Per California law, it is illegal to possess or transport a machine gun (PC 32625).
Machine Gun Definition: According to California law, a “machine gun” is ‘any weapon that shoots, or is designed to shoot…, automatically more than one shot, without manual reloading, by a single function of the trigger (PC 32625 Abbrev.).
Note: A machine gun is a “fully automatic” firing firearm upon one pull of the trigger. A fully automatic firearm, or machine gun, is distinguished from semi-automatic firearm, where every round fired required a separate pull of the gun’s trigger.
Possession of a Machine Gun: Possession of a machine gun means actual or constructive control of the machine gun.
Actual control of a machine gun means the person is in physical possession of the firearm, or within close reach of the defendant. Constructive possession of a machine gun means the defendant has the right and ability to control the machine gun (i.e., machine gun is in the defendant’s car trunk or work locker).
Both actual and constructive possession of a machine gun are illegal in California per penal code 32625.
Transportation of Machine Gun: PC 32625 provides for criminal penalties when the defendant transports a machine gun. However, for purposes of most PC 32625 allegations, there is virtually no difference between possession of a machine gun and transportation of a machine gun.
PC 32625 Penalties
Possession or transportation of a machine gun is classified as a felony in California. If found guilty of PC 32625(a), the defendant could face up to three years in the county jail.
A probation sentence, without or without jail might be possible after a conviction of a PC 32625(a) violation.
Note: The “Triad” Sentencing for PC 32625(a) is sixteen months, two years, or three years of incarceration.
This means, that after conviction for PC 32625(a), the judge must sentence the defendant to either felony probation, sixteen months (low term), two years (mid-term), or three years (aggravated term) or county jail.
Whether the judge sentences a defendant to a felony probation sentence, or one of the three “triad” sentencing options depends on several factors, including the presence or absence of any mitigating or aggravating circumstances in the case, the defendant’s criminal history, and more.
Probation Sentence: A criminal probation sentence is a period of supervision. A probation sentence after a conviction for possession of a machine gun is allowed in PC 32625 cases, but a probation sentence is not guaranteed.
Whether the defendant is granted a probation sentence after a PC 32625(a) conviction depends on the defendant’s criminal history, the facts of the case, the terms of any negotiated plea bargain, the defendant’s likelihood of completing the terms of probation, and more.
A probation sentence after a conviction for possession of a machine gun will include “terms of probation,” such as pay a penalty fine (up to $10,000), pay a court security fee, remain free from new misdemeanor or felony arrests during probation, waive Search and Seizure rights during probation, and more.
Note: The length of felony probation after a conviction for PC 32625(a) is two years under California’s new probation laws (PC 1203.1).
PC 1170(h) Sentencing: PC 32625(a) is subject to penal code 1170(h) sentencing. This means that the defendant may have his jail sentence either split (served partially out of jail on work release, and partially in jail), or suspended (not served unless the defendant violates a term of probation).
PC 1170(h) sentencing also means that any incarceration related to PC 32625(a) is served in a local county jail, as opposed to a California state prison.
Three Strikes Law: Possession or transportation of a machine gun is not a “strike” offense under California Three Strikes Sentencing Law. This means that PC 32625(a) is not considered a serious offense per PC 1192.7, or violent offense per PC 667.5.
CIMT: Possession or transportation of a machine gun is not listed as crime involving moral turpitude (CIMT). A crime involving moral turpitude is any crime that is considered morally apprehensible or involves fraud or deceit.
Non-CIMT crimes, including PC 32625(a) violations, carry less direct negative consequences for immigration status, professional licensing status, and military service concerns. However, the length of jail sentence, and the fact of the conviction itself, can have severe negative impact on immigration, professional licensing, or military service status.
For more information, see Crimes Involving Moral Turpitude.
Firearm Prohibition: A conviction for possession or transportation of a machine gun will result in the defendant’s right to own or possess a firearm, firearm ammunition, or body armor, for life (subject to possible post-conviction restoration of firearm rights).
Additional Penalties: In addition to a possible jail or probation sentence, a conviction for PC 32625(a) will result in loss of immigration status, professional licensure (i.e., doctor, lawyer, dentist licensing, etc.), civil lawsuits, restitution, criminal protective orders (CPO), and more.
Corporate Penalty: PC 32625(a) allows for a penalty fine of up to $10,000 dollars in lieu of jail or probation sentence; however, this would likely only apply to a corporation as a defendant, such as a personal security company that is found non-culpable, but criminally liable, for the acts of its agent (i.e., security officers), when the corporation’s security officers carry machine guns without permission from the corporation.
PC 32625(b) Sentence: Manufacturing a machine gun is a closely related crime to possession or transportation of a machine gun. However, the crime of manufacturing a machine gun carries longer jail sentencing. The “Triad” sentencing after a conviction for manufacturing a machine gun is up to eight (8) years in jail (PC 32625(b)).
PC 32625(a) Defenses
Common defenses to allegations of possession or transportation of a machine gun include insufficient evidence to prove actual or constructive possession of the machine gun, statute of limitations, coerced confessions, “fleeting” possession, mistake of fact, duress, illegal search and seizure, entrapment, and more.
Insufficient Evidence: To prove the crime of possession of a machine gun requires the district attorney must prove that the defendant knew he was in possession of the fully automatic firearm. Lack of knowledge of possession of a machine gun sometimes occurs where the defendant is travelling in a borrowed vehicle without knowledge that the trunk contains a machine gun.
Statute of Limitations: The statute of limitations related to the crime possession or transportation of a machine gun (PC 32625(a)), or manufacture of a machine gun (PC 32625(b)) is three years from the date of the alleged violation.
Mistake of Fact: In some cases, the defendant might not be aware of the fully automatic nature of the firearm to which he has possession.
Example: David is not familiar with firearms, but he buys a handgun from his friend, Glen. David is not aware that Glen converted the handgun to a fully automatic machine gun and David has never fired the handgun. Thereafter, David is found to be in possession of the firearm.
Result: David is mistaken as to the handgun’s “machine gun” capabilities (mistake of fact); therefore, David might not be guilty of PC 32625(a), even though David might be guilty of lesser firearm offenses (i.e., illegal possession of a firearm).
Fleeting Possession: Fleeting possession of machine gun occurs where the defendant physically handles a machine gun (actual possession), but the defendant’s physical possession of the machine gun is only momentary, and only so long as to discover the identity of the item that he holds, or only so long as to render the firearm safe for others.
Example: David finds a machine gun in an alley. He picks up the machine gun because he is not sure whether the firearm is real or a toy (possession for identity). Thereafter, David realizes the gun is real and takes it to the police station for the safety of others (possession to render the firearm safe for others).
Duress: Duress defense occurs when a person is forced to do something, such as take possession or a machine gun, or transport a machine gun. The force related to duress does not have to be physical force, it can be threats of bodily harm to the defendant or a third person.
Duress defense in PC 32625(a) cases sometimes occurs where one gang member gives another gang member an order (threat) to take possession of a machine gun for some reason. In this situation, the defendant might have the defense of duress, so long as the defendant takes possession of the machine gun for no longer than the period of duress.
Plea Bargain: A plea bargain for a lighter sentence (sentence bargaining), or a lower criminal charge (charge bargaining) is usually available in most PC 32625 cases.
Of course, plea bargaining is not a true defense in the sense that the defendant is found not guilty, or the case is dismissed, but plea bargaining is mentioned here because the vast majority of non-violent, non-serious felony crimes, including possession or transportation of a machine gun, are resolved by negotiated plea bargain.
For more information on common defenses to PC 32625(a) offenses, including entrapment defense, illegal search and seizure, coerced confessions, and more, see Defenses to Crimes.
Post-Conviction Relief
After a conviction for possession or transportation of a machine gun the defendant might have several post-conviction options, including appealing the conviction, withdraw a guilty plea (PC 1018), expungement of the PC 32625 conviction (PC 1203.4), petition the court for a certificate of rehabilitation (PC 4852), petition to restore gun rights, petition to terminate a probation early (PC 1203.3), and more.
Note: Most diversion options, including Judicial Diversion, are not available in PC 32625(a) or 32625(b) cases. However, Military Diversion and Mental Health Diversion might be available in some limited situations.
If you or a loved one is charged with possession of a machine gun (PC 32625), or manufacturing a machine gun (PC 32625(b)), contact our deeply experienced criminal defense lawyers today for a free consultation.
Our team of successful and winning CA criminal defense lawyers, including trial lawyers, handle all felony and misdemeanor firearm offenses, including penal code 32625 violations. We have successfully defended in all Los Angeles, Orange, San Bernardino, and Riverside courts and we can help you too. Call today!
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