Articles Posted in Gun Charges

You went to court. You got the judge’s signature. You have an order directing the return of your firearms — but when you show up to reclaim them, the police tell you that you still need a Certificate of Eligibility from the California Department of Justice before they will hand anything over.

It feels like bureaucratic obstruction. In a sense, it is — but it’s obstruction that has a clear legal basis, and understanding why it exists is the first step toward navigating it successfully.

The Short Answer: A Court Order Answers a Property Question. The COE Answers a Safety Question.

A firearms charge in California can unravel your life in ways most people do not anticipate. Beyond the obvious criminal exposure, a conviction can end careers, revoke professional licenses, and permanently strip your Second Amendment rights. Understanding what prosecutors must prove — and where the law gives your defense attorney room to work — is the first step toward protecting yourself.

This overview covers the most common firearms offenses charged in Orange County and across California: unlawful possession, negligent or unlawful discharge, and the sentence-multiplying effect of a prior conviction on your record.

Firearms Possession Offenses

Under California Penal Code section 12022.5, when a person uses a firearm during the commission of a felony, he or she will almost certainly be charged not only with the felony conduct but also with an enhancement for the use of the firearm. The firearm need not be engaged or even operable for the enhancement to attach. If the defendant is convicted of the felony and the firearm enhancement is found or admitted to be true, the law requires the court to add an additional and consecutive term to the sentence. The term, depending on the type of firearm used and on the underlying crime, can range from 3 years imprisonment up to 20 years. The sentence is mandatory.

For example, a person convicted of felony assault with a non-assault weapon firearm will face a sentence of 2, 3 or 4 years in prison. But because he or she used a firearm, on top of that sentence, will be an additional 3, 4, or 10 years for use of the firearm. The court can choose the low, middle, or high term depending on a variety of factors but the court must order at least the low term.

Beginning January 1, 2018, changes to Penal Code section 12022.5 go into effect that will give more discretion to the court. The bill, which was signed into law by Governor Brown last week, that makes these changes was introduced after a California senator recognized the inequitable result when a 17-year-old was convicted for a drive-by shooting. The teen was in the car but denied that he was the one who shot the gun. Following the conviction, the judge had no choice but to sentence the teen to 25 years in prison because of the enhancement.

Penal Code Chapter 2.9C 1001.80 Pretrial Diversion For Firearm Offenses

The Legislature has introduced a new bill that will establish a pretrial diversion education program for those who are arrested for nonviolent misdemeanor or felony firearms offenses. The bill will specify the guidelines and define the criteria, application and procedures related to the diversion program. The bill will further define the procedural elements associated with a dismissal of charges and elimination of an arrest, for purposes of criminal records. Along with these parameters, the bill will authorize the imposition of any costs and fines associated with the diversion program.

In recognizing the complexity of California firearm statutes and implementing regulations and the confusion created thereby, it is being recommended that a pretrial diversion education program be created. This education program would be an alternative to prosecution for those who qualify, meaning nonviolent firearm offenses.

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As a Criminal Defense Lawyer, practicing law for more than 20 years in Orange County California, I am often asked about the law as it pertains to legally carrying a concealed weapon.   I have represented hundreds of individuals who have been charged with illegally carrying a concealed weapon.  While it is legal to buy, carry, and conceal a weapon in California, there are strict rules in doing so and strict rules as to who may obtain a license to do so.  Here is some information pertaining to applying for a license to carry a concealed weapon (CCW) and an explanation of who may and may not carry a concealed weapon.

California Penal Code sections 26150 and 26155 provides that a license to carry a pistol, revolver, or other firearm capable of being concealed, may be issued to an individual but,  a statewide standard application form must be completed and approved.

Who May be Issued a License:

California is not doing enough to keep firearms out of the hands of the mentally ill, according to a state audit released on October 24. The breakdown is a result of the state’s failure to report a person’s mental health status to the Department of Justice (DOJ).

Why is this happening, especially in light of the ever-increasing acts of gun violence involving the mental ill, begs closer examination. The first step in looking at this issue more closely begins with the Superior courts around the state. When an individual is convicted of certain crimes, he or she loses the right to carry or possess or own a firearm. Crimes like domestic violence, restraining order violations and enumerated assault and gun possession and use offenses will cause revocation of the right.

Theoretically, the courts should automatically notify the state Department of Justice. But of the 34 courts surveyed, most weren’t even aware they had the reporting obligation, nor did they send notice of convictions to the Mental Health unit at the DOJ. Over a three-year period, 2,300 prohibited individuals did not get reported. Some courts did submit reports but they were incomplete in different ways.