 888, the court conluded that a defendant may commit assault with a semiautomatic firearm by using it as a club or bludgeon, regardless of whether it is presently loaded or operable as a semiautomatic. Therefore the court rejected defendant’s contention that assault with a semiautomatic firearm must be supported by evidence that the firearm contained at least one bullet (i.e., that it must be loaded) Because it was not disputed that defendant’s Glock firearm was a semiautomatic, the defendant was convicted of assualt with a semiautomatic weapon by using it as a bludgeon. In People v. Killebrew (2002) 103 CA4th 644; 126 CR2d 876, a case involving the use of expert testimony about criminal street gangs, the defendant was convicted of conspiring to possess a handgun, a felony. (PC §§182, 12031(a)(2)(C).) Although the defendant did not have a handgun in his possession, it was alleged that he was part of a conspiracy to possess the handgun. At trial, a police officer testified as an expert on gangs to establish not only defendant's membership in a criminal street gang, but his subjective knowledge and intent to possess the handgun. Defendant was convicted for allegedly being part of a group of gang members who were going to retaliate against rival gang members for a drive-by shooting. Defendant was not a passenger in either of two vehicles police officers pulled over, but he was found at a taco stand near a third vehicle and where a weapon was found hidden next to a dumpster. The trial court allowed a police officer to testify as an expert that defendant was a gang member and that when one gang member possessed a gun, every other gang member in the car knew of the gun and constructively possessed it. The Court of Appeal reversed, holding that the trial court erred by allowing the officer's testimony since, it was not testimony about the culture and habit of gangs, rather, it was merely opinion testimony about the subjective knowledge and intent of each occupant of the vehicle. The Court stated, "Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. (Evid. Code, §805.) This rule, however, does not permit the expert to express any opinion he or she may have. (Piscitelli v. Friedenberg (2001) 87 CA4th 953, 972.) “‘Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided …. There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for a decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.’” (Summers v. A.L. Gilbert Co. (1999) 69 CA4th 1155, 1182-1183.) The officer's testimony was the only evidence offered to establish the elements of the crime and, therefore, was improper opinion and should have been excluded. The court also held that there was no evidence showing that defendant was in one of the vehicles. "The People’s case was based on speculation: Was there a fourth passenger in the Chrysler and, if so, who was that person? Speculation is not substantial evidence. (People v. Waidla (2000) 22 C4th 690, 735; 996 P.2d 46; 94 CR2d 396) The judgment must be reversed for lack of evidence." "Provocative Act" Murder Theory In People v. Cervantes (2001) 26 C4th 860; 29 P.3d 225; 111 CR2d 148, the California Supreme Court held that in a case where the defendant and fellow gang members attended another gang's party, and where the two gangs were not then enemies with one another, and where the defendant non-fatally shot a gang member trying to defuse an argument over a woman, in the ensuing melee which erupted a gang member whose party it was, shot to death one of defendant's gang members. The California Supreme Court held that the evidence was insufficient as a matter of law to support defendant's conviction for murder by provocative act. The essential element of proximate cause was not established, as the defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence that the victim's unidentified murderers were even present at the scene of the provocative act, that is, in a position to actually witness defendant shoot the intervening gang member. Also, the defendant himself was not present at the scene where the victim was fatally shot. Thus, the fatal shooting was an independent intervening act for which the defendant could not be convicted. In a companion case to Cervantes, supra, in People v. Sanchez (2001) the California Supreme Court held that in a case where the defendant was a gang member and had been driven by a rival gang member's house three times, and ultimately shot at the rival gang member, the defendant and his rival were both charged with first degree murder in the death of an innocent bystander. Although the guns used were never recovered and the ballistics evidence could not establish with certainty which shooter had fired the single fatal bullet, both defendants were convicted of murder. On appeal, the Supreme Court held that under the cicumstances concurrent causation can be invoked in a single-fatal bullet case and defendant Sanchez could, indeed, be convicted of murder even though it could not be determined who fired the single fatal bullet, and even though his rival had previously been convicted of the same murder, as there was sufficient evidence to support defendant's conviction under either of the two first degree murder theories advanced against him at trial, to wit: (1) premeditation and murder by means of intentionally discharging a firearm from a motor vehicle with specific intent to inflict death, or (2) defendant's act of engaging his rival in a gun battle and attempting to murder him was a substantial concurrent and, hence, proximate cause of the bystander's death by means of applying the doctrine of transferred intent. The Court held that the "provacative act" theory played little role, if any, under these facts. Assault - Taking That "Warning" Shot In People v. Williams (2001) 26 C4th 779; 29 P.3d 197; 111 CR2d 114, the California Supreme Court stated that some thirty years ago it examined the mental state for assault and concluded assault requires only a general criminal intent and not a specific intent to cause injury. (People v. Rocha (1971) 3 C3d 893, 899 (Rocha).) In 1994, it reaffirmed Rocha and reiterated that assault was a general intent crime. (People v. Colantuono (1994) 7 C4th 206, 215-216. The Court further explained that the “mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.” (Colantuono at p. 214.) In Williams, the Court once again clarified the mental state for assault and held that "assault requires actual knowledge of the facts sufficient to establish that the defendant’s act by its nature will probably and directly result in injury to another." Thus, assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only required an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature would probably and directly result in the application of physical force against another. Although the trial court's instruction could have permitted a conviction premised on facts the defendant did not actually know, any error was harmless because here the defendant admitted loading his shotgun with two shells, and then firing a "warning" shot at a truck at a time when the defendant knew the driver was in the near vicinity. Editor's Note: Williams, supra, (originally a Third District decision) was subsequently criticized by the Third DCA in People v. Wright (2002) 100 CA4th 703; 123 CR2d 494, wherein ther Court of Appeal stated, "In the published portion of the opinion we show the Williams interpretation of section 240 is based upon a mistake of fact which produced an error of law." The Court went on to hold that, "Nonetheless, we are bound by Williams. We shall conclude the defendant was properly convicted of a negligent assault on the facts of the case." (See, also, People v. Smith (1997) 57 CA4th 1470, 1484.) In People
v Duarte (2000) 24 C4th 603; 12 P.3d 1110; 101 CR2d
701, the Californai Supreme Court reversed defendant's convictions for
shooting at an In In re Jorge M. (2000) 23 C4th 866; 4 P.3d 297; 98 CR2d 466, the California Supreme Court employed a new test and determined the requisite mens rea (criminal intent) to support a conviction for possession of an "assault weapon" under PC §12280, which statutorily lacks a specific mens rea element. Here, the Court made the astonishing choice of imposing a civil negligence standard as the mental state (mens rea) requirement necessary for obtaining a conviction under the statute (that a conviction be obtainable upon proof of negligent failure to know, as well as actual knowledge of, the weapon’s salient characteristics; the People must prove, that is, that a defendant charged with possessing an unregistered assault weapon either knew, or reasonably should have known, the characteristics of the weapon bringing it within the registration requirements of the AWCA.) Editor's Note: But see, Staples v. U.S. (1994) 511 U.S. 600 (requiring actual knowledge that the firearm was, in fact, a "machinegun" under the National Firearms Act (26 USC §5845(a)(6).) In In re Tameka C. (2000) 22 C4th 190; 990 P.2d 603; 91 CR2d 730, the California Supreme Court held that when a defendant commits an assault with a firearm upon an intended victim, and with the same shot injures an unintended victim, thereby committing another assault, the sentence for each separate assault may be enhanced by a separate firearm-use enhancement (PC §12022.5(a)). Firearms The term firearm includes rifles, shotguns, revolvers, pistols, or any other device designed to be used as a weapon from which a projectile is expelled by the force of any explosion or other form of combustion. The term firearm includes the frame or receiver of any such weapon. (PC §12001.) For the purposes of sections 12025 and 12031, the term firearm also includes any rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes. (PC §12001.) Handguns A handgun is any pistol, revolver, or other firearm capable of being concealed upon the person that has a barrel length of less than 16 inches. The term also applies to any device that has a barrel length of 16 inches or more which is designed to be interchanged with a barrel less than 16 inches. (PC §12001(a).) Exceptions The term firearm does not apply to a federally defined antique firearm for the purpose of dealer licensing requirements, sales or loans between private parties, or requirements to obtain a Basic Firearms Safety Certificate pursuant to Penal Code sections 12070, 12071, subdivisions (b) (c) or (d) of 12072, or 12073. The term firearm does not apply to federally defined curio or relic long guns over 50 years old for the purpose of transfers between private parties. (PC §§12001(e), 12078(t)(2).) PROHIBITED FIREARMS, AMMUNITION, AND RELATED DEVICES In California, it is unlawful for any person to own, possess, lend, manufacture, import, sell, or offer to sell any short-barreled shotgun or short-barreled rifle, any firearm that is not immediately recognizable as a firearm, any camouflaging firearm container, any cane or wallet gun, any undetectable firearm, any ammunition that contains or consists of a flechette dart, any bullet that contains or carries an explosive agent, any zip gun, any unconventional pistol, any multiburst trigger activator, any nunchaku, any metal knuckles, any belt buckle knife, any leaded cane, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any ballistic knife, any shuriken, any writing pen knife, and any metal military practice hand-grenade or metal replica hand-grenade. It is unlawful for any person to carry a concealed dirk or dagger. (PC §§ 12001.5, 12020(a)(1).) It is unlawful for any person to manufacture, cause to be manufactured, import into the state, keep for sale, or offer or expose for sale, or give or lend, any large-capacity magazine. (PC §12020(a)(2).) A short-barreled shotgun means a firearm designed or redesigned to fire a fixed shotgun shell that has a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches; any weapon made from a shotgun which meets the barrel length or overall length criteria; any device which may be restored to fire a fixed shotgun shell and which meets the barrel length or overall length criteria; or any part or combination of parts designed and intended to convert a device into a short-barreled shotgun or which would permit an individual to readily assemble a short-barreled shotgun. (PC §12020(c)(1).) A short-barreled rifle means a rifle having a barrel length of less than 16 inches or an overall length of less than 26 inches; any weapon made from a rifle which meets the barrel length or overall length criteria; any device which may be restored to fire a fixed cartridge and which meets the barrel length or overall length criteria; or any part or combination of parts designed and intended to convert a device into a short-barreled rifle or which would permit an individual to readily assemble a short-barreled rifle. (PC §12020(c)(2).) A camouflaging firearm container means a container designed to enclose a firearm, making it unrecognizable, and is capable of being fired by external controls while enclosed in the container. The term excludes camouflage gear used in hunting. (PC §12020(c)(9).) A cane gun means any firearm mounted or enclosed in a stick, staff, rod, crutch, or similar device designed to be, or capable of being used as an aid in walking, if such firearm may be fired while mounted or enclosed therein. (PC §12020(c)(5).) A wallet gun means any firearm mounted or enclosed in a case resembling a wallet, designed to be, or capable of being carried in a pocket or purse, if such firearm may be fired while mounted or enclosed in such case. (PC §12020(c)(4).) An undetectable firearm means any weapon (after grips, stocks and magazines are removed) which is less detectable than the security test devices which are used to calibrate and set walk-through metal detectors; or a weapon which has a major component made of barium sulfate or other compounds which do not generate an image accurately depicting the component on the x-ray machines commonly used at airports. (PC §12020(c)(22).) A flechette dart means a dart one inch in length that is capable of being fired from a firearm and has tail fins that take up approximately five-sixteenths of an inch of the body. (PC §12020(c)(6).) A zip gun means a weapon or device made or altered to expel a projectile by the force of an explosion or other form of combustion which was not imported by a person licensed pursuant to federal law, not designed as a firearm by a manufacturer licensed pursuant to federal law and on which no federal tax was paid nor exemption from federal tax granted. (PC §12020(c)(10).) An unconventional pistol means a firearm that does not have a rifled bore and has a barrel or barrels less than 18 inches in length and an overall length of less than 26 inches. (PC §12020(c)(12).) A multiburst trigger activator means a device designed or redesigned to be attached to a semiautomatic firearm which allows the firearm to discharge two or more shots in a burst by activating the device, or a manual or power-driven trigger activating device constructed so that when attached to a semiautomatic firearm it increases the rate of fire of that firearm. (PC §12020(c)(23).) The term bullet containing or carrying an explosive agent does not include tracer ammunition manufactured for use in shotguns. (PC §12020(b)(6).) A dirk or dagger means a knife or other instrument with or without a hand-guard that is capable of ready use as a stabbing weapon that may inflict great bodily injury. A non-locking folding knife, a folding knife not prohibited by section 653k, or a pocketknife, is considered a dirk or dagger only if the blade of the knife is exposed and locked into position. (PC §12020(c)(24).) A nunchaku means an instrument consisting of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire, or chain. (PC §12020(c)(3).) A metal knuckle means a device or instrument made wholly or partially of metal to be worn in or on the hand while striking a blow to increase the force of the impact. (PC §12020(c)(7).) A ballistic knife means a device that propels a knifelike blade as a projectile by means of a coil spring, elastic material, or compressed gas. (PC §12020(c)(8).) A shuriken means an instrument without handles consisting of metal having three or more radiating points with one or more sharp edges, used as a weapon for throwing. (PC §12020(c)(11).) A belt buckle knife means a knife which is an integral part of a belt buckle and has a blade of a least 2-1/2 inches in length. (PC §12020(c)(13).) A lipstick case knife means a knife enclosed within and made an integral part of a lipstick case. (PC §12020(c)(14).) A cane sword means a cane, stick, staff, rod, pole, or similar device having a concealed blade that may be used as a sword. (PC §12020(c)(15).) A shobi-zue means a staff, crutch, rod, or pole concealing a knife or blade which may be exposed by a flip of the wrist or mechanical action. (PC §12020(c)(16).) A leaded cane means a staff, crutch, stock, rod, pole or similar device unnaturally weighted with lead. (PC §12020(c)(17).) An air gauge knife means a device that appears to be an air gauge, but has a concealed pointed metallic shaft designed to be a stabbing instrument when exposed by mechanical action or gravity, and locks into place when extended. (PC §12020(c)(18).) A writing pen knife means a device that appears to be a writing pen, but has a concealed pointed metallic shaft designed to be a stabbing instrument when exposed by mechanical action or gravity, and locks into place when extended. (PC §12020(c)(19).) A metal military practice hand-grenade or metal replica hand-grenade means a device that is readily usable as a grenade or may be easily modified for ready use as a grenade, and does not include any plastic toy hand-grenade or any metal military practice hand-grenade that is a relic, curio, memorabilia, or display item that has been filled with a permanent inert substance or has otherwise been permanently altered in a manner that prevents ready modification for use as a grenade. (PC §§12020(a), 12020(b)(15).) A large capacity magazine means any ammunition feeding device with the capacity to accept more than 10 rounds, but shall not be construed to include a feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds, any tubular magazine that is contained in a lever-action firearm, or any .22 caliber tube ammunition feeding device. (PC §12020(c)(25).) Exceptions The general prohibition in this section does not apply to any instrument, ammunition, weapon, or device other than a short-barreled rifle or short-barreled shotgun that is found and possessed by a person who is not prohibited by law from possessing firearms or ammunition and who possessed the instrument, ammunition, weapon, or device no longer than was necessary to transport it to a law enforcement agency for disposition according to law. In the case of a firearm, prior notice must be given to the law enforcement agency prior to transporting it to that agency for disposition, and the firearm must be transported unloaded and in a locked container, as defined by PC §12026.2(d). (PC §§12020(b)(15) and (16).) The general prohibition in this section does not include antique firearms. An antique firearm is defined as any firearm that was manufactured in or before 1898 and is not designed or redesigned to use rimfire or conventional center fire ignition with fixed ammunition. This includes any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, regardless of the date of manufacture. Firearms manufactured in or before 1898 that use fixed ammunition which is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade are also considered antiques. (PC §12020(b)(5).) This general prohibition also does not include any firearm or ammunition that is a curio or relic as defined in section 178.11 of Title 27 of the Code of Federal Regulations and is in the possession of a person permitted to possess such items pursuant to Chapter 44 (commencing with section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (PC §12020(b)(7).) Machineguns It is unlawful for any person to sell, offer for sale, possess, or knowingly transport any machinegun. (PC §12220.) The term machinegun means any weapon that shoots or is designed to shoot more than one shot automatically (without manual reloading) by a single function of the trigger. The term also includes any frame or receiver of a machinegun and any part or combination of parts designed and intended for use in converting an otherwise legal weapon into a machinegun. The term also includes any weapon deemed by the federal Bureau of Alcohol, Tobacco, and Firearms as readily convertible to a machinegun under Chapter 53 (commencing with section 5801) of Title 26 of the USC. (PC §12200.) These prohibitions do not apply to (a) persons having a permit or license issued by the California Department of Justice to possess, transport, or sell machineguns (PC §§12230, 12231, 12233, 12250); or (b) federal or state military or naval forces or law enforcement officers acting within the scope of their duties. (PC §12201.) Assault Weapons It is a felony for any person to manufacture, distribute, transport, import into California, or keep or offer for sale, or give or lend, an assault weapon. (PC §12280.) Any person who lawfully possesses an assault weapon must have registered the firearm with the Department of Justice. (PC §12285.) The term assault weapon means the following designated semiautomatic firearms as defined by PC §12276: (a) All of the following specified rifles: (1) All AK series including, but not limited to, the models identified as follows: (A) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S. (B) Norinco 56, 56S, 84S, and 86S. (C) Poly Technologies AKS and AK47. (D) MAADI AK47 and ARM. (2) UZI and Galil. (3) Beretta AR-70. (4) CETME Sporter. (5) Colt AR-15 series. (6) Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR110C. (7) Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter. (8) MAS 223. (9) HK-91, HK-93, HK-94, and HK-PSG-1. (10) The following MAC types: (A) RPB Industries Inc, sM10 and sM11. (B) SWD Incorporated M11. (11) SKS with detachable magazine. (12) SIG AMT, PE-57, SG 550, and SG 551. (13) Springfield Armory BM59 and SAR-48. (14) Sterling MK-6. (15) Steyer AUG. (16) Valmet M62S, M71S, and M78S. 10 California Firearms Laws 2002 (17) Armalite AR-180. (18) Bushmaster Assault Rifle. (19) Calico M-900. (20) J&R ENG M-68. (21) Weaver Arms Nighthawk. (b) All of the following specified pistols: (1) UZI. (2) Encom MP-9 and MP-45. (3) The following MAC types: (A) RPB Industries Inc, sM10 and sM11. (B) SWD Incorporated M-11. (C) Advance Armament Inc, M-11. (D) Military Armament Corp. Ingram M-11. (4) Intratec TEC-9. (5) Sites Spectre. (6) Sterling MK-7. (7) Calico M-950. (8) Bushmaster Pistol. (c) All of the following specified shotguns: (1) Franchi SPAS 12 and LAW 12. (2) Striker 12. (3) The Streetsweeper type S/S Inc, SS/12. (d) Any firearm declared by the court pursuant to section 12276.5 to be an assault weapon that is specified as an assault weapon in a list promulgated pursuant to section 12276.5. (e) The term series includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer. (f) This section is declaratory of existing law, as amended, and a clarification of the law and the Legislatures intent which bans the weapons enumerated in this section, the weapons included in the list promulgated by the Attorney General pursuant to section 12276.5, and any other models which are only variations of those weapons with minor differences, regardless of the anufacturer. The Legislature has defined assault weapons as the types, series, and models listed in this section because it was the most effective way to identify and restrict a specific class of semiautomatic weapons.
The term assault weapon also means any firearm that falls under one of the following definitions pursuant to PC §12276.1:
(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable agazine and any one of the following: (A) A pistol grip that protrudes conspicuously beneath the action of the weapon. (B) A thumbhole stock. (C) A folding or telescoping stock. (D) A grenade launcher or flare launcher. (E) A flash suppressor. (F) A forward pistol grip. (2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds. (3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches. (4) A semiautomatic pistol that has the capacity to accept a detachable magazine and any one of the following: (A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer. (B) A second handgrip. (C) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, except a slide that encloses the barrel. (D) The capacity to accept a detachable magazine at some location outside of the pistol grip. (5) A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds. (6) A semiautomatic shotgun that has both of the following: (A) A folding or telescoping stock. (B) A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip. (7) A semiautomatic shotgun that has the ability to accept a detachable magazine. (8) Any shotgun with a revolving cylinder. The following definitions shall apply relative to defining assault weapons: (1) Magazine shall mean any ammunition feeding device. (2) Capacity to accept more than 10 rounds shall mean capable of accommodating more than 10 rounds, but shall not be construed to include a feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds. (3) Antique firearm means any firearm manufactured prior to January 1, 1899.
The term assault weapon does not include any of the following:
(1) Any antique firearm. (2) The following pistols sanctioned by the International Olympic Committee and by USA Shooting, the national governing body for international shooting competition in the United States, and that are used for Olympic target shooting purposes. (PC §12276.1.):
MANUFACTURER MODEL CALIBER
BENELLI MP90 .22LR BENELLI MP90 .32 S&W LONG BENELLI MP95 .22LR BENELLI MP95 .32 S&W LONG HAMMERLI 280 .22LR HAMMERLI 280 .32 S&W LONG HAMMERLI SP20 .22LR HAMMERLI SP20 .32 S&W LONG PARDINI GPO .22 SHORT PARDINI GP-SCHUMANN .22 SHORT PARDINI HP .32 S&W LONG PARDINI MP .32 S&W LONG PARDINI SP .22LR PARDINI SPE .22LR WALTHER GSP .22LR WALTHER GSP .32 S&W LONG WALTHER OSP .22 SHORT WALTHER OSP-2000 .22 SHORT
The term assault weapon also means any firearm specified by the Department of Justice as an AK or AR-15 series weapon as a result of Penal Code section 12276(e) and the California Supreme Court Case Kasler v. Lockyer, effective August 16, 2000. As a result of this Penal Code section and court decision, all AK and AR-15 series rifles are assault weapons regardless of their characteristics. The Department of Justice maintains a roster of firearm makes and models which the Attorney General has identified as AK and AR-15 series weapons. At the time of this printing, this list includes the following: AK Series Weapons American Arms AK-C 47 AK-F 39 AK-F 47 AK-Y 39 Arsenal SLG (all) SLR (all) B-West AK-47 (all) Hesse Arms Model 47 (all) Wieger STG 940 Rifle Inter Ordnance - Monroe, NC AK-47 (all) M-97 RPK Kalashnikov USA Hunter Rifle / Saiga MAADI CO * AK 47 * ARM MISR (all) MISTR (all) Made in China * 56 * 56S * 84S * 86S * AK * AK47 * AKM * AKS MARS Pistol Mitchell Arms, Inc. AK-47 (all) AK-47 Cal .308 (all) M-76 M-90 RPK Norinco * 56 * 56 S 81 S (all) * 84 S 86 (all) * 86 S AK-47 (all) Hunter Rifle MAK 90 NHM 90, 90-2, 91 Sport RPK Rifle Ohio Ordnance Works (o.o.w.) AK-74 ROMAK 991 Poly Technologies * AK47 * AKS Valmet 76 S Hunter Rifle WUM WUM (all) AR-15 Series Weapons American Spirit ASA Model Armalite AR 10 (all) Golden Eagle M15 (all) Bushmaster XM15 (all) Colt * AR-15 (all) Law Enforcement (6920) Match Target (all) Sporter (all) Dalphon B.F.D. DPMS Panther (all) Eagle Arms EA-15 A2 H-BAR EA-15 E1 M15 (all) Frankford Arsenal AR-15 (all) Hesse Arms HAR 15A2 (all) Knights RAS (all) SR-15 (all) SR-25 (all) Les Baer Ultimate AR (all) Olympic Arms AR-15 Car-97 PCR (all) Ordnance, Inc. AR-15 Palmetto SGA (all) Professional Ordnance, Inc. Carbon 15 Pistol Carbon 15 Rifle PWA All Models Rock River Arms, Inc. Car A2 Car A4 Flattop LE Tactical Carbine NM A2 - DCM Legal Standard A-2 Standard A-4 Flattop Wilson Combat AR-15 * Required to be registered on or before March 31, 1992
The most current roster is available at the Firearms Divisions website at http://caag.state.ca.us/firearms/awguide/. Subsequently, as AK and AR-15 series weapons are identified, they will be added to the roster. Please note that the list provided in this publication is not comprehensive and may have been updated since this printing. Individuals have an obligation to inquire if they believe their firearm is an AK or AR-15 series assault weapon.
Exceptions
´ PC §12280(f) provides an exception for the sale to, purchase by, or possession of assault weapons by specified law enforcement agencies and military or naval forces for use in the discharge of their official duties. The law permits possession and use of these weapons by sworn members of these agencies when on duty and the use is within the scope of their duties. ´ PC §12280(o) provides limited exceptions for registered assault weapons while on a target range or while attending an exhibition, display, or firearms educational project which is sponsored by law enforcement or a nationally or state recognized entity that promotes firearm proficiency or education. ´ PC §12280(p) provides an exception for out-of-state residents who bring assault weapons into the state if attending an organized match or competition conducted on a target range, club, etc., for the purpose of shooting targets. ´ PC §12285(c)(6) provides an exception for registered assault weapons while on publicly owned land if the possession and use of an assault weapon is specifically permitted by the managing agency of the land. ´ PC §12280(g) allows specified peace officers, with the express authorization of their agency head, to personally retain assault weapons that they have possessed or owned prior to January 1, 2002, provided they register those firearms as assault weapons with the Department of Justice on or before April 1, 2002. ´ PC §12280(g) provides an exception for the delivery, transfer, or sale to, or possession of an assault weapon by peace officer members of specified agencies with the express authorization of their employing agencies. For this exception to apply, the peace officer must register the firearm as an assault weapon with the Department of Justice within 90 days of the date of acquisition.
Armor-Piercing Bullets
It is unlawful for any person to manufacture, sell, or knowingly possess or transport handgun ammunition designed primarily to penetrate metal or armor. (PC §§12320, 12321.)
Handgun ammunition means ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, as defined in subdivision (a) of section 12001, notwithstanding that the ammunition may also be used in some rifles. ( PC §12323(a).)
Handgun ammunition designed primarily to penetrate metal or armor means any ammunition, except a shotgun shell or ammunition primarily designed for use in rifles, that is designed primarily to penetrate a body vest or body shield. (PC §12323(b).)
Body vest or shield means any bullet-resistant material intended to provide ballistic and trauma protection for the wearer or holder. (PC §12323(c).)
Exceptions
The prohibition against possessing, manufacturing, etc., armor piercing ammunition does not apply to the following (PC §12322):
´ Members of the federal or state militia while on duty and engaged within the scope of their duties. ´ Any police agency or forensic laboratory. ´ Persons who hold valid permits issued pursuant to PC §12305. ´ The possession of handgun ammunition designed primarily to penetrate metal or armor by a person who found the ammunition, if he or she is not prohibited from possessing firearms or ammunition pursuant to section 12021, 12021.1 or paragraph (1) of subdivision (b) of section 12316 of this code or section 8100 or 8103 of the Welfare and Institutions Code and is transporting the ammunition to a law enforcement agency for disposition according to law.
Larger Caliber Weapons and Tracer Ammunition
It is unlawful to possess any of the following:
´ Any projectile containing any explosive, incendiary material, or any other chemical substance including, but not limited to, that commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns. ´ Any bomb, grenade, explosive missile, or similar device or any launching device therefor. ´ Any weapon of greater than .60-caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun or shotgun ammunition. ´ Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any projectile or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for such device, except for devices designed primarily for emergency or distress signaling purposes. (PC §§12301, 12303.)
These prohibitions do not apply to members of the federal or state militia, peace officers listed in PC §§830.1 or 830.2, any peace officer in the Department of Justice authorized by the Attorney General, or firefighters while on duty and acting within the scope and course of their employment, or to persons having a permit issued by the California Department of Justice. (PC §§12302, 12305.)
Firearm Silencers
A silencer is defined as a device designed, used, or intended for use in silencing, diminishing or muffling the report of a firearm including any combination of parts designed or redesigned and intended for use in fabricating or assembling a silencer, or any part intended only for use in assembling or fabricating a silencer. (PC §12500.) It is a felony for any person, firm, or corporation within this state to possess any silencer for firearms. This prohibition does not apply to any peace officer listed in P §830.1, or to military or naval forces of this state or of the United States in the official discharge of their duties, nor does it apply to the manufacture, possession, transportation or sale to agencies listed in PC §830.1, or to military or naval forces of this state or of the United States by dealers registered under Chapter 53, commencing with section 5801 of Title 26 of the United States Code. (PC §§12520, 12501.)
Sniperscopes
A sniperscope is defined as a device made or adapted for use on a firearm, which enables the operator to detect objects during nighttime through the use of a projected infrared light source and an electronic telescope. (PC §468.) Any person who buys, sells, receives, disposes of, conceals, or possesses a sniperscope is guilty of a misdemeanor. This prohibition does not apply to authorized use or possession of sniperscopes by members of the armed forces or peace officers, and does not prohibit use or possession solely for scientific research or educational purposes. (PC §468.)
Boobytraps
Boobytraps are concealed or camouflaged devices designed to cause great bodily injury when triggered by an unsuspecting person. They include guns, ammunition, or explosives attached to trip wires, sharpened stakes, and lines or wires with hooks attached. It is unlawful to possess such devices with the intent to use them as boobytraps and anyone who assembles, maintains, places, or causes such devices to be placed is guilty of a felony. (PC §12355.)
PERSONS INELIGIBLE TO POSSESS FIREARMS AND AMMUNITION
Persons Convicted of Felonies or Other Specified Crimes
It is unlawful for any person who (a) has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or (b) is addicted to any narcotic drug to own or have in his or her possession, custody, or control any firearm. (PC §12021(a).)
It is unlawful for any person who is prohibited from possessing firearms, to possess ammunition. (PC §12316(b).)
A felony conviction refers to a conviction of an offense that can only result in felony punishment under California law, or any sentence to a federal correctional facility for more than 30 days, or a fine of more than $1,000, or both. (PC §12021(f).)
Any person convicted of any of the following crimes specified in PC §§12001.6 and 12021.1, whether as a felony or misdemeanor, may not lawfully possess or have under his or her custody or control any firearm:
´ Murder or voluntary manslaughter. ´ Mayhem. ´ Rape. ´ Sodomy or oral copulation by force, violence, duress, menace, or threat of great bodily harm. ´ Lewd acts on a child under the age of 14. ´ Any felony punishable by death or imprisonment in the state prison for life. ´ Any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, that has been charged and proven, or any felony in which the defendant uses a firearm which has been charged and proven. ´ Attempted murder. ´ Assault with intent to commit rape or robbery. ´ Assault with a deadly weapon or instrument on a peace officer. ´ Assault by a life prisoner on a non-inmate. ´ Assault with a deadly weapon by an inmate. ´ Arson. ´ Exploding a destructive device or any explosive with intent to injure or murder. ´ Exploding a destructive device or any explosive causing great bodily injury. ´ Robbery. ´ Kidnapping. ´ Taking of a hostage by a state prison inmate. ´ Attempting to commit a felony punishable by death or imprisonment in the state prison for life. ´ Any felony in which the defendant personally used a dangerous or deadly weapon. ´ Escape from a state prison by use of force or violence. ´ Assault with a deadly weapon or force likely to produce great bodily injury. ´ Any attempt to commit any of the above crimes other than an assault. ´ Assault upon a person with a firearm. ´ Shooting at an inhabited dwelling house or occupied building. NOTE: This offense is committed even though no person was actually inside the specified structure at the time of the shooting.
´ Drawing, exhibiting, or unlawfully using any handgun or firearm in a rude, angry, or threatening manner in the presence of a peace officer regardless of whether the firearm is loaded. ´ Carjacking. ´ Two or more convictions for drawing, exhibiting, or unlawfully using any handgun or firearm in a rude, angry, or threatening manner in the presence of another regardless of whether the firearm is loaded.
Persons Convicted of Misdemeanor Violations of Specified Offenses
Any person convicted of a misdemeanor violation for one or more of the following offenses is prohibited from owning, possessing or having under his or her custody or control any firearm within 10 years of the conviction (PC §12021(c)(1)):
´ Threatening public officers and employees and school officials. (PC §71.) ´ Threatening certain public officials, appointees, judges, staff or their immediate families. (PC §76.) ´ Possession of a deadly weapon with intent to commit an assault (PC §12024.) ´ Possession of a deadly weapon with the intent to intimidate a witness. (PC §136.5.) ´ Unauthorized possession/transportation of a machinegun. (PC §12220.) ´ Threatening witnesses, victims, or informants. (PC §140.) ´ Obstructing or delaying an officer or emergency medical technician and removing or attempting to remove a firearm from these individuals. (PC §148(d).) ´ Unauthorized possession of a weapon in a courtroom, courthouse or court building, or at a public meeting. (PC §171b.) ´ Bringing into or possessing a loaded firearm within the state capitol, legislative offices, etc. (PC §171c.) ´ Taking into or possessing loaded firearms within the Governors Mansion or residence or other constitutional office, etc. (PC §171d.) ´ Supplying firearms to any street gang member for use in street gang activity. (PC §186.28.) ´ Assault. (PC §§240, 241.) ´ Battery. (PC §§242, 243.) ´ Assault with a stun gun or taser weapon. (PC §244.5.) ´ Assault with a deadly weapon or force likely to cause great bodily injury. (PC §245.) ´ Assault with a deadly weapon or instrument, by any means likely to produce great bodily injury, or with a stun gun or taser, on a school employee engaged in the performance of duties. (PC §245.5.) ´ Shooting at an occupied house, building, vehicle, housecar or camper. (PC §246.) ´ Discharging a firearm in a grossly negligent manner. (PC §246.3.) ´ Shooting at an unoccupied aircraft, motor vehicle, or uninhabited building or dwelling house. (PC §247.) ´ Drawing or exhibiting any deadly weapon, including a firearm, in a rude or threatening manner. (PC §417.) ´ Selling, manufacturing, or distributing imitation firearms. (PC §417.2.) ´ Drawing or exhibiting a firearm or other deadly weapon with the intentional infliction of serious bodily injury. (PC §417.6.) ´ Bringing into or possessing firearms upon or within public or private schools, playgrounds and youth centers. (PC §626.9.) ´ Willful infliction of corporal injury of a spouse or cohabitant. (PC §273.5.) ´ Willful violation of a court order to prevent domestic violence. (PC §273.6.) ´ Stalking. (PC §646.9.) ´ Carrying a loaded firearm with the intent to commit a felony. (PC §12023.) ´ Driver or owner of any vehicle who knowingly permits another person to discharge a firearm from the vehicle or any person who willfully and maliciously discharges a firearm from a motor vehicle. (PC §§12034(b) and (d).) ´ Criminal possession of a firearm. (PC §12040.) ´ Selling a concealable firearm to a minor. (PC §12072(b).) ´ Possessing handgun ammunition designed to penetrate metal or armor. (PC §12320.) ´ Carrying a concealed or loaded firearm or other deadly weapon or wearing a peace officer uniform while picketing, carrying a concealed loaded weapon, or wearing a peace officer uniform. (PC §12590.) ´ Possession of a firearm by a person ineligible to possess firearms because of his or her mental history. (Welfare and Institutions Code §8100). ´ Providing a firearm or deadly weapon to a person who is prohibited from possessing firearms because of his or her mental history. (Welfare and Institutions Code §8101). ´ Possession of a firearm by a person ineligible to possess firearms because of specific mental prohibitions. (Welfare and Institutions Code § 8103). ´ Bringing or sending firearms or other contraband into a juvenile detention facility. (Welfare and Institutions Code § 871.5) ´ Bringing or sending firearms or other contraband into youth authority institutions. (Welfare and Institutions Code § 1001.5.) ´ Violating Penal Code section 12072 involving sales and transfers of firearms, including: - selling or furnishing a firearm to any person whom the individual has reason to believe is within a prohibited class; - selling or furnishing a handgun to a minor; - selling or furnishing a firearm to any person whom the seller knows, or has cause to believe, is not intended to be the actual purchaser or transferee; - acquiring a firearm for the purpose of providing it to a prohibited individual; - selling or transferring a firearm without having the transaction processed through a licensed dealer or law enforcement agency; - committing any act of collusion relating to a Basic Firearms Safety Certificate or a Handgun Safety Certificate. ´ Intimidating a witness or victim. (PC §136.1.) ´ Threatening to cause death or great bodily injury to another person. (PC § 422)
Persons Prohibited From Possession, Purchase of Firearms As a Condition of Probation
Any person convicted of any crime for which the express condition of probation prohibits or restricts the possession of firearms may not lawfully own, possess, control, receive or purchase a firearm for the duration of the probation. (PC §12021(d).)
Persons Subject to a Protective Order
Persons who are subject to a protective order issued by a court pursuant to section 6218 of the Family Code, may not own, possess, purchase, or receive a firearm for the duration of the order. (PC §12021(g).) This includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
´ A court-issued order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. (Family Code § 6320.) ´ A court-issued order to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. (Family Code § 6321.) ´ A court-issued order enjoining a party from other specified behaviors as determined by that court. (Family Code § 6322.)
In certain instances, the court, upon issuance of a protective order may additionally require the respondent to relinquish any firearms in that person's immediate possession or control for the duration of the protective order. (Family Code § 6389(c).)
Persons Subject to a Temporary Restraining Order
Persons who are subject to a temporary restraining order issued pursuant to section 527.6 or 527.8 of the Civil Code for harassing behavior may not own, possess, purchase or receive a firearm for the duration of the order. (PC §12021(g).)
Persons Subject to Juvenile Court Law
Any person subject to juvenile court law and adjudged a ward of the juvenile court as described in Welfare and Institutions Code section 707(b), and has committed any of the following offenses, shall not own, possess, or have under his or her custody or control any firearm until reaching 30 years of age (PC §12021(e)):
´ Murder. ´ Arson that causes great bodily injury or arson of an inhabited structure or property. (PC §§451(a) and (b).) ´ Robbery while armed with a dangerous or deadly weapon. ´ Rape with force or violence or threat of great bodily harm. ´ Sodomy by force, violence, duress, menace, or threat of great bodily harm. ´ Lewd or lascivious act on a child under the age of 14. (PC §288(b).) ´ Oral copulation by force, violence, duress, menace, or threat of great bodily harm. ´ Sexual assault with a foreign object. (PC §289.) ´ Kidnapping for ransom. ´ Kidnapping for purpose of robbery, rape, spousal rape, etc. (PC §209(b)(1).) ´ Kidnapping with bodily harm. ´ Assault with intent to murder or attempted murder. ´ Assault with a firearm or destructive device. ´ Assault by any means of force likely to produce great bodily injury. ´ Discharge of a firearm into an inhabited or occupied building. ´ Specified crimes against persons 60 years of age or older, blind persons, paraplegics, or quadriplegics as described in PC §1203.09. ´ Use of a firearm in the commission or attempted commission of a felony; discharge of a firearm at an occupied motor vehicle causing great bodily injury or death; use of a firearm to commit the controlled substances violations described in PC §§12022.5 or 12022.53. ´ Any felony offense in which the minor personally used a weapon described in PC §12020(a). ´ Felony intimidation of a witness and victim as described in PC §136.1 or influencing the testimony or information given to a law enforcement official as described in PC §137. ´ Manufacturing, compounding, or selling one-half ounce or more of any salt or solution of a controlled substance specified in Health and Safety Code section 11055(e). ´ Possessing for sale, or selling a substance containing 28.5 grams or more of cocaine as specified in PC §1203.073. ´ Any of the specified violent felonies listed in PC §667.5(c) committed for the benefit, direction, or association with any criminal street gang as described in PC §186.22(b). ´ Intentionally inflicting great bodily injury on an employee of a juvenile facility during an escape by the use of force or violence in violation of Welfare and Institutions Code section 871(b). ´ Torture as described in PC §§206 and 206.1. ´ Aggravated mayhem as described in PC §205. ´ Carjacking as described in PC §215 while armed with a dangerous or deadly weapon. ´ Kidnapping as punishable in PC §209.5. ´ Willfully and maliciously discharging a firearm from a motor vehicle at another person other than an occupant of a motor vehicle. ´ Exploding, igniting, or attempting to explode or ignite any destructive device or explosive with intent to commit murder. ´ Any of the offenses listed in PC §12021(c)(1).
Mental Patients, Mentally Disordered Sex Offenders, Persons Adjudicated a Danger to Others, Persons Incompetent to Stand Trial, Gravely Disabled Conservatees, and Persons Taken Into Custody as a Danger to Self or Others Because of a Mental Disorder
No person who is receiving inpatient treatment because the person is a danger to self or others may have in his or her possession or under his or her custody, or control, nor may he or she purchase or receive, or attempt to purchase or receive, any firearm. This applies even though the person has consented to the treatment. (Welfare and Institutions Code §8100.)
No person who communicates to a licensed psychotherapist a serious threat of physical violence against a victim may purchase, possess, control, or have custody of any firearms for a period of six months after the threat is reported to a local law enforcement agency. Attempts to purchase, possess, or control firearms are also prohibited. Persons prohibited under this section may petition a court for restoration of firearms privileges. (Welfare and Institutions Code § 8100(b).)
No person adjudicated by a court of any state to be (a) a danger to others as a result of mental disorder or mental illness, or (b) a mentally disordered sex offender shall have in his or her possession, custody, or control any firearm. (Welfare and Institutions Code §8103(a).)
No person found not guilty by reason of insanity of specified crimes in any state shall have in his or her possession, custody, or control any firearm. (Welfare and Institutions Code §8103(b).)
No person found by a court to be mentally incompetent to stand trial on a criminal charge shall have in his or her possession, custody, or control any firearm. (Welfare and Institutions Code §8103(d).)
No person placed under conservatorship by a court, because the person is gravely disabled, shall have in his or her possession, custody, or control any firearm, where prohibited by the court. (Welfare and Institutions Code § 8103(e).)
No person taken into custody, assessed, and admitted to a designated facility pursuant to Welfare and Institutions Code section 5150 because that person is a danger to himself, herself, or others shall own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility. (Welfare and Institutions Code §8103(f).)
No person who has been certified for intensive treatment pursuant to Welfare and Institutions Code sections 5250, 5260 or 5270.15 shall own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility. (Welfare and Institutions Code § 8103(g).)
NOTE: Any person who knowingly supplies, sells, gives, or otherwise allows such an individual to possess or control any firearm or deadly weapon is guilty of a felony or an alternate felony/misdemeanor, respectively. (Welfare and Institutions Code § 8101.)
Justifiable Possession of a Firearm by Certain Prohibited Classes
Any person found to have committed an offense enumerated in PC §2021(a) through (e), is prohibited from owning, possessing, or having under his or her custody or control, any firearm. A violation of subdivision (a), (b), (c), (d), or (e) is justifiable where all of the following conditions are met:
´ The person found the firearm or took the firearm from the person who was committing the crime against him or her. ´ The person possessed the firearm no longer than was necessary to deliver or transport the firearm to a law enforcement agency for that agencys disposition according to law. ´ If the firearm was transported to a law enforcement agency, it was transported in accordance with paragraph (18) of subdivision (a) of §12026.2. ´ If the firearm is being transported to a law enforcement agency, the person transporting the firearm has given prior notice to the law enforcement agency that he or she is transporting the firearm to the law enforcement agency for disposition according to law.
Upon the trial for violating subdivision (a), (b), (c), (d), or (e), the trier of fact shall determine whether the defendant was acting within the provisions of the exemption created by this subdivision. The defendant has the burden of proving by a preponderance of the evidence that he or she comes within the provisions of the exemption created by this subdivision. (PC §12021(h).)
THE USE OF FIREARMS IN DEFENSE OF LIFE AND PROPERTY
The question of whether use of a firearm is justified for self-defense cannot be reduced to a simple list of factors. This section is based on the instructions generally given to the jury in a criminal case where self-defense is claimed and illustrates the general rules regarding use of firearms in self-defense.
Use of a Firearm or Other Deadly Force in Defense of Life and Body
The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, provided that a reasonable person in the same or similar situation would believe that (a) the person killed intended to commit a forcible and life-threatening crime; (b) there was imminent danger of such crime being accomplished; and (c) the person acted under the belief that such force was necessary to save himself or herself or another from death or a forcible and life-threatening crime. Murder, mayhem, rape, and robbery are examples of forcible and life-threatening crimes.
Self-Defense Against Assault
It is lawful for a person being assaulted to defend himself or herself from attack if he or she has reasonable grounds for believing, and does in fact believe, that he or she will suffer bodily injury. In doing so, he or she may use such force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent imminent injury. An assault with fists does not justify use of a deadly weapon in self-defense unless the person being assaulted believes, and a reasonable person in the same or similar circumstances would also believe, that the assault is likely to inflict great bodily injury. It is lawful for a person who has grounds for believing, and does in fact believe, that bodily injury is about to be inflicted upon another to protect the victim from attack. In so doing, the person may use such force as reasonably necessary to prevent the injury.
NOTE: The use of excessive force to counter an assault may result in civil or criminal penalties.
Protecting Ones Home
A person may defend his or her home against anyone who attempts to enter in a violent manner intending violence to any person in the home. The amount of force that may be used in resisting such entry is limited to that which would appear necessary to a reasonable person in the same or similar circumstances to resist the violent entry. One is not bound to retreat, even though a retreat might safely be made. One may resist force with force, increasing it in proportion to the intruders persistence and violence, if the circumstances apparent to the occupant would cause a reasonable person in the same or similar situation to fear for his or her safety.
The occupant may use a firearm when resisting the intruders attempt to commit a forcible and life-threatening crime against anyone in the home provided that a reasonable person in the same or similar situation would believe that (a) the intruder intends to commit a forcible and life-threatening crime; (b) there is imminent danger of such crime being accomplished; and (c) the occupant acts under the belief that use of a firearm is necessary to save himself or herself or another from death or great bodily injury. Murder, mayhem, rape, and robbery are examples of forcible and life-threatening crimes. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry had occurred. Great bodily injury means a significant or substantial physical injury. (PC §198.5.)
NOTE: If the presumption is rebutted by contrary evidence, the occupant may be criminally liable for an unlawful assault or homicide.
Defense of Property
The lawful occupant of real property has the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, the occupant may use force to eject the trespasser. The amount of force that may be used to eject a trespasser is limited to that which a reasonable person would believe to be necessary under the same or similar circumstances.
Limitations on the Use of Force in Self-Defense
The right of self-defense ceases when there is no further danger from an assailant. Thus, where a person attacked under circumstances initially justifying self-defense renders the attacker incapable of inflicting further injuries, the law of self-defense ceases and no further force may be used.
The right of self-defense is not initially available to a person who assaults another. However, if such person attempts to stop further combat and clearly informs the adversary of his or her desire for peace but the opponent nevertheless continues the fight, the right of self-defense returns and is the same as the right of any other person being assaulted.
POSSESSION AND TRANSPORTATION OF CONCEALED WEAPONS
Carrying a Concealed Handgun Without a License on One's Person or Concealed in a Vehicle
Pursuant to PC §12025, a person is guilty of carrying a concealed firearm when he or she does any of the following:
´ Carries concealed within any vehicle which is under his or her control, any pistol, revolver, or other firearm capable of being concealed upon the person. ´ Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. ´ Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.
NOTE: A firearm carried openly in a belt holster is not considered concealed as it applies to the above prohibition. (PC §12025(e).)
Section 12025 does not apply to or affect any of the following:
´ Any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not prohibited from owning or possessing firearms pursuant to Penal Code sections 12021 or 12021.1 or section 8100 or 8101 of the Welfare and Institutions Code, may carry, either openly or concealed, anywhere within his or her place of business, or on private property owned or lawfully possessed by him or her any pistol, revolver, or other firearm capable of being concealed upon the person. A permit or license to purchase, own, possess, keep, or carry is not required under these circumstances. (PC §12026.) ´ The transportation or carrying of any pistol, revolver, or other firearm capable of being concealed upon the person by any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and is not within the excepted classes prescribed by PC §§12021 or 12021.1 or Welfare and Institutions Code sections 8100 or 8103, provided that the following applies: - the firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle other than the utility or glove compartment; and - when the firearm is carried by the person to or from any motor vehicle for any lawful purpose, the firearm must be contained in a locked container while being physically carried. (PC §12026.1.)
Section 12025 does not apply to or affect the lawful transportation or possession of a firearm under specific circumstances, including, but not limited to, the following:
´ The transportation of a firearm by a person who finds the firearm in order to comply with Article 1 (commencing with section 2080) of Chapter 4 of Division 3 of the Civil Code as it pertains to that firearm and if that firearm is being transported to a law enforcement agency, the person gives prior notice to the law enforcement agency that he or she is transporting the firearm to the law enforcement agency. (PC §12026.2(a)(17).) ´ The transportation of a firearm by a person who finds the firearm, and is transporting it to a law enforcement agency for disposition according to law, if he or she gives prior notice to the law enforcement agency that he or she is transporting the firearm to the law enforcement agency for disposition according to law. Firearms must be transported unloaded and in a locked container and the course of travel shall include only those deviations between authorized locations, as necessary. (PC §§12026.2(a)(17), (18) and (b).) ´ The carrying of a pistol, revolver, or other firearm capable of being concealed upon the person by a person who is authorized to carry that weapon in a concealed manner pursuant to Article 3 (commencing with §12050) of the Penal Code. ´ Members of any club or organization organized for the purpose of practicing shooting at targets upon established target ranges, whether public or private, while the members are using concealable firearms upon the target ranges. ´ Authorized peace officers, retired peace officers, and retired federal officers or agents as defined in PC §§830.1, 830.2, 830.5, 12027(a) and 12031(b). ´ Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from such hunting or fishing expeditions. ´ The possession or transportation of unloaded pistols, revolvers, or other firearms capable of being concealed upon the person as merchandise by a person who is licensed in the business of manufacturing, repairing, or dealing in firearms. ´ The carrying of unloaded pistols, revolvers, or other firearms capable of being concealed upon the person by duly authorized military or civil organizations while parading, or the members thereof when going to and from the places of meeting of their respective organizations. ´ Guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state. ´ Transportation of unloaded firearms by a person operating a licensed common carrier or an authorized agent or employee thereof when transported in conformance with applicable federal law.
Notwithstanding the exceptions cited in Section 5. Loaded Firearms, individuals should still not carry or transport loaded firearms when going to or from sanctioned activities. The firearm should be unloaded and placed in the trunk of the vehicle, or if the vehicle has no trunk, placed in a locked container. (PC §§12026.1, 12027.)
Licenses to Carry Concealed Weapons
A license to carry a pistol, revolver, or other firearm capable of being concealed upon the person may be granted to qualified residents of a county by the sheriff or to qualified residents of a city by the chief or other head of the municipal police department of that city. Such licenses are issued only after a finding that the applicant is of good moral character, that good cause exists for such a license, and the applicant is not prohibited from possessing firearms. Unless otherwise restricted, such a license is valid throughout the state. Such a license may be valid for any amount of time not to exceed two years from the date of issuance, unless issued to a judge or magistrate (valid for up to three years) or specified custodial employees or reserve peace officers (valid for up to four years). (PC §12050.) A license to carry a pistol, revolver, or other firearm capable of being concealed upon the person may be granted by the sheriff of a county to an applicant who spends a substantial amount of time employed within that county. Such a license is valid only in the county issued and is valid for any period of time not to exceed 90 days from the date of issuance. (PC §12050.) Where the population of the county is less than 200,000 persons, the licensing authority may issue a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, loaded and exposed. (PC §12050.) If a California licensee has a need to travel armed in another state, he or she should contact authorities in the other state prior to leaving to determine if the license will be honored.
LOADED FIREARMS
Loaded Firearms in a Public Place
It is unlawful to carry a loaded firearm on ones person or in a vehicle while in any public place, on any public street, or in any place where it is unlawful to discharge a firearm. (PC §12031(a)(1).) A firearm is deemed loaded when there is a live cartridge or shell in, or attached in any manner to, the firearm, including, but not limited to, the firing chamber, magazine, or clip. A muzzle-loading firearm is deemed loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder. (PC §12031(g).) For the purposes of PC §12023 (commission or attempted commission of a felony while armed with a loaded firearm), a firearm is deemed loaded when both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person. It is unlawful for the driver of any motor vehicle, or the owner of any motor vehicle irrespective of whether the owner is occupying the vehicle, to knowingly permit any person to carry a loaded firearm in the vehicle in violation of PC §12031, or Fish and Game Code §2006. (PC §12034.)
In order to determine whether a firearm is loaded, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place, on any public street, or in any prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to these provisions is, in itself, grounds for arrest. (PC §12031(e).)
Exceptions
The prohibition does not apply to:
´ Any person hunting in an area where possession and hunting is otherwise lawful. (PC §12031(i).) ´ Any person who carries a loaded firearm while engaged in the act of making or attempting to make a lawful arrest, provided such possession is otherwise lawful. (PC §12031(k).) ´ Any person carrying a loaded firearm, if otherwise lawful, when he or she reasonably believes his or her person or property is in immediate, grave danger and that the carrying of the loaded firearm is necessary for preservation of the person or property during the time interval following notification of the local law enforcement agency when reasonably possible, and prior to the arrival of its assistance. (PC §12031)(j)(1).) ´ Any of the following persons, provided they meet all criteria for such exemption, such as possession of special occupational licenses or completion of the required firearms training provided for in Penal Code sections 12031(b), (c), and (d): - Active or honorably retired peace officers. - Members of the military forces of this state or the United States engaged in the performance of their duties. - Target shooters at target ranges and shooting club members while hunting on the club premises, provided possession and use of the firearm is otherwise lawful. - Holders of concealed handgun licenses. - Armored vehicle guards. - Animal control officers or zookeepers. - Guards or messengers of common carriers, banks, and other financial institutions. - Guards of contract carriers operating armored vehicles. - Private investigators, private patrol operators, and alarm company operators. - Uniformed security guards or night watchpersons employed by any public agency. - Uniformed security guards and uniformed alarm agents of an alarm company operator. - Uniformed employees of private patrol operators. NOTE: Peace officers and honorably retired peace officers having properly endorsed identification certificates may carry a concealed weapon at any time. Otherwise, these exemptions apply only when the firearm is carried within the scope of the exempted conduct, such as hunting or target shooting, or within the course and scope of assigned duties, such as an armored vehicle guard transporting money for his employer. A person who carries a loaded firearm outside the limits of the applicable exemption is in violation of the law, notwithstanding his or her possession of an occupational license or firearms training certificate. (PC §12031(b).)
Firearms in the Home or Business
Any person over the age of 18 who is not prohibited from possessing firearms, and if otherwise lawful, may keep and carry a firearm or have a firearm loaded at his or her place of residence, temporary residence, campsite, or on private property owned or lawfully possessed by the person. (Penal Code §§ 12026, 12031(h) and (l).) Any person engaged in any lawful business (including nonprofit organizations) or any officer, employee, or agent authorized for lawful purposes connected with the business may possess a loaded firearm within the place of business if that person is over 18 years of age and not otherwise prohibited from possessing firearms. (PC §§12026, 12031(h).)
NOTE: A persons place of business, residence, temporary residence, campsite, or private property may be located in areas where possession of handguns or firearms, whether loaded or unloaded, is otherwise prohibited. Such areas include, but are not limited to, state, federal, or private game reserves or refuges, federal and state parks, and other public lands. Questions regarding the applicability of such laws should be directed to your sheriff or chief of police, federal or state fish and game officers, or federal or state park rangers.
Carrying Unregistered Loaded Handguns
Any person who commits the crime of carrying a concealed handgun and ammunition for that handgun on his/her person or in his/her vehicle may be subject to a felony enhancement if the handgun is not on file (registered) in the Department of Justices Automated Firearms System. (PC §12025.)
Any person who commits the crime of carrying a loaded (not necessarily concealed) handgun on his/her person in a prohibited place may be guilty of a felony if the handgun is not on file (registered) in the Department of Justices Automated Firearms System. (PC §12031.)
NOTE: Handgun dealer record of sale transactions occurring before 1979 generally are not registered in the Departments Automated Firearms System. However, these records are on file with the Department of Justice. Upon individual request, the Attorney General shall place records of pre-1979 transfers of handguns into the Automated Firearms System. (PC §11106.) Gun Confiscation
Gun confiscation laws in California are numerous, but Californias Welfare & Institutions Code §8100, et seq., provides for the confiscation of any guns or deadly weapons from anyone deemed to be 5150 (a mental patient), or someone who has confided in a psychologist that he or she intends to harm another person (serious physical threat of harm to an identifiable person). In addition, The state has recently made it a priority to protect domestic violence victims and the public by taking firearms out of the hands of violent criminals, spousal abusers and others who have been deemed a threat to public safety. In conjunction with the BATF (federal agents) the Attorney General's Firearms Division uses the state's criminal history records to identify individuals who are prohibited from possessing any firearms. Specifically, agents are using court records and DOJ databases to identify individuals who illegally possess a firearm due to a felony conviction, domestic violence restraining order or mental health report declaring them a danger to themselves or others.
After identifying the most dangerous of these individuals, DOJ agents obtain search and arrest warrants, notify local law enforcement that they will be serving these warrants and invite the local agencies as well as agents from the federal BATF to participate. More than 40 percent of the individuals arrested/identified for being in the illegal possession of weapons were prohibited from possessing firearms because of a domestic violence conviction or restraining order.
FEDERAL GUN LAWS
Federal guns laws are distinct and separate from state guns laws. Federal guns laws are found in, among other statutes, 18 USC §921, et seq. Currently before the U.S. Supreme Court is a gun case involving a former federally licensed gun who lost his license as a result of inadvertently forgetting to remove a box of ammunition from his vehicle when he attempted to cross into Mexico from the U.S. As a result of this oversight, Thomas Bean was prosecuted and convicted in Mexico of the illegal importation of ammunition, a felony. Bean was convicted and incarcerated in Mexico, and later exchanged with US officials and placed in a federal penitentiary for one additional month before being released. Although apparently an otherwise law-abiding citizen, Bean was now a convicted felon. Accordingly, as a convicted felon, under 18 USC § 922(g)(1) Bean lost all rights to possess firearms. §925(c) of the statute, however, provides a means for relief from the firearms disabilities. Upon completion of his period of supervision in July, 1999, Bean petitioned the BATF for such relief so that he might return to his business as a gun dealer. However, due to non-funding by Congress, the BATF was specifically precluded from using any of its appropriated funds to fulfill its responsibilities under the statute (§925(c)). Thus, BATF sent Bean a notice that it would not act upon his §925(c) request due to the congressional action. Bean then petitioned the federal district court, contending that the BATF's letter denied his petition and exhausted his administrative remedies. When Bean subsequently filed suit in federal district court, the court granted him relief. On appeal before the U.S. 5th Circuit Court of Appeals, the case was confirmed. Now, the case is before the U.S. Supreme Court to determine whether, under federal law, a person who is convicted of a felony and who is prohibited from possessing firearms, may be granted relief by a federal district court after the Secretary of the Treasury, acting through the BATF, (who may grant relief from that prohibition if it is established to his satisfaction that certain preconditions are established - 18 USC §925(c)) fails to take any action, or denies the application for relief. Since 1992, every appropriations law for BATF has specified that BATF may not expend any appropriated funds to act upon applications for such relief. The question presented is whether, despite that appropriations provision barring BATF from acting on such applications, a federal district court has authority to grant relief from firearms disabilities to persons convicted of a felony per 18 USC §925(c). The case is US v. Bean; No. 01-704.
Obviously, all criminal offenses, whether charged as a felony or as a misdemeanor, are serious accusations and can result in substantial prisons sentences. Therefore, if you have been arrested for a criminal offense - either a misdemeanor or a felony - or if you know someone who has been arrested or who is being investigated for a criminal offense, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty interests in a court of law. As stated above, at the MAYO LAW CLINIC we vigorously defend individuals who are being investigated or who have been arrested for any number of criminal offenses. CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION
|
||
| RECENT CASE LAW |
 |
Copyright © Mayo Law Clinic,
All Rights Reserved Disclaimer | Privacy Statement |