Illegal Possession of Assault Rifles in San Diego California Weapons Offenses Manufacturing, selling, lending, and/or possessing assault weapons or .50 BMG rifles Penal Code 12280 PC To be convicted of this crime, the following requirements must be met: (1) Any person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon or any .50 BMG rifle, except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years. (b) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison… (c) Any person who, within this state, possesses any .50 BMG rifle, except as provided in this chapter, shall be punished by a fine of one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed one year, or by both that fine and imprisonment.”) Possession The terms “manufacturing, transporting, selling, lending, etc.” require little explanation. There are two types of possession under California law and these are actual and constructive. “Actual possession” means that you are actually possessing the goods, you have them in your direct control. “Constructive possession” means that you can access the firearm if necessary of that you have a right to control that firearm. Example: A gun that Darin is holding in his hands when the police arrest him is in his actual possession. A gun that Victor has in the trunk of his car or in his basement is constructive possession of the weapon. Although he was not in the actual possession at the time of the arrest, Victor would still be in possession of the weapon. Exact Definitions A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge [and that is not an assault weapon or a machine gun]. A. 50 BMG cartridge is a cartridge that is designed and intended to be fired from a center fire rifle and that has all three of the following characteristics: 1. The overall length is 5.54 inches from the base of the cartridge to the tip of the bullet; 2. The bullet diameter for the cartridge is from .510 to, and including, .511 inch; AND 3. The case base diameter for the cartridge is from .800 inch to, and including, .804 inch.] Knowingly To be convicted of PC 12280 you must have knowingly committed the offense. There are several defenses to this. If you did not know the gun was real then you did not knowingly commit the offense. If you did not know the gun was in your actual or constructive possession then you did not knowingly commit the offense. You also have to have known that this firearm possessed the characteristics of a assault weapon. This can be shown if you were just handed the gun or rarely can be shown if you have very little knowledge of guns or of common measurements. It is often very hard to prove what was going on in someone’s mind at the time the crime is allegedly committed. This is where an experienced trial attorney can help the jury understand the exact mindset of both parties at the time of the alleged crime. Defenses Illegal Search One common defense to these weapons crimes is an illegal search. The police must have the proper cause to search you and your person. Often the police get overzealous and make procedural mistakes that make the search illegal. A skilled defense attorney will be able to exclude this evidence at trial resulting in a dismissal or a not guilty verdict. Defense to the Elements As noted above there are many defenses to the elements of this crime. One may not have been in possession of the weapon or they may not have knowingly committed the offense.
Bradley Corbett is a criminal defense attorney in San Diego. He graduated from Brigham Young University in Provo Utah in 2004. Later he enrolled at Thomas Jefferson School of Law in San Diego where he participated in a prestigious internship program with the Los Angeles County Public Defender. Since then he has handled over 2,000 cases.