Gun Charges

Common California Gun Charges

Carrying a Concealed Firearm — PC § 25400

Carrying a concealed firearm on your person or in a vehicle without proper authorization. A wobbler in many circumstances, chargeable as a misdemeanor or felony depending on the facts and your record — though certain aggravating factors make it a straight felony.

Carrying a Loaded Firearm in Public — PC § 25850

Carrying a loaded firearm in a public place or on a public street. Also a wobbler in many circumstances, with prior convictions and other factors increasing exposure significantly.

Felon in Possession — PC § 29800

Possession of a firearm by someone with a prior felony conviction. A straight felony, and one of the most commonly charged firearm offenses in California.

Prohibited Person in Possession — PC § 29805 and related

Possession by someone prohibited for reasons other than a felony conviction. See the section below — many people don’t know they’re prohibited.

Possession of an Assault Weapon — PC § 30605

California regulates assault weapons and certain configurations and modifications. These cases frequently involve technical questions about whether a specific firearm meets the statutory definition, which is genuinely contestable.

Firearm Enhancements — PC § 12022.5 and § 12022.53

Allegations that a firearm was used in the commission of another offense. Section 12022.53 — often called “10-20-life” — escalates sharply: additional time for using a firearm, more for discharging it, and substantially more where discharge caused great bodily injury or death.

These enhancements can carry more time than the underlying offense. Fighting the enhancement is often the most consequential work in the case.

Gun Violence Restraining Orders — PC § 18100 et seq.

California’s “red flag” law allows a court to order the temporary surrender of firearms where someone is alleged to pose a danger. This is a civil proceeding, separate from any criminal case, but violating a GVRO is a crime — and the order itself makes you a prohibited person while it’s in effect.

GVROs can be contested. They’re frequently sought on thin evidence and during family conflicts.

You May Be Prohibited and Not Know It

Felony convictions are the obvious category. These are the ones that surprise people:

Misdemeanor domestic violence convictions. A qualifying conviction creates a 10-year prohibition under California law and a lifetime prohibition under federal law (the Lautenberg Amendment). The federal ban applies regardless of what California law says. → Domestic Violence

Mental health holds. A 72-hour involuntary hold under Welfare & Institutions Code § 5150 generally triggers a five-year firearm prohibition. Longer holds can result in longer prohibitions. Many people are never clearly told this when they’re discharged.

Restraining orders. Being the subject of a domestic violence restraining order, a GVRO, or certain other protective orders prohibits firearm possession for the duration.

Certain misdemeanor convictions. A specific list of misdemeanors under Penal Code § 29805 carries a 10-year prohibition — including some offenses people wouldn’t expect.

Probation conditions. Many probation grants include a firearm prohibition regardless of the underlying offense.

Juvenile adjudications. Certain adjudications carry prohibitions extending into adulthood.

If you’re unsure whether you’re prohibited, find out before a police contact answers the question for you.

What the Prosecution Has to Prove

Most California firearm possession charges require the prosecution to prove beyond a reasonable doubt that:

1. You possessed the firearm — either actually (on your person) or constructively;
2. You knew of its presence; and
3. You knew it was a firearm.

Charge-specific elements are added on top: concealment for § 25400, that the weapon was loaded and you were in a public place for § 25850, a qualifying prior for § 29800.

Constructive Possession — The Heart of Most Cases

You don’t have to be holding a gun to be charged with possessing it. Constructive possession means having knowledge of the firearm and the right to control it.

That sounds broad, and prosecutors use it broadly. But it requires proof of both knowledge and control, and that proof is frequently thin:

• A firearm found in a car with multiple occupants — whose is it, and who knew?
• A gun in a shared residence, a roommate’s room, or a common area
• A firearm in a borrowed vehicle
• A weapon belonging to a spouse or family member stored in a shared space

Mere proximity is not possession. Presence in the same car or house is not knowledge. The prosecution has to connect you specifically to that firearm, and in multi-occupant situations that connection is often assumed rather than proven.

Penalties and Consequences

Exposure varies substantially by charge:

• Wobbler offenses (§ 25400, § 25850 in many circumstances) carry county jail exposure as misdemeanors, state prison exposure as felonies
• Felon in possession (§ 29800) is a straight felony
• Enhancements under § 12022.53 add consecutive time that escalates dramatically with discharge and injury
• Some firearm offenses qualify as strikes, particularly where a weapon was used against a person

Beyond Sentencing

• Lifetime firearm prohibition following a felony conviction, under both state and federal law
• Immigration consequences. Firearm offenses are a specific deportability category under federal immigration law, separate from the moral turpitude analysis. For non-citizens these are among the most dangerous convictions.
• Professional licensing, particularly for security, law enforcement, and licensed trades
• Employment, including any position requiring a background check
• Concealed carry eligibility permanently affected
• Housing, where felony convictions affect applications

Defenses to Gun Charges

The Search Was Unlawful

This is where most gun cases are won. Firearms are almost always found during a stop, a detention, or a search — and each of those has legal requirements.

• Was there reasonable suspicion for the stop?
• Did the detention continue past its justification?
• Was there probable cause for the search, or a valid exception?
• Was consent actually voluntary, or was it acquiescence to authority?
• Did the search exceed the scope of the consent or the warrant?
• Was the vehicle search justified, or was it an inventory search used as a pretext?

If the firearm is suppressed, the case typically ends. A suppression motion under Penal Code § 1538.5 should be evaluated in every one of these cases.

You Didn’t Knowingly Possess It

Where the firearm was in a shared space, a borrowed car, or someone else’s belongings, the knowledge and control elements are genuinely contestable.

You Weren’t Prohibited

Prior convictions get miscategorized. Prohibitions expire. A conviction that was reduced under Penal Code § 17(b) or dismissed may change your status. Records contain errors.

The Firearm Doesn’t Meet the Definition

Assault weapon cases in particular turn on technical configuration questions where expert analysis matters. Inoperable firearms, antiques, and replicas raise definitional issues as well.

Lawful Transport

California permits transport of firearms under specific conditions involving unloaded status and locked containers. These rules are technical, and people are charged after believing in good faith that they complied. Where the circumstances actually satisfied the requirements, that’s a defense — and where they nearly did, it’s mitigation that matters in negotiation.

Momentary Possession

Brief possession for the purpose of disposal or to prevent harm may be a defense in narrow circumstances.

Self-Defense

Where the firearm was used defensively, self-defense applies to the use — though possession charges may remain separate.

Constitutional Challenges

Following New York State Rifle & Pistol Association v. Bruen (2022), Second Amendment challenges to specific firearm restrictions are a developing area, and California’s regulatory framework has been through significant change and continued litigation since.

This is not a general-purpose defense and most charges are not beaten on constitutional grounds. But it is an area where the law is actively moving, and whether a particular restriction is vulnerable is a question worth evaluating in the right case.

Why a Former Prosecutor Matters in a Gun Case

Firearm cases are, more than almost any other category, search-and-seizure cases. Whether the case survives depends on what the officer did before the gun was found — and prosecutors evaluate exactly that when deciding whether to file.

Polina Logrue made those assessments at the Orange County District Attorney’s Office. She knows which police reports describe a solid stop and which ones paper over a problem, which suppression issues prosecutors take seriously, and how the office weighs a case where the Fourth Amendment question is genuinely close.

She also knows how enhancement decisions get made — and that an enhancement attached at filing is not necessarily an enhancement the office will insist on.

Meet Polina →

Charged With a Gun Offense? Do This First

1. Do not consent to any search — of your vehicle, your home, your phone, or your belongings.
2. Do not make statements without counsel, including explanations about whose gun it is or why it was there.
3. Do not attempt to explain your way out of it. Officers are gathering evidence, and explanations about ownership and knowledge go directly to the elements.
4. Write down exactly how the stop and search happened — what was said, what you agreed to, how long it lasted, where officers went. This is the raw material for a suppression motion.
5. Tell your attorney immediately if you are not a U.S. citizen. Firearm offenses carry specific and severe immigration consequences.
6. Bring any documentation — purchase records, registration, permits, or anything relating to lawful possession or transport.
7. Call before charges are filed if possible.

Call (949) 758-4469 · Free Consultation

Related Charges

• Drug Crimes — firearms and drug charges are frequently filed together
• Gang Crimes — gang and firearm enhancements can stack
• Assault & Battery — including assault with a deadly weapon
• Domestic Violence — a conviction triggers firearm prohibitions
• Homicide — where § 12022.53 exposure is most severe
• Restraining Orders — including GVROs
• Expungements — and what they do and don’t restore