Information on the crime of selling, leasing, or transferring a firearm without a license is found at California Penal Code section 26500. This article contains information on the law, the penalties, and the common defenses associated with PC 26500. We have also included some information on post-conviction options.
PC 26500 Law (Abbrev.)
PC 26500(a): No person shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to… California law (PC 26500(a) Abbrev.).
PC 26500(b) Any person violating this article is guilty of a misdemeanor (See PC 26500 Penalties below).
Firearm Defined: Under California law, a firearm is defined as a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by force of an explosion or other form of combustion (PC 16520(a)). A firearm includes the frame or receiver of the weapon (PC 16520(b)).
Firearms include, but are not limited to, the following: handguns, rifles, shotguns, revolvers, pistols, rockets launchers, or any device similar to the above that contain an explosive or incendiary material … and all parts of these devices (PC 16520 (a), (b), and (c) Abbrev.).
Emergency Signaling Device: Per California law, a “flare gun” or other similar emergency device, is considered a firearm subject to PC 26500 restriction, so long as the emergency device otherwise fits the definition of a firearm defined at PC 16520 (See above).
Antique Firearm Defined: An antique firearm is not considered a firearm for purposes of PC 26500. An antique firearm is defined as follows:
(a) any firearm with matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before 1898, or
(b) any replica of any firearm described in (a) if the replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or the replica uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the U.S. and which not readily available in the ordinary channels of commercial trade, or
(c) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition.
Note: Firearm does not include unloaded antique guns (see above), BB guns, or air rifle guns.
Firearm License Required: PC 26500(a) is violated when a defendant sells, leases, or transfers a firearm, unless the defendant complies with firearm licensing and permit requirements listed in Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2.
Note: PC 26700 covers the Attorneys’ General's Office and the Department of Justice’s (DOJ) initial process of determining whether or not the applicant is allowed to move forward with the application process; PC 26800 covers the licensing requirements, permissions, and restrictions.
Note: A license to sell, lease, or transfer firearms requires licensing and permitting per United States Code, California law, and possible county and local requirements, and more. Also, a license to sell, lease, or transfer certain firearms does not necessarily mean that the licensee is permitted to sell, lease, or transfer any type of firearm. For example, a the sale of assault weapons requires special firearm licensing above and beyond the sale of generic firearms (PC 31005).
Exceptions to PC 26500(a): California law allows for the transfer and/or sale of firearms without a license in limited situations, including, but not limited to, the following:
Transfer of a firearm to a gunsmith for the purpose of repairing the firearm (loan),
Transfer of a firearm to a licensed gun dealer (sale),
Transfer of a firearm to another person at a gun range (so long as the transferee is not otherwise forbidden from possessing a firearm),
Exceptions for law enforcement officers,
Transfer of a firearm for purposes of proper and legal disposal (limitations apply)
Transfer of a firearm as ordered by a judge (court order transfer for certain criminal and civil offense, including criminal threats, domestic battery, stalking, assault with a deadly weapon, etc.)
Transfer of firearms at gun shows and trade shows (limitations apply)
Note: Other PC 26500 exceptions might apply. Contact a lawyer familiar with firearm laws for more information. If you are charged with a crime, contact a criminal defense lawyer without delay.
Important: Per California law, all firearm sales, and other firearm transfer transactions, except for the limited exceptions listed above, must be conducted through a person licensed by California to handle such transfers (PC 26700 & PC 26800). In other words, there is no allowance under California law for a private person-to-person sale of a firearm without the transaction being handled through a person licensed to broker such sales or transfers.
PC 26500 Penalties
The following is a list of some of the direct and indirect penalties associated with a conviction for California Penal Code section 26500(a) or 26500(b).
Misdemeanor Conviction: PC 26500 is classified as a misdemeanor. A misdemeanor is a classification of crime that is generally considered less severe that a felony and more severe than an infraction (See Misdemeanor v. Felony).
Jail Sentence: Each conviction for a violation of PC 26500 carries up to a 180day jail sentence in a local county jail.
Probation Sentence: A probation sentence is a period of supervision instead of actual incarceration in a jail. A probation sentence is available in PC 26500 crimes, but it is not guaranteed. Whether or a probation sentence will be allowed in any PC 26500 case depends large on the facts of the case, the defendant’s criminal history, the presence of any harm that was caused to a victim by defendant’s conduct, the presence of any plea bargain between the defendant and the district attorney, and more.
Note: A probation sentence for PC 26500 convictions is considered “informal,” which means that the probationer (defendant) is monitored by the court and not by a probation officer. Also, a probation sentence will include “conditions of probation,” which the defendant must fulfill to remain on probation. Finally, a condition of probation can include a jail sentence, but when a jail term is included as a condition of probation, that jail sentence may usually be served alternatively on work release (community service) or house arrest. For more information, see Probation Sentences, Violation of Probation, & Work Release.
Fines & Fees: A conviction for the unauthorized selling, leasing, or transferring a firearm can lead to court fines of up to $1,000.00 and other court security fees. This monetary penalty is in addition to any restitution ordered by the judge to compensate victim’s of the defendant’s conduct, if any (See Restitution).
Firearm License Revoked: A defendant convicted of PC 26500 may have her firearm license revoked.
Other penalties: In addition to the penalties listed above, a conviction for the unlawful sale, lease, or transfer of a firearm may lead to collateral punishment, including, but not limited to, the following: immigration consequences, professional licensing consequences, military service consequences, criminal protective orders (CPO), civil lawsuits, loss of insurance, and more.
Bail: Bail is an amount of money or property staked with the court (held in trust) that is paid by the defendant and intended to ensure the defendant’s presence in court during the pretrial proceedings. If the defendant fails to appear in court while on bail, then the defendant may have his bail forfeited and she will have a warrant issued for her arrest. Bail for PC 26500 in San Bernardino County is $25,000. For more information, see Bail Information, and Warrants.
PC 26500 Common Defenses
Every PC26500 criminal charge is supported by different allegations; therefore, every alleged unauthorized sale, lease, or transfer of a firearm will incorporate a different defense.
With that said, some criminal allegations lend themselves to common defenses. In the case of PC 26500, common defendant include, but are not limited to, the following: statute of limitations (1 year), Serna Motion (Failure to time prosecute), entrapment, illegal search and seizure (suppression of illegal obtain evidence used to prosecute defendant), coerced confessions, mistake of fact, double jeopardy, and more.
Note: When the U.S. federal government and the State of California prosecute a defendant on the same alleged offense, then the defense of double jeopardy does not usually apply. This is because these prosecuting authorities are considered separate sovereigns. For more information, see Double Jeopardy Defense.
Plea Bargain: A plea bargain is a negotiated agreement between the district attorney and the defendant, or between the judge and the defendant (plea to the court). Sometimes, the district attorney will agree to reduce the PC 26500 criminal charges sufficient to allow for lighter punishment, including the possible saving of the defendant’s firearm license. When a district attorney is amendable to a plea bargain, the defendant’s PC 26500 charges are usually dismissed pursuant to PC 1385.
Note: A plea bargain is not a true defense in that the defendant will usually still face some criminal conviction, but it is listed here under PC 26500 Defenses because a plea bargain can be a good option for many defendants where there is clear evidence of guilt without a reasonably valid defense.
Diversion Options: A "diverted" prosecution is a process whereby the district attorney suspends the prosecution of the defendant so that the defendant can fulfill probation like conditions. If the defendant fulfills the conditions, then the criminal charges are dismissed. A diversion is not available in every PC 26500 case, but where it is available, a diversion option is generally a good option (assuming the evidence against the defendant is otherwise strong and lacks a reasonably valid defense). Diversion can be especially helpful in avoiding firearm license forfeiture and professional licensing consequences.
Post-Conviction Options: If a defendant is convicted of PC 26500, post-conviction options include, but are not limited to, the following: withdraw a guilty plea, appeal the criminal conviction, expunge the criminal conviction, modify a probation sentence, and more.
To learn more about California Penal Code section 26500, contact our criminal defense lawyers today. Our criminal defense lawyers offer free first-visit, in-office consultations for any San Bernardino County misdemeanor of felony firearm offense, including alleged violations of PC26500(a) and PC26500(b). Our office is conveniently located in Redlands, near the cities of Fontana, Ontario, Rancho Cucamonga, Victorville, Hesperia, Yucaipa, Rialto, Chino, and Riverside, and we offer services for all San Bernardino County criminal charges. Our office is open seven days a week. Call today!
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