California gun charges can range from misdemeanors to serious felonies, and the consequences can increase substantially when prosecutors allege that a firearm was possessed, carried, used, or discharged during another crime. The exact charge, criminal history, manner in which the firearm was allegedly used, and any sentencing enhancements can dramatically affect the case.
California has some of the country’s most extensive firearm laws.
A gun-related arrest can arise from something as straightforward as an allegedly unlawfully carried firearm or from a much more serious allegation involving the use of a gun during another felony.
These cases can also involve overlapping charges and sentencing enhancements.
Understanding the difference between the underlying criminal offense and an enhancement alleged in connection with that offense is therefore important.
What Are Common California Gun Charges?
California firearm cases can involve allegations such as:
- Carrying a concealed firearm
- Carrying a loaded firearm in public
- Possession of a firearm by a prohibited person
- Possession of ammunition by a prohibited person
- Brandishing a firearm
- Assault with a firearm
- Possession of certain prohibited weapons
- Illegal firearm sales or transfers
- Possession of an unlawfully configured or unserialized firearm
- Firearm possession connected to another criminal offense
The potential consequences depend on the particular statute and circumstances.
For a broader overview of these cases, visit our Fresno Gun & Weapons Charges Attorney page.
Are California Gun Charges Misdemeanors or Felonies?
They can be either.
Some firearm offenses are misdemeanors. Others are felonies. Certain offenses can be prosecuted differently depending on factors specified by California law.
Those factors can include:
- The defendant’s criminal history
- Prior firearm convictions
- Whether the defendant was legally prohibited from possessing firearms
- Whether the firearm was stolen
- Whether the firearm was loaded
- Whether the firearm was allegedly used during another crime
- The particular firearm or weapon involved
It is therefore important to evaluate the actual statute charged rather than assuming that every gun offense carries the same classification or punishment.
What Is a Firearm Sentencing Enhancement?
A sentencing enhancement is not necessarily a separate crime.
Instead, an enhancement can increase the punishment imposed for an underlying criminal offense when prosecutors prove additional facts required by the enhancement statute.
California has several firearm-related enhancements.
Whether one applies depends on the underlying offense, what the defendant allegedly did with the firearm, and the specific enhancement alleged by the prosecution.
What Is California’s 10-20-Life Firearm Enhancement?
Penal Code section 12022.53 contains substantial firearm enhancements that can apply to specified felony offenses.
The law is sometimes referred to as California’s “10-20-life” firearm enhancement because qualifying conduct can potentially result in significant additional prison terms depending on whether a firearm was personally used, intentionally discharged, or caused qualifying great bodily injury or death.
However, the phrase “10-20-life” can oversimplify the current law.
Penal Code section 12022.53 applies only when its statutory requirements are satisfied, and California law now gives courts discretion in qualifying cases to strike or dismiss a firearm enhancement in the interest of justice.
The effect of an alleged enhancement therefore requires an analysis of both the underlying offense and the particular firearm allegation.
Does Every Crime Involving a Gun Trigger 10-20-Life?
No.
Penal Code section 12022.53 applies to specified felonies and circumstances identified by the statute.
The mere presence of a firearm does not automatically create a 10-, 20-, or 25-years-to-life enhancement.
Other firearm enhancements may apply to other offenses or conduct.
The prosecution must establish the elements required by the particular enhancement being alleged.
What Other California Firearm Enhancements Exist?
California law contains several other sentencing provisions involving firearms.
Depending on the underlying offense and circumstances, prosecutors may allege enhancements based on conduct such as:
- Being personally armed with a firearm during the commission of a felony
- Personally using a firearm during certain offenses
- Using particular types of firearms
- Inflicting great bodily injury through the discharge of a firearm
- Other firearm-related conduct specified by California law
The potential additional punishment varies according to the statute.
An enhancement should therefore be evaluated separately from the underlying criminal charge.
What About Guns and Gang Allegations?
Firearm allegations can become more complicated when prosecutors also allege that an offense was connected to a criminal street gang.
California’s gang laws have changed substantially over time.
Current gang allegations require the prosecution to establish the elements required by California law rather than merely showing that a defendant knows, associates with, or is a member of a gang.
Depending on the circumstances, prosecutors may attempt to allege both gang-related and firearm-related sentencing consequences.
For more information, visit our Fresno Gang Crime & Gang Enhancement Attorney page.
Can a Gun Conviction Cause You to Lose Your Firearm Rights?
Yes.
A firearm conviction can have consequences extending beyond jail, prison, fines, or probation.
California law prohibits firearm possession by people in numerous categories.
Penal Code section 29800 generally prohibits firearm possession by people with felony convictions and certain other prohibited statuses.
Penal Code section 29805 imposes firearm prohibitions following numerous specified misdemeanor convictions.
Some prohibitions are temporary while others can last for life.
Federal law can independently prohibit firearm possession as well.
For a detailed explanation, see our guide to California gun rights after a criminal conviction.
Does Every Felony Gun Charge Count as a Strike?
No.
A felony does not automatically become a strike merely because a firearm was involved.
California’s Three Strikes law applies to convictions that qualify as serious or violent felonies under California law.
Certain firearm-related offenses can qualify as strikes, and firearm use during another serious or violent felony can be relevant to the analysis.
But whether a conviction constitutes a strike depends on the particular offense and statutory circumstances.
It is therefore inaccurate to assume that every felony involving a firearm automatically creates a strike.
What Is Prohibited-Person Firearm Possession?
One common California gun charge involves possessing a firearm when the person is legally prohibited from doing so.
Penal Code section 29800 applies to several prohibited categories, including people with qualifying felony convictions.
Penal Code section 29805 applies to numerous misdemeanor-based firearm prohibitions.
Other firearm restrictions can arise from:
- Domestic violence convictions
- Restraining or protective orders
- Certain juvenile adjudications
- Conditions of probation
- Certain mental-health-related circumstances
- Federal law
California DOJ’s current prohibited-person framework includes both temporary and lifetime restrictions, so determining whether someone was actually prohibited can itself become an important issue in a criminal case.
Does the Gun Have to Belong to You?
Not necessarily.
Firearm possession does not require legal ownership.
California criminal cases can involve both actual and constructive possession.
Actual possession generally involves physically possessing the firearm.
Constructive possession can involve having control over a firearm even when it is not physically on the defendant’s person.
This becomes particularly important when police find a gun:
- Inside a vehicle occupied by several people
- Inside a shared residence
- Inside another person’s belongings
- In a location accessible to multiple people
Finding a firearm near someone does not automatically prove that person knowingly possessed or controlled it.
Can a Passenger Be Charged When Police Find a Gun in a Car?
Potentially, but presence inside the vehicle alone does not necessarily establish possession.
Important questions can include:
- Where the firearm was located
- Whether it was visible
- Whether the defendant knew it was present
- Who owned the vehicle
- Who owned the firearm
- Whether the defendant exercised control over the area where the firearm was found
- What statements were made to police
These factual issues can become central to the defense.
Can Police Search a Car for a Gun?
The Fourth Amendment protects against unreasonable searches and seizures.
Whether police were legally permitted to search a vehicle depends on the circumstances.
Potential issues can include:
- Whether the original traffic stop was lawful
- Whether the driver or another authorized person consented to the search
- Whether officers had probable cause
- Whether another exception to the warrant requirement applied
- Whether officers exceeded the lawful scope of the search
If police obtained a firearm through an unconstitutional search or seizure, the defense may seek suppression of the evidence.
What Are Defenses to California Gun Charges?
The available defense depends on the specific allegation.
Potential defenses and disputed issues can include:
- Lack of knowing possession
- The firearm belonged to someone else
- Lack of control over the location where the firearm was found
- Lawful possession or transportation
- A statutory exception or exemption
- Self-defense where relevant to the charged conduct
- Mistaken identity
- Insufficient evidence supporting a firearm enhancement
- Illegal search or seizure
The prosecution remains responsible for proving every required element of the criminal charge and any alleged enhancement.
What If You Are Accused of Carrying a Gun Illegally?
California has separate laws governing concealed firearms, loaded firearms, open carry, CCW licenses, and transportation.
A person may legally possess a firearm yet still face charges based on the manner in which it was allegedly carried.
For a detailed explanation, see our guide to California gun carry laws.
Talk to a Fresno Gun Charges Attorney
Gun cases can involve complicated questions about possession, searches, prohibited-person status, sentencing enhancements, and the relationship between the firearm allegation and another criminal charge.
Gregory W. Fox has more than 20 years of experience defending people accused of misdemeanor and felony offenses throughout Fresno and Central California.
If you have been arrested for a firearm or weapons offense, or prosecutors have alleged a firearm enhancement in another criminal case, call the Law Office of Gregory W. Fox at (559) 222-5800 to request a confidential consultation.
California Gun Carry Laws: Concealed, Loaded & Open Carry