Penal Code 26350: Open Carry Laws in California

I. PC 26350: Open Carry

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Legal Definition: (a) (1) A person is guilty of openly carrying an unloaded handgun when that person carries upon his or her person an exposed and unloaded handgun outside a vehicle while in or on any of the following:

(A) A public place or public street in an incorporated city or city and county.

(B) A public street in a prohibited area of an unincorporated area of a county or city and county.

(C) A public place in a prohibited area of a county or city and county.

(2) A person is guilty of openly carrying an unloaded handgun when that person carries an exposed and an unloaded handgun inside or on a vehicle, whether or not on his or her person, while in or on any of the following:

(A) A public place or public street in an incorporated city or city and county.

(B) A public street in a prohibited area of an unincorporated area of a county or city and county.

(C) A public place in a prohibited area of a county or city and county.

To be found guilty under PC 26350 the prosecution must prove:

1. You carried an exposed and unloaded firearm/handgun on your person or carried an exposed and an unloaded firearm on or in a vehicle;

2. You knew that you were carrying that firearm;

AND

3. When you carried that firearm, you were in a public place, public street, or prohibited area. 

II. What does this mean?

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Under this section, a handgun is considered exposed if it is not concealed in any way. If you have a handgun that is partially exposed, or it is otherwise easily able to be identified as a firearm, would lead you to be charged not under this section but instead under PC 25400 for a violation of Carrying a Concealed Firearm. It is still a crime under this section whether the handgun is loaded or unloaded. A handgun is any pistol, revolver, or any firearm that can be concealed on a person.

A firearm is a device that has a barrel that is less than 16 inches in length, or designed to be interchanged with a barrel less than 16 inches in length; is designed to be used as a weapon by expelling any projectile through means of an explosion or combustion. A public place is any area reasonably accessible to the public without a barrier. Therefore, your locked home, for example, would not be considered “public” as your door and the door lock is a barrier to entering your home. Areas that are considered prohibited would be places such as schools, airports, jails or prisons, government buildings, courthouses,s and post offices.

If you are otherwise not prohibited from owning or possessing a firearm, such as a person who suffers a previous felony or Domestic Violence conviction, you are legally allowed to have an unloaded firearm in public under certain circumstances. If you have a permit to carry, that would exclude you from prosecution under this section. Another way around this section is if you are legally transporting an unloaded firearm in a locked container or trunk of your car for a lawful purpose. Finally, you cannot be found guilty under this section if you are transporting an unloaded firearm that you cannot possibly conceal on your person, such as a rifle or shotgun.

III. Penalties

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A charge under PC 26350 under the Open Carry laws of California is a misdemeanor offense. If convicted, you could be sentenced to County Jail for upwards of one year. You would be required to serve at least 50% of that time in custody. You could also be subject to fines upwards of $1,000. This is also a different and distinct violation than Carrying a loaded firearm in public under PC 25850 or Carrying a Concealed Firearm under PC 25400. Being charged under this section does not preclude charges under other sections, for example, if you are in possession of illegal ammo, an illegal firearm, among other offenses you can be charged with. You could also lose possession of the firearm, even if legally purchased, by police.

This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since the offense is deportable, in that it is a crime of using a firearm.  

IV. Common Defenses

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1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence

For you to be found guilty under this section, the Prosecution must prove your guilt by proving all three elements above. Failing to show all three, would show there is insufficient evidence to convict you of a crime. There are technical defenses explained above, if it involves locked transportation, having a valid permit, or having an unconcealable firearm that can also avoid a conviction under this section. However, if there is a locked container, and it is not locked, that would not act as a defense for you, to prove there is insufficient evidence under this section. Keep in mind, if the firearm is in a trunk, or locked container, then you can show there is insufficient evidence to prove your guilt beyond a reasonable doubt.

Many times this can happen in cases involving security guards, who carry a firearm to work for their job. They usually have a permit to carry, or an exception to allow them to carry the firearm in public. But, it must be known that when you carry the firearm from home to your security job, the firearm is unloaded and locked. This becomes critical for many people in this possession, as many people who are security guards who receive a conviction under this section cannot be hired to the same positions, as they lose their permit or exception.

There is also a requirement that you knew you were carrying the unloaded firearm. That means the prosecution must prove you knew the firearm was in the vehicle, and not secured, to obtain a conviction under this section. Failing to show your knowledge, for example, in a case where you are borrowing a friend’s car, and do not know of the firearm in the car, would show there is insufficient evidence to prove you guilty of this crime.

V. Call Today

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