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Penal Code 25100

Improper Storage of a Firearm

Like many states, California has several laws on the books related to firearms. They affect the use, transport, and even storage of firearms. If you fail to properly store a firearm in a certain way, then you could be charged with “Criminal Storage of a Firearm” under Penal Code 25100.

How Can I Be Convicted of

Criminal Storage of a Firearm in California?

Penal Code Section 25100 sets forth three different versions of Criminal Storage of a Firearm, each based on the degree of severity. The law is meant to make sure that if you own a firearm, you do not let it fall into the wrong hands, especially a child. Below are the three different versions of this offense.

Criminal Storage of a Firearm in the THIRD DEGREE occurs when:

  • You keep a loaded firearm within any premises under your control
  • You negligently store or leave the firearm where you know or reasonably should know that a child is likely to gain access to the firearm without the permission of their parent/guardian AND
  • You did not take reasonable action to secure the firearm against access by the child

Criminal storage of a firearm in the third degree is the least serious version of this crime, and is only punishable as a misdemeanor. However, there are more serious violations, as well.

Criminal Storage of a Firearm in the SECOND DEGREE occurs when:

  • You keep any loaded firearm within any premises that are under your custody or control
  • You know or reasonably should know that either,

A child, without permission of their parent/guardian OR A person prohibited from possessing a firearm, is likely to gain access to the firearm

AND

The child or prohibited person either,

Gains access to the firearm and causes injury (to themselves or someone else) OR uses the firearm to commit the offense of “brandishing a weapon” under Penal Code Section 417.

Criminal firearm storage in the second degree is also a misdemeanor.

Criminal Storage of a firearm in the FIRST DEGREE occurs when the “injury” resulting from a second-degree violation rises to the level of “serious bodily injury” or death. The government must prove, beyond a reasonable doubt, that:

  • You keep any loaded firearm within any premises that are under your custody or control
  • You know or reasonably should know that either,

A child, without permission of their parent/guardian OR a person prohibited from possessing a firearm Is likely to gain access to the firearm

AND

The child or prohibited person gains access to the firearm and thereby causes death or great bodily injury with it.

When charged in the First Degree, Criminal Storage of a Firearm is a “wobbler”, which means that it can be either a misdemeanor or a felony.

Note that when a violation of Penal Code Section 25100 is based on an allegation that someone was injured or killed with the firearm, it does not matter who was killed or injured. ANY death or injury caused by the firearm’s use can lead to a charge under this statute-even if the person who took the firearm injures or kills themselves.

EXAMPLE:  John is a gun-owner and he carries a pistol with him on a holster during everyday errands. He has a lawful permit to do this. John learns that his friend, Steve, is being released from jail after serving a sentence for a serious felony, and offers to pick him up from prison. John takes Steve over to his home to hang out, and carelessly lets his pistol rest on the coffee table, next to where Steve is sitting. Steve takes the gun and uses it to kill himself outside. In this situation, John could be charged with Criminal Storage of a firearm in the FIRST DEGREE under Penal Code Section 25100.

What are the punishments for Criminal Storage of a Firearm?

As explained above, third and second-degree criminal firearm storage is a misdemeanor, but a first degree charge could be either a misdemeanor or a felony.

As a FELONY, first-degree improper firearm storage can be punished by sixteen (16) months, two (2) months, or three (3) months incarceration. A fine of up to $10,000 can also be imposed

As a MISDEMEANOR, criminal firearm storage is punishable by incarceration of up to one (1) year. A fine of up to $1,000 can also be imposed.

It is possible, however, that a person convicted of criminal firearm storage could avoid incarceration by being placed on probation. Depending on your prior record, you may be eligible for a probationary sentence after conviction. Be sure to consult closely with your attorney ahead of sentencing if you find yourself convicted of criminal firearm storage in California to strategize on how to minimize or even avoid jail time.

What are the

Punishments for Criminal Storage of a Firearm?

As explained above, third and second-degree criminal firearm storage is a misdemeanor, but a first degree charge could be either a misdemeanor or a felony.

As a FELONY, first-degree improper firearm storage can be punished by sixteen (16) months, two (2) months, or three (3) months incarceration. A fine of up to $10,000 can also be imposed

As a MISDEMEANOR, criminal firearm storage is punishable by incarceration of up to one (1) year. A fine of up to $1,000 can also be imposed.

It is possible, however, that a person convicted of criminal firearm storage could avoid incarceration by being placed on probation. Depending on your prior record, you may be eligible for a probationary sentence after conviction. Be sure to consult closely with your attorney ahead of sentencing if you find yourself convicted of criminal firearm storage in California to strategize on how to minimize or even avoid jail time.

What are the Defenses to a

Charge of Criminal Storage of a Cirearm?

Fortunately, there are several defenses available to a charge of violating Penal Code Section 25100. Many of them are outlined in a companion statute, Penal Code Section 25105:

The child obtains the firearm as the result of someone’s illegal entry onto the premises

If the firearms falls into the wrong hands as a result of a break-in, then you might have a defense to a charge that you improperly stored a firearm.

 

EXAMPLE: Bill keeps a gun inside his home. While he is on vacation, a burglar breaks into his home and steals the gun. The gun is later found when it is found in the hands of a 17-year old who was using it as part of a robbery. In this situation, Bill should probably be found “not guilty” of criminal firearm storage, because the gun only came into the child’s hands as the result of an illegal entry onto his home.

The child who obtains the firearm obtains it or discharges it in a lawful act of self-defense

If a child obtains the firearm but uses it lawfully to defend themselves, then the person who “improperly stored it” cannot be found guilty under Penal Code Section 25105.

The defendant took appropriate counter-measures to stop the gun from being taken

Penal Code Section 25105 also establishes certain situations where firearm storage is legally acceptable even if by some change of events, a child gets hold of the gun. A criminal firearm storage does not apply when

  • The firearm is kept in a locked container or in a location that a reasonable person would believe to be secure
  • The firearm is carried on the defendant’s person or within close enough proximity such that the defendant can easily retrieve it
  • The firearm is locked with a “locking device” thus rendering it inoperable OR
  • The defendant keeps it on their premises and has no reasonable expectation that a child is likely to be present on the premises
Illegal Search and Seizure

While not technically a “defense”, a charge of criminal firearm storage can be dismissed if the evidence against you was obtained as the result of unlawful police conduct. The 4th Amendment to the U.S. Constitution gives us all a right against unreasonable search and seizure. If law enforcement obtain evidence against you in an unlawful way, such as a firearm or ammunition, then your attorney may be able to ask the court to “suppress”, or “throw out” any evidence obtained.

 

In prosecutions under Penal Code Section 25100, this issue may apply mostly to “third degree” violations-because in prosecutions under the first or second degree, the firearm is likely recovered from a civilian who made off with the firearm on their own, which does not implicate the defendant’s personal rights against unlawful search and seizure. In “third degree” prosecutions, the police usually recover a firearm from your home under circumstances where they believe that it is unreasonably easy for a child to get a hold of it. If the police entered your home without a warrant, or without some exception to the warrant requirement like consent or exigent circumstances, you might have some basis to ask the court to order the gun suppressed. With such an important piece of evidence excluded, the government might have no choice but to dismiss your case.