I. PC 33410: Possession of a Silencer

Legal Definition: “Any person, firm, or corporation who within this state possesses a silencer is guilty of a felony and upon conviction thereof shall be punished…”

To find you have committed the enhancement under PC 33410, the prosecution must show that:

1. You possessed a firearm; And
2. That firearm had an attached silencer.

II. What does this mean?

As assumed by the name, a silencer is a device affixed to a gun that reduced or significantly eliminates the sound of a gun when it fires. Silencers are often used in movies, as a means of killing another person without others hearing the gun go off. They are often made and used specifically to fire a weapon without the fear of witnesses hearing the blast and knowing a criminal act has occurred. Keep in mind, this charge is not for using the silencer on a firearm, it’s for simply possessing it. That means, you could be pulled over for speeding, and possibly arrested for maybe driving on a suspended license under VC 14601.1(a), and police find on your possession a silencer, which can now land you in much deeper trouble simply for possessing it.

This violation does not apply to the following sections under PC 33415:

(a) The sale to, purchase by, or possession of silencers by agencies listed in Section 830.1, or the military or naval forces of this state or of the United States, for use in the discharge of their official duties.

(b) The possession of silencers by regular, salaried, full-time peace officers who are employed by an agency listed in Section 830.1, or by the military or naval forces of this state or of the United States, when on duty and when the use of silencers is authorized by the agency and is within the course and scope of their duties.

(c) The manufacture, possession, transportation, or sale or other transfer of silencers to an entity described in subdivision (a) by dealers or manufacturers registered under Chapter 53 (commencing with Section 5801) of Title 26 of the United States Code and the regulations issued pursuant thereto.

III. Penalties

A violation under PC 33410 is a felony only offense. This means the charge can never be reduced to a misdemeanor, which subjects to additional restrictions such as the right to vote, the ability to ever own or possess a firearm, as well as new violations for possession a firearm which would then be in violation under PC 29800 (Possession of a Firearm of A felon). If you are convicted of this section, you could be sentenced to upwards of 16 months, 2 or 3 years in a State Prison. You would be required to serve at least 50% of that time in custody. You could also potentially be sentenced to something less than State Prison, with something such as Formal Probation, depending on the facts of your case, and if your attorney has the ability to successfully negotiate for that in your situation. You are also subject to a fine of up to $10,000, and loss of the silencer/weapon you had.

This is not a strike offense under California’s Three Strike Law or a Sex offense under PC 290. This may affect your Immigration status since it involves a firearm. Also, given that this is a felony only offense, you would likely lose your Professional License upon a conviction for this charge.

IV. Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. False Accusations

A person can falsely accuse you of a violation of possessing a silencer. This can happen based on a person’s anger, jealousy or revenge that they may feel for you. Because of this, they decide to contact the police, and either plant or say they saw you with a silencer that you may never have had. It makes it more difficult if you have a large gun collection and like to assemble and disassemble guns for your own enjoyment. A person could falsely claim that you have a silencer or plant one in your possession, and you could ultimately lose not only your freedom but your entire gun collection upon arrest.

Another defense is the defense of insufficient evidence to prove you guilty of a crime. For example, the police may assume that you have some addition made to your firearm that looks to be a silencer, but it is not in fact a silencer. If it is determined that the item you are using is not a silencer nor used as a silencer, then you cannot be found guilty of this charge, as there would be insufficient evidence.

There also could be an issue later when you are arrested by police, if the police violated your rights guaranteed under the 4^th Amendment. If, for example, police were to stop you on a street, simply because of your race, but lacking probable cause to detain or arrest you, then, if later a silencer is recovered on your person, your Criminal Defense Attorney could possibly argue that this was an illegal stop, and they can file a motion under PC 1538.5 to have the silencer found thrown out of your case. Given that the silencer possession is the crime, your charge here would likely be dismissed. This would not preclude further prosecution or other charges you may be facing in your case.

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