California gun laws are notoriously complex and difficult to distinguish, even for attorneys who handle firearms-related cases on a regular basis. One key area of confusion that comes up is the distinction between loaded firearms and concealed firearms. Below, we discuss relevant codes regarding these distinctions.
Cal. Penal Code § 25400 – Concealed Weapons in Public or in a Vehicle
California Penal Code section 25400 governs concealed weapons in public places, including on one’s person or in a vehicle. It should be noted that whether or not a firearm is concealed has nothing to do with whether it is loaded – and thus an unloaded firearm that is concealed (hidden from view) is still a violation of the law under Penal Code section 25400.
The jury instruction governing concealed firearms under Penal Code section 25400 is included under CALCRIM Numbers 2520 through 2522, which states that in order to be guilty of the violation, the prosecution must prove:
- The defendant carried in a vehicle/caused to be concealed/carried on his person, a firearm capable of being concealed on the person;
- The defendant knew that he was carrying a firearm in a vehicle/ caused a firearm to be concealed in a vehicle/carried on his person a firearm;
- It was substantially concealed in a vehicle/on his person;
AND (if allegation related to concealed firearm in vehicle/causing firearm to be concealed in vehicle)
- [The defendant was directing or controlling the vehicle/in the vehicle at the time the firearm was concealed there].
- A firearm capable of being concealed on the person is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion and that has a barrel less than 16 inches in length.
- The defendant did not unlawfully carry a concealed firearm with in a vehicle if the defendant is, under Penal Code section 26510, a citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm:(1) The firearm is within a motor vehicle and it is locked in the vehicle’s trunk or in a locked container in the vehicle.(2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container.
- The People have the burden of proving beyond a reasonable doubt that the defendant unlawfully carried a concealed firearm within a vehicle. If the People have not met this burden, you must find the defendant not guilty of this crime.
CALCRIM 2520-22, Cal. Penal Code §§ 25400, 25610.
Notice that in order to be convicted of Concealed Firearm in a Vehicle/On One’s Person, there is absolutely no requirement that the firearm be loaded. The two may requirements are that the firearm be “capable of being concealed” on one’s person (in other words, a handgun), and that the firearm be “substantially concealed”, meaning hidden/covered. Thus, this statute does not apply to must rifles, shotguns, or long-guns whose barrels measure 16 inches or more in length and cannot be interchanged with a shorter barrel.
One of the key exceptions to Penal Code section 25400 is that the firearm was contained within “the vehicle’s trunk” or a “locked container in the vehicle”. A “locked container” is defined by Penal Code section 16850, which ” means a secure container that is fully enclosed and locked by a padlock, keylock, combination lock, or similar locking device. The term ‘locked container’ does not include the utility or glove compartment of a motor vehicle.”Cal. Penal Code § 16850. Thus, in order to be in compliance with the “locked box” exception, the firearm must be locked in a container from the outside, it is not enough that a gun lock may be placed on the firearm itself. Once the firearm is in the “locked box”, it can be lawfully carried directly between the vehicle and lawful locations, such as a residence, workplace, or shooting facility. See Cal. Penal Code § 25525.
There are other exceptions to the concealed firearm statute stated in Penal Code section 25400, such as those stated in Penal Code sections 25600, 25605, 25510, or 25450, but the application is more limited than the “locked box” exception that would apply to most lawful gun owners transporting their firearms to the range, employment, or residence.
Cal. Penal Code § 25850 and Fish & Game Code § 2006 – Loaded Weapons in Public or in a Vehicle/on Highway
California Penal Code section 25850 governs loaded weapons in public places, including on one’s person or in a vehicle. It should be noted that whether or not a firearm is a handgun, or “concealable firearm”, has nothing to do with violating this statute, and you can be arrested for this offense even if you are in possession of a rifle or shotgun if it is in a public area. While PC 25850 deals with incorporated public areas, section Fish & Game Code section 2006 directly applies to any shotgun or rifle which may be loaded in a vehicle which is “standing on or along or is being driven on or along any public highway or other way open to the public”. Cal. Fish & Game Code § 2006, emphasis added. Thus, you can violate this provision even while driving in remote areas open to the public where shooting or hunting may be lawful. Even if you merely let someone into your vehicle knowing that they possess a loaded firearm in violation of Penal Code section 25850 or Fish & Game Code section 2006, you can be punished as a misdemeanant under Penal Code section 26100. Cal. Penal Code §§ 26100. It is thus very important that you refrain from carrying loaded firearms on your person or in a vehicle, unless you meet one of the few exceptions to these statutes. Cal. Penal Code §§ 25900, 26000-26060.
The jury instruction governing concealed firearms under Penal Code section 25850 is included under CALCRIM Number 2530, which states that in order to be guilty of the violation, the prosecution must prove:
- The defendant carried a loaded firearm their person or in a
- The defendant knew that they were carrying a firearm;
- At that time, the defendant was in a public place or on a public
street in an incorporated city or in an unincorporated area where
it was unlawful to discharge a firearm.
- As used here, a firearm is loaded if there is an unexpended cartridge or
shell in the firing chamber or in either a magazine or clip attached to
the firearm. An unexpended cartridge or shell consists of a case that
holds a charge of powder and a bullet or shot.
CALCRIM 2530, Cal. Penal Code §§ 25850(a).
Under PC 25850(a), it is thus illegal to carry any loaded firearm in a vehicle or on one’s person if in an incorporated area of a town or city. “Loaded” includes an unchambered round that is in a magazine attached to a firearm.Exceptions do apply to PC 258050, such as those listed under Penal Code sections 25900 and 26000 et seq., and the DA must prove that the exceptions do not apply to a given case. Cal. Penal Code §§ 25900, 26000-26060.
Fish & Game Code section 2006 deals with any loaded shotgun or rifle in a vehicle on any type of public roadway (e.g., even unincorporated), but has some significant differences. Under F&G 2006, it is illegal to, “possess a loaded rifle or shotgun in any vehicle or conveyance or its attachments which is standing on or along or is being driven on or along any public highway or other way open to the public. A rifle or shotgun shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in the firing chamber but not when the only cartridges or shells are in the magazine.” Cal. Fish & Game Code § 2006, emphasis added. Therefore,you can be cited for having a loaded shotgun or rifle even on a public hunting road in extremely rural areas of the state. However, “loaded” under F&G 2006 means actually having a chambered round, and not just ammunition in the magazine attached to the rifle/shotgun.
Defending your Rights if Arrested for Firearms Violations
At Honeychurch & Giambona, we understand that the complexity of the California firearms laws can be difficult to fully understand , even for police officers and attorneys who deal with these codes regularly – and new laws are passed regularly in California to make matters even more daunting for responsible gun owners. Unfortunately, this means that law-abiding gun owners can be turned into potential criminals due to a misunderstanding of these technically complex laws, but at Honeychurch & Giambona, we take pride in defending gun owners against the Government in these cases. If you have been arrested or accused of a firearms related offense and want an attorney you can trust to defend your rights in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or in Napa and Yolo Counties, contact Honeychurch & Giambona today for a free consultation as to how we can present the best defense available to the facts of your case.