California has some outrageously stiff penalties when it comes to assault weapons. For example, under California Penal Code 30600 PC, if an individual is convicted of manufacturing, distributing, importing, transporting, keeping for sale, offering for sale, giving away or lending an assault weapon or Browning Machine Gun (“BMG”) rifle, that individual can face a felony conviction punishable by up 4, 6 or 8 years in custody! If you give your minor child an assault weapon that you incorrectly believed was grandfathered under California law you can face an additional year in custody on top of the potential 8 years that you are already facing. If you make the mistake of importing more than one assault weapon that you thought was California legal, you can face a separate charge and punishment on each firearm that you import into the state.
What is an Assault Weapon?
In California, there are three categories of assault weapons:
- Category 1 Assault Weapons: this includes firearms listed in the 1989 Roberti Roos Assault Weapons Control Act (AWCA) and those added in 1991 which included, made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S. A listing of this category of prohibited assault weapons are found in California Penal Code section 30510. It is no longer possible to lawfully register one of these assault weapons, as the time limitation to do so expired on or before March 31, 1992.
- Category 2 Assault Weapons: this includes over 60 types of Colt AR-15 and AL “series” firearms. A listing of these Category 2 assault weapons are found in the California Code of Regulations, Title 11, section 5499. The deadline to have lawfully registered these assault weapons was on or before January 23, 2001. Examples of category 2 assault weapons include the Norinco MAK 90 and the Colt Sporter. Please be aware that a frame or receiver of any Category 1 or 2 assault weapon may be considered a “firearm” and accordingly an assault weapon under California Penal Code section 16510, subdivision (b)!
- Category 3 Assault Weapons: In 1999 the AWCA was amended to add a third category of assault weapons that are defined based upon their characteristics. Falling within this category are now certain semi-automatic rifles, pistols and shotguns. Under California law, these assault weapons are defined in California Penal Code section 30515. Penal Code section 30515 is partially reproduced below with an emphasis added to designate the characteristics of the prohibited rifles, pistols and shotguns.
§ 30515. Assault weapon further defined
(a) Notwithstanding Section 30510, “assault weapon” also means any of the following:
(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:
(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip.
(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.
(3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches.
(4) A semiautomatic pistol that has the capacity to accept a detachable magazine and any one of the following:
(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer.
(B) A second handgrip.
(C) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning the bearer’s hand, except a slide that encloses the barrel.
(D) The capacity to accept a detachable magazine at some location outside of the pistol grip.
(5) A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds.
(6) A semiautomatic shotgun that has both of the following:
(A) A folding or telescoping stock.
(B) A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip.
(7) A semiautomatic shotgun that has the ability to accept a detachable magazine.
(8) Any shotgun with a revolving cylinder. [*Notice that this shotgun does not need to be semi-automatic].
Penalties for Possession of an Assault Weapon
In courts across the state of California prosecutors have the discretion in deciding whether or not to charge simple possession of an assault weapon as either a felony or a misdemeanor offense. District Attorney’s use their discretion based upon factors such as, but not limited to, the defendant’s criminal history, the number of assault weapons possessed, the location of the possession of the assault weapons, whether or not any other crimes were committed or threatened to be committed, the type of assault weapon possessed, the defendant’s knowledge regarding the illegality to possess the assault weapons, etc. As a felony, an individual can face up to three imprisonment and a $10,000 fine or both. Please note that probation is an option for the court to impose in a felony conviction for simple possession of an assault weapon. As a misdemeanor, the crime is punishable by up to one year in the county jail and a $1,000 fine or both. Beware, some counties like San Francisco seek to impose a 90 day jail sentence on even a first misdemeanor offense for simple possession of an assault weapon.
Defenses Against Assault Weapon Charges
If you are charged with a crime under Penal Code section 30600 or 30515 you are going to need an a criminal defense lawyer who knows about firearms and the myriad of laws relating to them. When someone calls the National Rifle Association with a firearms related legal question in Northern California the N.R.A. tells them to call me, Nafiz M Ahmed. I have seen cases where the only reason that the police discover your firearms are due to an unlawful search of an individual’s vehicle or home. If a judge agrees that the search was unlawful, the police officer’s discovery of your assault weapons will be suppressed from evidence, i.e., cannot be used against you in court. Alternatively, I have seen cases where the police and prosecutor allege that the firearm is an assault weapon when in fact the firearm is not an assault weapon!
There may be other times where you are charged with a felony and need to get your offense reduced to a misdemeanor and to avoid jail time. I have personally handled cases where the prosecutor or the judge has reduced the charge to a misdemeanor and helped my client to avoid jail time. Some of my clients have been simply slapped on the wrist with a minimal fine, ordered to do community service, and had probation denied without any other punishment imposed. If you are charged with a firearms related offense and you don’t want to go to jail, contact me today.