[Penal Code Section 12025(a)(1)]
During a car stop, law enforcement officers are trained for their safety to determine whether the driver they encounter is in possession of any weapons or firearms. To promote their safety, the police are entitled to ask the driver to exit his or her vehicle and whether he or she is in possession of any weapons. Although the driver commits no crime by refusing to answer the officer's question(s), the driver often times does. All too often, we hear that the driver admits to the officer that he or she is carrying a firearm within the vehicle.
Under the California Criminal Jury Instructions ("CALCRIM"), in order for the District Attorney to prove that you committed the offense of carrying a concealed firearm in your vehicle, the District Attorney needs to prove:
- The defendant carried within a vehicle a firearm capable of being concealed on the person;
- The defendant knew the firearm was in the vehicle;
- The firearm was substantially concealed within the vehicle;
- The vehicle was under the defendant's control or direction.
Interestingly, the CALCRIM indicates that the firearm must be substantially concealed within the vehicle. Theoretically, this means that if the firearm is not substantially concealed in the vehicle, i.e., is on the passenger seat, then the individual is not in violation of this statute.
However, the CALCRIM appears to be in conflict with the statute itself, which just requires that the firearm be concealed within the vehicle. According to Penal Code section 12026.1 the only lawful carrying of a firearm in a vehicle is as follows:
(1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle other than the utility or glove compartment; and
(2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container.
Importantly, the term "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device.
If you have been charged with carrying a concealed firearm within a vehicle you need Ahmed & Sukaram, Attorneys at Law on your side. This offense is chargeable either as a felony or a misdemeanor. Even when this offense is charged as a misdemeanor, certain District Attorney's Offices, such as the one in San Francisco, requests that defendants who suffer a conviction for this offense get a 90 day minimum jail sentence from the court. Although no 90 day minimum sentence is required for a first time offender, you can get stuck with a conviction and a bad deal if you don't have a hard nosed criminal defense lawyer on your side. Contact Ahmed & Sukaram, Attorneys at Law today to help you combat the District Attorney's Office and to stand up for your rights.