Difference between revisions of "Defining loaded in California"

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There is a ''sentence enhancement'' for carrying concealed in PC 12025(b)(6)
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There is a ''sentence enhancement'' for carrying concealed in PC [ [http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12025 12025(b)(6)]
  
 
  12025. (a) A person is guilty of carrying a concealed firearm when he
 
  12025. (a) A person is guilty of carrying a concealed firearm when he

Revision as of 23:48, 18 January 2011

"Loaded" from the Penal Code

Loaded Firearm is defined in Penal Code 12031:

12031. (a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in
a prohibited area of unincorporated territory. 

(e) In order to determine whether or not a firearm is loaded for the
purpose of enforcing this section, peace officers are authorized to
examine any firearm carried by anyone on his or her person or in a
vehicle while in any public place or on any public street in an 
incorporated city or prohibited area of an unincorporated territory.
Refusal to allow a peace officer to inspect a firearm pursuant to
this section constitutes probable cause for arrest for violation of
this section.
 
(f) As used in this section, "prohibited area" means any place where
it is unlawful to discharge a weapon. 

(g) A firearm shall be deemed to be loaded for the purposes of
this section when there is an unexpended cartridge or shell in, or
attached in any manner to, the firearm, including, but not
limited to, in the firing chamber, magazine, or clip thereof
attached to the firearm.

(h) Nothing in this section shall prevent any person engaged in any
lawful business, including a nonprofit organization, or any officer,
employee, or agent authorized by that person for lawful purposes
connected with that business, from having a loaded firearm within the
person's place of business, or any person in lawful possession of
private property from having a loaded firearm on that property. 

(j) (1) Nothing in this section is intended to preclude the carrying
of any loaded firearm, under circumstances where it would otherwise
be lawful, by a person who reasonably believes that the person or
property of himself or herself or of another is in immediate, grave
danger and that the carrying of the weapon is necessary for the
preservation of that person or property.  As used in this 
subdivision, "immediate" means the brief interval before and after
the local law enforcement agency, when reasonably possible, has been
notified of the danger and before the arrival of its assistance. 

(k) Nothing in this section is intended to preclude the carrying of a
loaded firearm by any person while engaged in the act of making or
attempting to make a lawful arrest. 

(l) Nothing in this section shall prevent any person from having a
loaded weapon, if it is otherwise lawful, at his or her place of
residence, including any temporary residence or campsite.

People v. Clark

People v. Clark(1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99 specifically limited 12031(g) by holding that in order to be “loaded” a firearm must have ammunition “placed into a position from which it can be fired”. The case rested on the fact that a shotgun is not loaded when shotgun shells were attached to a shotgun inside a buttstock shell carrier.

The key paragraphs of the decision:

The term "loaded" has a commonly understood meaning: "to put a load
or charge in (a device or piece of equipment) a gun" or "to put a
load on or in a carrier, device, or container; esp: to insert the
charge or cartridge into the chamber of a firearm." (Webster's New
Collegiate Dict. (1976) p. 674.) Under the commonly understood
meaning of the term "loaded," a firearm is"loaded" when a shell
or cartridge has been placed into a position from which it can be
fired; the shotgun is not "loaded" if the shell or cartridge is
stored elsewhere and not yet placed in a firing position. The
shells here were placed in a separate storage compartment of the
shotgun and were not yet "loaded" as the term is commonly understood.

There is nothing in Health and Safety Code section 11370.1 which
indicates the Legislature did not intend to use the term "loaded" in
its commonly understood meaning.

We note Penal Code section 12031 states it is defining the term
"loaded" "for the purposes of this section" (Pen. Code, § 12031,
subd. (g)); it does not state it is applicable to a Health and Safety
Code offense nor does Health and Safety Code section 11370.1 refer to
the Penal Code definition.

Second, even if we were to accept the Attorney General's assertion
that the definition of "loaded" contained in Penal Code section
12031, subdivision (g) applies to Health and Safety Code section
11370.1, subdivision (a), we would still conclude the shotgun here
was not loaded. 
…
[2] A statute "must be given a reasonable and commonsense
interpretation consistent with the apparent purpose and intention of
the Legislature, practical rather than technical in nature, and
which, when applied, will result in wise policy rather than mischief
or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist.
(1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128].) "The words must
be construed in context in light of the nature and obvious purpose of
the statute where they appear. [Citation.]" (Decker v. City of
Imperial Beach (1989) 209 Cal.App.3d 349, 354 [257 Cal.Rptr. 356];
Lakin v. Watkins Associated Industries(1993) 6 Cal.4th 644, 659 [25
Cal.Rptr.2d 109, 863 P.2d 179].)
…
Given the examples are all consistent with an intent to use the
common meaning of "loaded," it follows the Legislature's use of
the phrase "attached in any manner" to the firearm was intended to
encompass a situation where a shell or cartridge might be
attached to a firearm or "loaded" for firing by some
unconventional method. The phrase does not demonstrate a clear
Legislative intent to deem a firearm loaded no matter how a shell is
attached to a firearm; in particular, it does not indicate a clear
intent to deem a gun "loaded" when the ammunition, as here, is in a
storage compartment which is not equivalent to either a magazine or
clip and from which the ammunition cannot be fired. Our conclusion
that the Legislature intended "loaded" as used in Penal Code section
12031 to reflect the common definition is supported by the court in
People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45],
which reached the same conclusion …

The holding of People v. Clark applies to all types of firearms, not just shotguns.

There remains a lack of clarity whether a detachable magazine with rounds in the magazine inserted into the magazine well of a firearm is loaded as this may constitute a loaded firearm However, People v. Clark makes it very clear that loaded magazines in the same case or on a person's belt but not in the magazine well do not constitute a loaded firearm. Loaded magazines in a buttstock like the SU-16CA but an empty chamber and magazine well would not constitute a loaded firearm.

There are uncommon exceptions in California law that state that a loaded magazine in the same area as an unloaded firearm constitutes a loaded firearm. Those exceptions are outlined below. Those alternate definitions also help prove the rule that the definition of loaded firearm requires rounds in the chamber or rounds in a magazine in a firing position directly attached to the action.

Recent Law Enforcement Training Materials

Some agencies are releasing materials their officers regarding Unloaded Open Carry which address the concept of loaded.

PC § 12031(g) – Statutory Definition of “Loaded” 
A firearm is deemed to be loaded when there is an unexpended  
shell  ... in, or attached in any manner to, the firearm. PC §  
12031(g). Legislative history: The Legislature’s use of the phrase 
“attached in any manner” to the firearm was intended to encompass
a situation where a shell or cartridge might be attached to a 
firearm or “loaded” for firing by some unconventional method. 
The phrase does not demonstrate a clear Legislative intent to deem
a firearm loaded no matter how a shell is attached to a firearm,
even when shells are placed in a separate storage compartment at 
the rear of a shotgun’s stock. People v. Clark, 45 Cal. App. 4th 
1147 (1996). 

Case Law Definition of “Loaded” = Ready for Firing 
For purposes of PC § 12031, a firearm is loaded when a shell or  
cartridge has been placed into a position from which it can be 
fired. A firearm is not loaded if the shell or cartridge is stored 
elsewhere and not yet placed in a firing position.  People v. 
Clark, 45 Cal. App. 4th 1147, 1153 (1996). 
When is a firearm considered "Loaded"?
The short answer is that it depends on the circumstances.  
Ordinarily, a firearm is loaded if the ammunition is placed into 
the weapon in a manner that it could be fired. If the suspect is 
being charged with carrying the firearm with the intent to commit 
a felony (12023 PC), then a special definition of "loaded" 
applies. The firearm is considered "loaded" if the weapon, and 
ammunition capable of being fired in the weapon, are in the 
immediate possession of the subject (12001(j) PC). Penal Code § 
171e provides a similar definition of "loaded" for firearms 
carried in the state capitol or offices (171c PC), and in the 
residences of designated elected officials (171d PC). Deputies 
should be familiar with this special definition, and be careful 
not to apply it to circumstances not involving a violation of 
sections 171c, 171d, or 12023.

The majority of offenses involving the carrying of a loaded weapon
fall under 12031 PC. Section 12031(g) defines a weapon as being 
loaded when the ammunition is in, or attached to, the firearm. It 
specifically provides that a weapon is loaded if there is 
ammunition in the firing chamber, magazine or clip. The California
Court of Appeal considered the question of when a weapon is loaded
in the case of People v. Harvey Lee Clark (45 Cal App. 4th 1147).
The defendant had a single-shot shotgun which had no shell in the 
chamber. It had a buttstock shell holder which held live rounds.
The court clarified the "attached to" language of 12031(g) holding
that the weapon was unloaded since the rounds could not be fired
from the buttstock holder.

Similar documents have been issued by the Orange County Sheriff's Office, CPOA, Los Angeles District Attorney's Office and Sunnydale.

Ammunition or Loaded Magazines in locked containers

Ammunition may be carried in the same container as the gun – loose ammunition or ammunition in ammo boxes does not make a gun loaded, because the ammunition is NOT “placed into a position from which it can be fired”.

You may transport loaded magazines and speed loaders, so long as they are not inserted into the magazine well or cylinder of the firearm. That does not make a gun loaded, because the ammunition carried that way is NOT “placed into a position from which it can be fired”.

A loaded magazine is not the same as a loaded weapon, and possession of a weapon and a loaded magazine for that weapon does not, necessarily, mean you have a loaded weapon.

Anyone who asserts something contrary to the above 3 points is simply wrong. That does not mean you cannot be arrested by uninformed or badly trained law enforcement officer, or charged with the crime of carrying a loaded weapon by an uninformed or politically motivated prosecutor. It does mean that, if it goes to court and you have good representation, the prosecution should lose on the law. There are certain exceptions to this outlined below.

Your comfort level may lead you to do more than the law requires. Please also see Transport Restriction for Handguns for some important additional notes on transporting handguns in California.

"Prohibited Area"

The definition of "prohibited area" generally turns on whether the municipal or county code in that area prohibits the discharge of a firearm. Additional, Penal Code 374c makes shooting from any public road illegal.

Rare Exceptions to Firearm Not Loaded

There are rare exceptions to the rule of "ammunition in firing position" that do define a firearm as loaded when other factors are present.

12001(j) only applies to 12023 (carry with intent to commit a felony).

12001 (j) For purposes of Section 12023, a firearm shall be deemed
to be "loaded" whenever both the firearm and the unexpended 
ammunition capable of being discharged from the firearm are 
in the immediate possession of the same person.

12023. (a) Every person who carries a loaded firearm with the intent
to commit a felony is guilty of armed criminal action.

171e only applies inside the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc.

171c. Any person, except…, or a person holding a valid license to
carry the firearm pursuant to Article 3 (commencing with Section 12050)
of Chapter 1 of Title 2 of Part 4, who brings a loaded firearm into, 
or possesses a loaded firearm within, the State Capitol, any 
legislative office, any office of the Governor or other 
constitutional officer, or any hearing room in which any committee 
of the Senate or Assembly is conducting a hearing, or upon the grounds
of the State Capitol, which is bounded by 10th, L, 15th, and
N Streets in the City of Sacramento,

171d. Any person, … shall be punished by imprisonment in a county
jail for not more than one year, by fine of not more than one thousand
dollars ($1,000), or by both the fine and imprisonment, or by 
imprisonment in the state prison, if he or she does any of the following:
 (a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the Governor,
the residence of any other constitutional officer, or the residence of
any Member of the Legislature.
 (b) Brings a loaded firearm upon, or possesses a loaded firearm 
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or 
the residence of any Member of the Legislature.
 
171e. A firearm shall be deemed loaded for the purposes of 
Sections 171c and 171d whenever both the firearm and unexpended
ammunition capable of being discharged from such firearm are in the
immediate possession of the same person.

Note that these definitions say nothing about magazines, only firearm and ammunition.

The Fish and Game Code has a different definition:

2006. It is unlawful 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.

There is a sentence enhancement for carrying concealed in PC [ 12025(b)(6)

12025. (a) A person is guilty of carrying a concealed firearm when he
or she does any of the following:
 (1) Carries concealed within any vehicle which is under his or 
her control or direction any pistol, revolver, or other firearm 
capable of being concealed upon the person.
 (2) Carries concealed upon his or her person any pistol, revolver, 
or other firearm capable of being concealed upon the person.
 (3) Causes to be carried concealed within any vehicle in which he
or she is an occupant any pistol, revolver, or other firearm capable 
of being concealed upon the person.
(b) Carrying a concealed firearm in violation of this section
is punishable, as follows:
…
 (6) By imprisonment in the state prison, or by imprisonment in a 
county jail not to exceed one year, by a fine not to exceed one 
thousand dollars ($1,000), or by both that fine and imprisonment
  if both of the following conditions are met:
  (A) Both the pistol, revolver, or other firearm capable of 
being concealed upon the person and the unexpended ammunition
capable of being discharged from that firearm are either in 
the immediate possession of the person or readily accessible to 
that person, or the pistol, revolver, or other firearm capable
of being concealed upon the person is loaded as defined in subdivision
(g) of Section 12031.
  (B) The person is not listed with the Department of Justice pursuant
to paragraph (1) of subdivision (c) of Section 11106, as the registered
owner of that pistol, revolver, or other firearm capable of being
concealed upon the person.
 (7) In all cases other than those specified in paragraphs (1) to (6),
inclusive, by imprisonment in a county jail not to exceed one year, 
by a fine not to exceed one thousand dollars ($1,000), or by both that
imprisonment and fine.

So, if you either have a conventionally ‘loaded’ concealed weapon, or have the concealed weapon and ammunition for it, AND the weapon is not registered to you, you may get state prison instead of county jail.

There is a sentence enhancement for having a weapon and having armor-piercing ammunition:

12022.2. (a) Any person who, while armed with a firearm in the
commission or attempted commission of any felony, has in his or her
immediate possession ammunition for the firearm designed primarily
to penetrate metal or armor, shall upon conviction of that felony or
attempted felony, in addition and consecutive to the punishment
prescribed for the felony or attempted felony, be punished by an
additional term of 3, 4, or 10 years.

There is a sentence enhancement for those who commit defined street gang crimes and have both a weapon and a detachable magazine for it – whether or not there is ammunition and whether the weapon is loaded or unloaded (apparently in the 12031(g) sense):

12021.5. (a) Every person who carries a loaded or unloaded firearm
on his or her person, or in a vehicle, during the commission or
attempted commission of any street gang crimes described in subdivision
(a) or (b) of Section 186.22, shall, upon conviction of the felony
or attempted felony, be punished by an additional term of imprisonment
in the state prison for one, two, or three years in the court's
discretion. The court shall impose the middle  term unless there are
circumstances in aggravation or mitigation. The court shall state the
reasons for its enhancement choice on the record at the time of sentence.
(b) Every person who carries a loaded or unloaded firearm together
with a detachable shotgun magazine, a detachable pistol magazine,
a detachable magazine, or a belt-feeding device on his or her
person, or in a vehicle, during the commission or attempted commission
of any street  gang crimes described in subdivision (a) or (b) of
Section 186.22, shall, upon conviction of the felony or attempted
felony, be punished by an additional term of imprisonment in the state
prison for two, three, or four years in the court's discretion. The 
court shall impose the middle term unless there are circumstances in
aggravation or mitigation. The court shall state  the reasons for its
enhancement choice on the record at the time of sentence.

Health and Safety Code 11370 and 11550 refer to a loaded firearm, but do not define loaded (see People v Clark notes above).

Also possession of a firearm and the ammunition for it at a gun show is illegal, unless you are a law enforcement officer, guard, or vendor:

12071.4. (a) This section shall be known, and may be cited as, the 
Gun Show Enforcement and Security Act of 2000.

(g) No person at a gun show or event, other than security personnel
or sworn peace officers, shall possess at the same time both a
firearm and ammunition that is designed to be fired in the
firearm. Vendors having those items at the show for sale or 
exhibition are exempt from this prohibition...

(l) Unless otherwise specified, a first violation of this section is 
an infraction. Any second or subsequent violation is a misdemeanor. 
Any person who commits an act which he or she knows to be a violation 
of this section is guilty of a misdemeanor for a first offense.

A "Public Place"

Penal Code 12031 specifies that carrying a "loaded" firearm may be a crime if this occurs in a "public place".

12031. (a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in
a prohibited area of unincorporated territory. 

A "public street" is fairly clear. What is a "public place"?

Penal Code 12031 does not provide guidance. Nearby Penal Code section 12026 suggests certain areas are not public, for handguns:

(a)Section 12025 shall not apply to or affect any citizen of the United
States or legal resident over the age of 18 years who resides or is
temporarily within this state, and who is not within the excepted
classes prescribed by Section 12021 or 12021.1 of this code or Section
8100 or 8103 of the Welfare and Institutions Code, who carries, either
openly or concealed, anywhere within the citizen's or legal resident's
place of residence, place of business, or on private property owned or
lawfully possessed by the citizen or legal resident any pistol,
revolver, or other firearm capable of being concealed upon the person.

(b)No permit or license to purchase, own, possess, keep, or carry,
either openly or concealed, shall be required of any citizen of the
United States or legal resident over the age of 18 years who resides or
is temporarily within this state, and who is not within the excepted
classes prescribed by Section 12021 or 12021.1 of this code or Section
8100 or 8103 of the Welfare and Institutions Code, to purchase, own,
possess, keep, or carry, either openly or concealed, a pistol,
revolver, or other firearm capable of being concealed upon the person
within the citizen's or legal resident's place of residence, place of
business, or on private property owned or lawfully possessed by the
citizen or legal resident.

Historical cases

Three California cases provide information on what courts see as 'public places' for purposes of 12031: People v. Green (1971) 15 Cal App 3d 766 (a hospital parking lot), People v. Vega (1971) 18 Cal App 3d 954 (a supermarket parking lot), and People v. Overturf (1976) 64 Cal App 3d Supp 1 (the driveway at an apartment complex). The locations in each case were private property, but places where the public ordinarily had access in order to do business.

Additionally, People v. Marotta (1981) 128 Cal App 3d Supp 1 suggests businesses, open to the public, are not necessarily 12031 'public places'; notable for the conclusion that a cab driver is actually in his/her place of business while in a cab, and thus meets the exemption for businesses in 12031(h), the court further writes

The principle of statutory construction that code provisions must be
"construed according to the fair import of their terms, with a view
to effect its [the code's] objects and to promote justice" (Pen.
Code, § 4), is also of no particular help. Although the general
purpose of the Weapons' Control Law is to control the threat to
public safety in the indiscriminate possession and carrying about of
concealed and loaded weapons, the express exception, to allow
business persons to protect their property, must also be given
effect. We cannot choose to give heed to one legislative purpose, so
as to achieve the laudable social end of stronger gun control, and
yet ignore the plain intent of a legislative purpose embodied in the
exceptions. Furthermore, the legislative purpose which allows
business people to possess weapons to protect their property is as
important to taxicab operators as it is to business persons in fixed
geographic locations. The possible danger to the public posed by cab
drivers with guns is no more grave than that posed by armed retail
store operators. We can perceive no sound or obvious reason which
would warrant our reading into this law a distinction which it
plainly does not now contain.

Recent cases

A recent case, People v. Strider (People v. Strider, 177 Cal. App. 4th 1393) begins to set some limitations. Strider's decision says

"A fenced front yard is not a public place for purposes of Penal Code
Sec. 12031’s prohibition on carrying a loaded firearm in a public
place; thus, officer who saw defendant with a firearm in such a yard
could not have reasonably suspected defendant unlawfully had a firearm
in a public place, and trial court erred in denying defendant’s
pretrial suppression motion."

For more discussion of the exceptions that allow unlicensed concealed carry see Unlicensed Concealed Carry.