Weapons Charges California

by | Nov 17, 2022 | Defense Lawyer

Weapons Charges California

I think the best way to consider the concept of weapons charges in San Francisco is to first understand the framework of the California weapons laws, and then you have to understand how the District Attorney of San Francisco approaches the prosecution of these crimes, in particular, as San Francisco is some jurisdiction, but California laws control what can be charged and what can’t be charged. 

In California, a weapon is defined in a few different ways

In California, a weapon is defined in a few different ways. Generally, if you want to know the definition of a weapon, you need to look at the Penal Code. Section 16,100 through 17,360 actually defines how weapons are categorized under the Penal Code. The most important thing to understand is that there are weapons generally, and there are firearms. So, firearms have their own set of laws, and every other weapon is enumerated separately.

In California, the Penal code defines deadly weapons, as it applies to certain weapons, certain weapons that are we call weapons per se, that by very nature are designed to be used as weapons, something like a knife, a sword, a blackjack nunchucks, brass knuckles.

Those are items for which there’s no use other than to use as a weapon. Those are all defined in the Penal Code and specifically prohibited. Each of those crimes can be charged as a misdemeanor or a felony. 

What is Misdemeanor?

A misdemeanor is a crime where the maximum punishment is one year in county jail, which sounds like a lot of time, but the fact of the matter is that when someone is convicted of a misdemeanor, they typically get probation. In order to get probation, you have to get less than the maximum, and so what people usually get is a very small sentence, and then they remain on probation, during which time they are supposed to act according to various rules and regulations. 

What is Felony?

A felony is a crime where the maximum punishment is a term in the state prison in excess of one year. 

Wobbler

A wobbler is a crime that wobbles between misdemeanor and felony. Whether it’s charged with a misdemeanor or felony is the discretion of the prosecutor. Whether the conviction remains a misdemeanor or a felony,

There’s a discretion of the court, and the court looks at various circumstances, such as the individual’s criminal history, the manner in which the weapon was possessed or used to determine whether that person should have felony probation, misdemeanor probation, whether they should have a misdemeanor county jail sentence or a felony prison sentence.

Firearms

Firearms are obviously extremely controversial throughout the United States. Generally, especially in California, we have laws that are more aligned with Liberal politics. Whether that’s a political issue or not is up to every individual. However, firearms are defined as items with a barrel that by virtue of combustion, expel a projectile. It’s important to distinguish it from a BB gun or an air sock. 

Air socks or BB guns tend to the projectile by the force of air, usually a CO2 cartridge. And the importance of that distinction comes into play in cases where someone can be seen with what appears to be a firearm, but the object was never analyzed by law enforcement. It was never discharged to clarify whether it was shooting bullets or a BB, something like that. But in addition to the crimes that are actually defined in the Penal code, the weapons are defined in the Penal code or the firearms are defined. There’s also kind of a more abstract definition of a weapon that comes into play in certain other situations. 

For example, there’s the crime of assault with a deadly weapon. Sometimes when certain crimes are used where the person possesses a weapon, there’s an enhancement that can add a potential one-year prison sentence for the use of a weapon in the Commission of a crime, the Commission of a felony.

In those cases, a weapon is not defined by a specific statute, such as a statute that defines nine shots, brass knuckles, the statute that specifically prohibits them in the case of a solid deadly weapon, or the one-year weapon use enhancement. A weapon is defined as any item that can be used and, in fact, is used in a manner that may cause death or great bodily injury. So that’s obviously pretty vague and abstract. And something that is subject to the argument is subject to various factors. That’s a situation where take, 

Baseball bat Example

A baseball bat is not a weapon per se. Its design is not intended to kill. However, obviously, it can kill. But that all depends on the manner in which it’s used. So, if you see someone walking down the street with a baseball bat, should you be scared? Well, it depends. Is there a spike through the back? Are they walking with a baseball Mitt and cleats? Does it look like they’re going to practice or they’re walking with the team? Is this a high prime area, or are they walking down the street with other people all dressed in red and they’re walking up to a group all dressed in blue?

What if you take those same two groups and you put that in a different neighborhood? That’s not a high crime area and there’s a baseball field in between them? Maybe they’re both going there. So, it all comes down to the facts, the circumstances, and the manner in which the individuals are carrying the weapons using the weapons. And that’s basically what distinguishes the various weapons from one another in the state of California. 

Now in San Francisco, the district attorney here who we currently have elected is one who approaches the prosecution of crimes in a way that seeks to address the very reason the individual is carrying the weapon, to begin with, the poverty that has led them to their plight in life, such that they feel a need to carry a weapon, whatever else is going on, bad decisions they may have made. 

Whereas you cross the bridge and you go to Alameda County, go to Oakland, where you have an epidemic of gun violence. And in that case, that particular district attorney tends to be more concerned with just addressing the very existence of the guns themselves. And her philosophy is one that leads her to actually put more emphasis on punishing the individuals who carry the gun rather than addressing the issues in that individual’s life that have led them to carry that.

illegal weapon in California

So, there are various items that by law are defined as legal weapons. I used the example of a baseball bat as something that’s not defined as a legal weapon. It’s designed not to be an illegal weapon, but its use can be a legal weapon.

In California law, whether a baseball bat, for example or a tired iron, a crowbar. Whether anything like that is ever considered to be an illegal weapon only has to do with the manner in which it is used. Is it used with the intent to cause death or great bodily injury on someone else or even slight injury? In those circumstances, it can be considered a weapon, but only once it’s actually put into use does the law start concerning itself with whether that item is an illegal weapon. There are, however, other items such as nunchucks, brass knuckles, and knives, which some of the Penal code are often referred to as Dirks daggers. There Are more obscure weapons that are still prohibited by our Penal codes, such as a cane sword, things that were probably more common back in the 1800s when the Penal code was originally drafted.

Those are all listed as specifically prohibited in the Penal code. Now, somewhat miscellaneous weapons such as those are considered deadly weapons by their definition of the Penal code, and the very possession of those, no matter the circumstances, is unlawful. If one is caught in possession of such an item. And the facts and circumstances of that situation demonstrate that the individual was intending to use it as a deadly weapon with the intent to assault somebody, that and of itself is a crime. The possession is a crime, whereas the possession of something like a baseball bat or a tire iron by itself is never a crime. It’s only the manner in which you use it that can be criminal. So, the possession of something like that, a baseball batter tire and iron by itself is never a crime. However, the manner in which you use it can be criminal, whereas the other items, such as the blackjack, the Dirk dagger, the knife, and the cane sword, are always considered weapons, the possession of which is always unlawful.

Categorize these weapons charges.

So, for all the weapons that We’ve listed which are considered weapons per se, the possession of that item is always the possession of a weapon, regardless of how it’s used, such as the nun chucks, the brass knuckles, the dirt dagger knife, those types can be charged as a felony or a misdemeanor. Earlier, we explained what a wobbler is, a crime that wobbles between being a misdemeanor or a felony. 

Misdemeanor vs Felony charges

A misdemeanor has a maximum punishment of one year in the county jail and a felony has a maximum punishment of more than a year in state prison. Obviously, the felony is more serious. It’s a more serious crime. There are more serious implications of a felony conviction on one’s record.

A felony is more often charged when someone comes into the case with a prior criminal record and where it looks like they were really carrying around this object with the intent to hurt somebody.

Firearm

Now a firearm is a totally different category in itself. Firearms, as I mentioned, there’s a huge epidemic of firearm tragedies in our country at large, in every big city, including Oakland. I think there’s probably less firearm issues in San Francisco, but that’s not to say we don’t have our own problems here. And obviously, San Mateo County and Santa Clara County have their own problems, Marin probably to a lesser extent, but it’s a problem everywhere.

What happens when a person is charged with a firearm crime?

The district attorney can approach these cases to determine whether it should be charged as a misdemeanor or a felony. Whether a firearm is charged as a misdemeanor or felony depends on more technical circumstances. If the person has a prior felony conviction, that person will always be charged with a felony being a felony possession of a firearm. 

There are also various laws prohibiting concealed carrier firearms. And as to whether the individual who commits that should be charged with a misdemeanor or felony depends on the various circumstances, including their status, such as whether they’re a felony or not, whether they have prior firearm convictions, whether they’re a drug addict and the circumstances in which they are carrying.

What is the punishment for weapon charges in California?

So, punishment for weapons charges in California can be broken up into two categories, misdemeanors, and felonies. Misdemeanors are less serious crimes, but the maximum punishment is up to one year in county jail, by which I mean, sometimes the maximum punishment for a particular crime is less than one year also. And what’s important to remember is that most people convicted don’t get the maximum. They usually get something substantially less than the maximum. The other category is felonies. Felonies are crimes that are punishable by a term and state prison that’s typically more than one year. Weapons charges, as felonies, tend to be punishable by either 16 months, two years, or three years. That’s called a sentencing tryout. There’s a low term, midterm and upper term, low term being 16 months, midterm, two years, upper term, three years. For most felony crimes in California, the person served, in that sense serves 50% of that, assuming that they conduct themselves with good behavior when incarcerated. 50% also applies to misdemeanor convictions as well. A misdemeanor conviction doesn’t have a particular term. It’s just up to one year. So, a judge at the end of a trial can impose five days, ten days, a month, six months, and up to a year.

Any kind of negotiated disposition with a prosecutor can be the same, typically in Oakland, California, where there tends to be more of an epidemic of gun violence than most places in the Bay Area. And that County Alameda district attorney typically doesn’t offer to sell any gun cases for less than 120 days, regardless of whether it’s a misdemeanor or felony. Okay. Whereas if you come to San Francisco, the district attorney here is going to be more satisfied that they have a conviction on the person’s record to show that they are on some sort of protection, some sort of supervision, not protection supervision so that there’s some sort of guarantee in place. The person is less likely to offend. And oftentimes those probation conditions tend to address the circumstances in that person’s life that’s led them to actually feel the need to possess a weapon.

What to do if I’m facing weapon charges?

If you’re ever facing weapons charges, the first thing you should do is call the Hallinan Law Firm at (415) 837-3449 you may also email me at contact@hallinanlawfirm.com, What you’re going to want is an attorney who is experienced, who knows the law, who knows how to deal with not just prosecutors generally, but specifically the prosecutors who are actually dealing with your case. A lot of times that requires a personal relationship, one that I have with most prosecutors throughout the Bay Area.

Again, the most important thing to do if you are facing weapons charges. Besides calling your lawyer, it is to remain silent, not answer any questions, never consent to any search or seizure. Every individual has constitutional rights, constitutional rights to remain silent, to not incriminate yourself, and rights to Privacy. That no search of your areas in which you have a reasonable privacy interest should ever be searched without a warrant issued by a detached, neutral Magistrate. 

A lot of times, people who are being searched, who are being interrogated feel a need to answer questions to consent searches because they think that they’ll just look more guilty if they don’t. The thing is, you don’t get convicted by looking guilty. You only get convicted by proof of guilt. And that proof is not going to be there if the law enforcement does not have any confessions, admissions, or evidence that they found as a result of searches. Therefore, the fact that you exercise your constitutional rights can never be used against that includes not only your right to be free from unreasonable search and seizure, your right to be free from compelled self-incrimination, but it’s also your right to have an attorney represent you. And so, the best way to beat any case, including weapons charges, is by exercising your constitutional rights. Do not consent to searches, do not provide statements and use your lawyer. Get your lawyer as soon as possible and have your lawyer represent you. You want a skilled lawyer, one with experience, one who knows not only how to deal with prosecutors, but how to deal with judges and how to obtain the best results in any given situation.

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