Possession of a Firearm at School
PC 626.9 & 626.10 Law & Defense
Information on the crime of possession of a firearm at, or near, school is found at California penal code section 626.9 & 626.10.These statutes together are known as the Gun Free School Zone Act of 1995.
626.9(b): Any person who possesses a firearm in a place that the person knows, or reasonably should know, is a school zone, is guilty of possessing a firearm at school (Abbrev.).
Note: Exceptions might exist for persons who possess a firearm within a business, or on private property, that is located within the school zone but is not part of the school property (PC 626.9(c). Other exceptions might apply for unloaded firearms in locked containers, persons with CCWs, peace officer and some security guards, prior written permission from a person authorized to give that permission, persons granted restraining orders under limited circumstances, and more.
PC 626.10(a)(1) Bring a gun to school crime is similar to the law in PC 626.9(b), except that the firearm is on school property (not just within the school zone) and the penalties are different (See penalties for PC 626.9(b) and 626.10 below).
School Zone: A school zone means an area in, or on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, or within a distance of 1,000 feet from the grounds of the public or private school (PC 626.9 Abbrev.).
Possession Defined: Possession of a gun can be actual or constructive: Actual possession of a firearm means to have the firearm on the defendant's person or within his or her immediate grasp; constructive possession means or to have access and control over the gun, such as in the defendant's registered vehicle.
PC 626.9(b): Possess a firearm in a school zone is classified as a misdemeanor as as a felony. When PC 626.9 is charged as a felony the defendant may face up to five years in jail if convicted. When PC 626.9(b) is charged as a misdemeanor the defendant may face up to one year in the county jail if convicted.
PC 626.9(d): Discharge a firearm within a school zone is charged as a felony. If convicted of PC 626.9(d) the defendant could face up to seven years in jail.
PC 626.9(h): Possess a loaded firearm at college is charged as a felony. If found guilty of PC 626.9(h) the defendant could face up to four years in jail.
PC 626.10(a)(1) Bringing a gun to school is charged as a misdemeanor or as a felony. When PC 626.10(a)(1) is charged as a felony the defendant could face up three years in jail. When PC 626.10(a)(1) is charged a a misdemeanor the defendant could face up to one year in jail.
Note: If the defendant has suffered past criminal convictions, especially for gun crimes, he or she will have enhanced penalties, including minimum jail sentences, added to his or her PC 626.9 or 626.10 charges. For example, even if the defendant is granted a probation sentence for possessing a gun at school, that probation sentence must contain an order for at least three months of jail if the defendant has a prior gun conviction.
Probation: A probation sentence is a period of supervision as opposed to an actual jail sentence (Some jail could be required even with a probation sentence). A probation sentence is allowed in PC 626.9 and 626.10 cases, but they are not guaranteed. Whether or not the defendant will be granted a probation sentence after a conviction for possessing a firearm at, or near, a school, depends largely on the facts of the case and the defendant's criminal history. Some probation sentences include a work release or house arrest sentences an alternative to a jail sentence.
PC 1170(h): If the defendant is not granted a probation sentence after a conviction for possessing a gun a school he or she may serve his or her incarceration in a county jail (as opposed to a state prison). Also, jail sentences in these type of cases may be split (served partially out of custody on work release), or suspended (not served at all unless the defendant violates a condition of his or her out of custody release).
Three Strikes Law: Neither PC 626.9, nor PC 626.10(a)(1) are considered strike offenses under California Three Strikes Law.
CIMT: Possessing of a firearm at, or near, a school zone is not likely a crime involving moral turpitude as there is not necessarily an indication of deceit or moral wrong associated these crimes. However, to be safe, anyone charged with a a PC 626.9 or 626.10 crime should contact a criminal defense lawyers familiar with immigration and professional licensing law without delay to learn the most recent changes in this area of law (CIMT laws laws change frequently).
In addition to the punishments listed above, if found guilty of possessing a firearm at school, the defendant could face any of the following penalties: Los of gun rights, criminal protective orders (CPS), fines and fees, denial of enlistment in the armed services, professional licensing and immigration consequences, civil lawsuits, and more.
Defense to PC 626.9 & 626.10
Common defenses to criminal charges of possessing a firearm at school (or near a school zone), include: insufficient evidence, statue of limitations, mistake of fact, legally authorized (See exceptions above), entrapment, and more.
Note: Momentary possession, or fleeting possession, is not likely going to lead to a charge of possessing a firearm at school, if the facts show that the defendant took possession only momentarily and for the safety of others. For example, if a school janitor finds a gun on a school playground and he or she takes possession of that gun until the police arrive, he or she is not likely going to be charged with a PC 626.9 or 62.10 crime because he or she only took momentary possession to protect another person, especially a child student) from finding the gun.
If you have been arrested or charged with possession of a firearm at school, or PC 626.9 or 626.10, contact out criminal defense lawyers today for a free consultation. Our criminal defense attorneys are able to assist you seven days a week. Call today!
Quick Legal Reference
Crime: Possession of a Firearm in a School Zone
Code: PC 626.9(b)
Wobbler: Yes. PC 626.9(b) is a wobbler. This means that PC 626.9(b) may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 626.9(b) jail sentence range: 2, 3, or 5 years. Misdemeanor jail sentence up to 1 year.
Probation: Probation is allowed in felony and misdemeanor PC 626.9(b) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. PC 626.9(b) is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Note: Limitations may apply
Strike: PC 626.9(b) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 626.9(b) is not likely a crime involving moral turpitude.
Firearms: PC 626.9(b) convictions prohibit a defendant from owning or possessing a firearm.
Bail: $25,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)
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