In California, a minor may not carry a firearm which is capable of being concealed upon her person. There are several exceptions to this law (see exceptions below).
PC 29610 Law
A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person (PC 29610).
Exceptions: Section 29610 shall not apply if one of the following circumstances exists:
The minor is accompanied by a parent or legal guardian, and the minor is actively engaged in, or is in direct transit to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves this use of a firearm (PC 29615(a)).
The minor is accompanied by a responsible adult, the minor has the prior written consent of a parent or legal guardian, and the minor is actively engaged in, or is in direct transit to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 29615(b)).
The minor is at least 16 years of age, the minor has the prior written consent of a parent or legal guardian, and the minor is actively engaged in, or is in direct transit to or from, a lawful recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 29615(c)).
The minor has the prior written consent of a parent or legal guardian, the minor is on lands owned or lawfully possessed by the parent or legal guardian, and the minor is actively engaged in, or is in direct transit to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 29615(d)).
Note: A minor is a person under the eighteen (18) for purposes of PC 29610 Law.
PC 29610 Penalties:
Note: Many PC 29610 cases are handled in juvenile delinquency court. The law, penalties, and common defenses to PC 29610 charges are very similar regardless of whether or not the charges are brought in juvenile delinquency court or adult superior court. However, there are major differences in the ways these cases are handled by the prosecuting attorneys, probation officers, and judges. For more information, see Juvenile Delinquency Court.
Felony v. Misdemeanor Charges: The crime of minor in possession of a firearm is classified as a wobbler. A wobbler is a crime that may be charged either as a felony, or alternatively as a misdemeanor. Basically, a felony charge is considerably more severe in terms of penalties than a misdemeanor charge. Whether or not a district attorney charges felony or misdemeanor charges in a PC 29610 case depends largely on the defendant’s criminal history, if any, and whether or not the defendant is charged with any related crimes, such a crimes related to criminal street gangs, possession of firearm at school, etc.
Felony Jail Sentence: When minor in possession of a firearm is charged as a felony the defendant may face up to sixteen months, two years, or three years in jail. The defendant may also be sentenced to probation, with or without jail (See below at Probation Sentence). The exact sentence that the defendant receives after a conviction for felony PC 29610 depends on many factors, including the defendant’s criminal history (if any), the terms of any negotiated sentence after plea bargain with the district attorney, and the presence or absence of other mitigating or aggravating factors in the facts of the case.
Misdemeanor Jail Sentence: When minor in possession of a firearm is charged as a misdemeanor the defendant may face up to one hundred eighty (180) days in the county jail. The defendant may also be sentenced to a probation sentence, with or without some actual incarceration as part of that probation sentence (See Probation Sentence below).
Probation Sentence: A probation sentence is a period of supervision in lieu of an actual jail sentence. Probation sentences are allowed in both felony and misdemeanor PC 29610 cases so long as there are no penalty enhancements added to the criminal charges that otherwise forbid a probation sentence. Whether or not a defendant convicted of PC 29610 receives a probation depends on many factors, including the defendant’s criminal history, the terms of negotiated plea bargain with the district attorney, the level of sophistication of the offense, the presence of absence of any related criminal charges, the defendant’s age, and more.
Note: A probation sentence requires the defendant to fulfill terms or probation (conditions). The terms of probation vary from case to case, but generally, the terms of probation in a PC 29610 case include: commit no new offense (misdemeanor or felony), pay fines, fees, and restitution, do not associated with persons known to be on felony probation (felony terms), and more. If the defendant violates any of the terms of probation then she may sentenced to actual jail. For more information, see Felony v. Misdemeanor Probation & Violation of Probation.
PC 1170(h) Sentencing: A felony conviction of minor in possession of a firearm is subject to PC 1170(h) sentencing. Basically, PC 1170(h) sentencing means that the defendant might be able to split or suspend an actual jail sentence. A split jail sentence is jail sentence that is served partially in jail and partially out of jail on work release (See Work Release below). A suspended jail sentence is a jail sentence that is not served unless the defendant violates a term of her out-of-custody release. Also, PC 1170(h) sentencing means that the defendant will serve any incarceration in a local county jail as opposed to a state prison.
For example, if the defendant is convicted of felony PC 29610, and she is thereafter sentenced to two years of jail, then she might be allowed to split that jail sentence in half and serve only one year (instead of two). A split sentence is also subject to good conduct credits (See Below), which means that the two year sentence that the defendant received could actually be reduced to only six (6) months in jail, or less)
Work Release: Work release is a type of manual labor that calls for the defendant to collect garbage around freeways, jails, prisons, county parks, and more. Work release is a common alternative to jail sentence that is ordered in many PC 29610 cases as a term of probation. Essentially, this means that if the defendant is placed on probation, and she is ordered to serve a certain amount of days in jail as part of that probation sentence, then the judge will usually, but not always, allow the defendant to serve that jail commitment alternatively on work release (or house arrest). Work release is subject to good conduct credits the same as if the defendant was actually incarcerated in jail. For more information, see Work Release & House Arrest.
Good Conduct Credits: Good conduct credit represents an amount of time that a person’s jail (or prison) sentence is reduced for her good behavior while she is in jail. In PC 29610 cases, the good conduct credit is up to fifty percent (50%) of the defendant’s jail or work release sentence.
For example, if the defendant is placed on probation and ordered to serve ninety (90) days of work release as a condition of probation, then the defendant might only have to serve forty-five (45) days of work release if she serves those forty-five (45) days with good behavior. What constitutes “good behavior” while in jail or work release is determined by the authorities at the county jail (the county jail usually monitors the defendant’s work release sentence); however, good conduct is generally intended to mean that the inmate follows the rules of the jail (or work release) and she remains free of new criminal charges, including possession of contraband charges while in jail.
CIMT: The crime of minor in possession of a firearm is not a crime involving moral turpitude (CIMT). A crime involving moral turpitude is a crime that involves deceit or is otherwise considered a crime that involves depravity, wickedness, or immorality. Also, crimes involving moral turpitude carry punishments beyond criminal court for non-United States citizens, licensed professionals, military personnel, and character impeachment in subsequent legal proceedings.
Note: Immigration law is ever-changing. If you are charged with PC 29610 it is important to contact a criminal defense attorney or immigration attorney immediately to ascertain the most recent immigration consequences related to PC 29610 charges (or any criminal charges). Also, the fact that a crime is considered a CIMT, or not a CIMT, is not the only factor in determining immigration consequences related to that criminal offense.
For example, a non-United States citizen may suffer immigration consequences for any crime where the defendant is ordered to serve more than a year in jail (aggravated felony). This is true even if the non-United States citizen is convicted of a non-CIMT. Also a non-United States citizen may suffer immigration consequences for a misdemeanor conviction of PC 29610 when she has a prior criminal convictions, even if those prior criminal convictions are for non-CIMT and do not include felony convictions. For a further discussion, see Immigration Consequences for non-Citizens.
Three Strikes Applications: The crime of minor in possession of a firearm is not a strike offense as that term is defined under California’s Three Strikes Law. Also, PC 29610 crimes are not considered serious or violent offenses as those terms are defined in California law at PC 1192.7 and PC 667.5, respectively. Keep in mind that PC 29610 charges are often charged along with other crimes that could be considered strike offenses, such as criminal threats, assault with a firearm, robbery, dissuading a witness, etc.
Firearm Prohibition: If the defendant is convicted of minor in possession of a firearm she will be prohibited from owning or possessing a firearm for at least ten years (misdemeanor), and possibly for life (felony). The defendant might later restore those firearm rights in some cases, so long the underlying PC 29610 charge is not related to facts that involve domestic violence (Federal firearm prohibition for life). For more information, see Restore Firearm Rights.
Additional Punishment: In addition to the penalties and punishments listed above, if the defendant is convicted of PC 29610, she may face any of the following additional penalties and punishments: loss of rights to adopt a child in family law proceedings, loss of driving privileges is the crime is alleged to have occurred in a vehicle, civil lawsuits, restitution, criminal protective orders, subsequent parole violation (or probation violation), harsh parole or probation terms, court fines and fees, and more.
Note: The scheduled bail amount for PC 29610 charges in San Bernardino County is $5,000 (misdemeanor), or $25,000 (felony) . This amount may be reduced, increased, or waive (Own Recognizance Release). To learn more, see Bail Information.
PC 29610 Defenses:
Common defenses to a charge of minor in possession of a firearm include: statute of limitations (three years for misdemeanor or felony charges of PC 29610), insufficient evidence, illegal search and seizure, entrapment, coerced confession or statement, self-defense, defense or others, Necessity, and insanity. A complete discussion of the different types of common defenses to crime can be found at Defenses to Crime. However, a few common defenses to PC 29610 charges deserve special attention:
Statute of Limitations: The statute of limitations is a time limit placed on a prosecuting agency (or a plaintiff in a civil lawsuits). The prosecuting agency is barred from filing criminal charges against a defendant after the time limit expires on that particular crime as it relates to that defendant. Normally, most misdemeanor cases have a statute of limitations of one year from the date of the alleged criminal conduct. However, in cases where the alleged offense is a wobber (may be charged as a felony or as a misdemeanor) then the statute of limitations for a misdemeanor violation is extended to the statute of limitations related to the crime’s felony counterpart.
As stated, PC 29610 crimes are wobbler crimes; therefore, the statute of limitations for both misdemeanor and felony offenses of PC 29610 is three years from the date of the alleged offense. For more information, see Statute of Limitations in Criminal Cases.
Insufficient Evidence: In criminal cases, insufficient evidence simply means not enough evidence to prove beyond a reasonable doubt that the defendant committed the alleged offense. Sometimes, a PC 29610 case involves evidence that is later deemed unusable by the district attorney and, without that evidence, the prosecutor does not have enough evidence to prove guilty beyond a reasonable doubt.
For example, if a witness against the defendant is deemed unreliable, and that witness’ testimony was the only evidence against the defendant, then the balance of the prosecutor’s evidence against the defendant might be insufficient to prove guilty beyond a reasonable doubt.
Note: An insufficient evidence defense does not require the defendant to do anything other than rely on the prosecutor’s burden to prove every element of the charged offense beyond a reasonable doubt.
For example, in a PC 29610 case, if the prosecutor cannot prove that the defendant knew she possessed a genuine firearm, as opposed to a toy firearm, then the defendant should be found not guilty of the charged offense. This is true even if the defendant offers no evidence in her defense. Essentially, in this scenario, the evidence is insufficient to prove guilty beyond a reasonable doubt and it is the district attorney’s burden to make that proof.
Note: The district attorney must prove beyond a reasonable doubt that the defendant possessed a firearm in PC 29610 cases. Possession can be constructive (right to control an object), or actual (on one’s person). However, sometimes a defendant will have actual possession of an object, but nevertheless, she should not be charged with actual possession because her possession of the object is fleeting and the defendant does not known what she actually possesses. This happens in PC 29610 crimes where the minor is handed a gun, but the defendant immediately gives the gun back to the person who handed it to her (or a third person) after the defendant realizes it was a real gun that handed to her.
Necessity: Necessity is a defense to PC 29610 charges where the minor takes possession of the firearm in order to avoid a greater harm. For example, if the defendant finds a gun in the park in the middle of the night, and the defendant takes possession of that gun so that no child will find the gun the next day, then the defendant will likely have a valid defense of necessity. This is because the defendant took possession of the gun only to avoid a possible greater harm (accidental discharge of the gun by a child in the park the next day). The defense of necessity is valid if the defendant takes possession of the firearm for no longer than necessary under the circumstance (i.e. call police to report the finding of the firearm, etc.). For more information, see Defense of Necessity.
Duress: A defense of duress might be allowed in some minor in possession of a firearm charges where the defendant is threatened with bodily harm if she does not take possession of the firearm. This can occur where the minor is threatened by gang members to take possession of the firearm. The defense of duress is only available in PC 29610 cases as long as the defendant safely surrenders the firearm immediately after the threat ceases to exist. For more information. See Defense of Duress.
Self-Defense: A person is privileged to used self-defense to defense herself against an imminent threat of bodily harm. In fact, the defendant may use deadly force to protect herself from the imminent threat of death or severe bodily injury to herself. In minor in possession of a firearm cases, the defendant might claim that she took possession of the firearm in order protect herself from an imminent threat of deadly force against her. Of course, once the threat of deadly force ceases to exist, the minor must relinquish the firearm for the defense to be valid.
Insanity: An insanity defense might be used in a PC 29610 case if the defendant, due to a defect or disease of the mind, does not know the different between right and wrong, or does not know the nature and the quality of her actions.
For example, if the defendant takes possession of a firearm, but because of a mental defect, she believes the firearm is a toy, then the defendant might use a defense of insanity to defeat the criminal charge. The defense of insanity may also apply to the defendant’s ability to understand the criminal charges against her. Also, the defense of insanity is not a complete defense in certain situations where the defendant's competency to stand trial are at issue. The defense of insanity is a complex issue discussed further at Defense of Insanity.
Negotiated Plea: A negotiated plea bargain, either between the court and the defendant, or the district attorney and the defendant (more common), is not a true defense in the sense that the charges are dismissed without conditions, or the defendant is found not guilty. Rather, a negotiated plea bargain is the result in many criminal cases where the evidence against the defendant is fairly clear and unassailable and both the defendant and the district attorney seek to resolve the case early in the proceedings.
For example, in cases of minor in possession of a firearm, if the defense does not have a clear technical defense, such as strong illegal search and seizure argument, or a strong affirmative defense, the case may nevertheless be negotiated in a way that is tolerable to both the defendant and the district attorney.
Note: Negotiated pleas are common in almost all types of criminal cases. But before a defendant pleads guilty (or no contest) in any criminal case, she should discuss her options and possible collateral consequences with a criminal defense lawyer.
For example, a seemingly good offer by the district attorney to the defendant for a probation sentence, without jail or work release conditions, after an alleged misdemeanor charge of PC 29610, might sound like a good offer at first, but without knowing the strength of the evidence, or all of the collateral consequences, such as immigration consequences, or professional licensing consequences, the defendant should not necessarily rush to accept that seemingly good offer.
Post-Conviction Issues: Post-conviction options related to minor in possession of a firearm include: Appeals (Petition to overturn the criminal conviction), petition to restore firearm rights, expunge a criminal record, petition for a certificate of rehabilitation, petition to terminate probation (or parole), petition for resentencing (PC 1170(d), and Prop 47 issues), and more.
Note: If the defendant was arrested for the crime of minor in possession of a firearm, either as a felony, or as a misdemeanor, but the crime was never prosecuted for some reason, or the defendant was ultimately found not guilty of the alleged offense, then she might file a petition to seal and destroy her criminal arrest record. There are limitations that might apply in PC 29610 cases. For more information, see Petition to Seal and Destroy a Criminal Arrest Record.
To learn more about the crime of minor in possession of a firearm, or PC 29610, contact our criminal defense lawyers today. Our criminal defense lawyers have successfully handled hundreds of misdemeanor and felony charges, including hundreds of gun charges. We offer defense services to all San Bernardino County cities, including Rancho Cucamonga, Redlands, Yucaipa, Fontana, and Rialto. We can even visit local jail for consultations for a low cost, including West Valley Detention Center, Glen Helen Rehabilitation Center, and more. Call today!