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  #1  
Old 11-09-2017, 9:37 AM
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Question Loaded Long Gun in vehicle

PENAL CODE 25850 Reads:

(a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

My main question is for hunting: Is it legal to remove the round from the chamber to avoid Fish and Game code definition of loaded and leave rounds in the magazine while driving on a public road in unincorporated portions of the county?

The reason I ask is it seems the PC above differentiates between "public street" and "prohibited area" which reads to me like they are not one and the same... In other words it reads like you would have to be on a public street that happens to be surrounded by a prohibited area to be in violation. Thoughts?
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Old 11-09-2017, 9:46 AM
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Is it legal to shoot from a road? Since my understanding is that it is not, would that not make the roadway a prohibited area? Is it easier to unload, or fight the charge?
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Old 11-09-2017, 9:50 AM
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Originally Posted by P5Ret View Post
Is it legal to shoot from a road? Since my understanding is that it is not, would that not make the roadway a prohibited area? Is it easier to unload, or fight the charge?
No doubt it is easier to unload than fight a charge, but do we unload unecessarily is the question...
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Old 11-09-2017, 10:54 AM
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For 12031 in the opinion, substitute 25850, the renumbered 12031.




OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA
Opinion No. 68-175
1968 Cal. AG LEXIS 59; 51 Ops. Cal.Atty. Gen. 197
October 3, 1968

SYLLABUS:


FIREARMS -- The term "firearm" includes rifles and shotguns; firearms may be carried in areas where no regulations exist; "every public road or highway" is a "prohibited area"; "public street" is not synonymous with "public road or highway"; and "safety zone" is a "prohibited area" only when it coincides with a "public place."



REQUEST BY:

DIRECTOR, DEPARTMENT OF FISH AND GAME




QUESTION:

The Honorable Walter T. Shannon, Director, Department of Fish and Game, has requested an opinion on the following questions:

1. Does the term "firearm" as used in Penal Code section 12031 include rifles and shotguns?

2. Does Penal Code section 12031 prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms?

3. Does Penal Code section 374c make every "public road or highway" a "prohibited area," as defined in section 12031?

4. Is the term "public street" as used in section 12031 synonymous with "public road or highway" as used in Penal Code section 374c?

5. Would the "safety zone" described in Fish and Game Code section 3004 be considered a "prohibited area" as defined in section 12031(d)?



The conclusions are:

1. The term "firearm" as used in Penal Code section 12031 includes rifles and shotguns.

2. Penal Code section 12031 does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms.

3. Penal Code section 374c does make every "public road or highway" a "prohibited area" as defined in section 12031.

4. The term "public street" as used in section 12031 is not synonymous with "public road or highway" as used in Penal Code section 374c.

5. The "safety zone" described in Fish and Game Code section 3004 is a "prohibited area" as defined in section 12031, but carrying of loaded weapons is proscribed therein only when it coincides with a "public place."
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Old 11-09-2017, 11:23 AM
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Thank you, that is very clear. Are legal opinions from the state AG binding on all prosecutors in the state?
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Old 11-09-2017, 12:05 PM
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Sure was nice being in Wyoming for two weeks hunting. Open carry everywhere.
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Old 11-09-2017, 1:03 PM
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Quote:
Originally Posted by Huntsprig View Post
For 12031 in the opinion, substitute 25850, the renumbered 12031.




OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA
Opinion No. 68-175
1968 Cal. AG LEXIS 59; 51 Ops. Cal.Atty. Gen. 197
October 3, 1968

SYLLABUS:


FIREARMS -- The term "firearm" includes rifles and shotguns; firearms may be carried in areas where no regulations exist; "every public road or highway" is a "prohibited area"; "public street" is not synonymous with "public road or highway"; and "safety zone" is a "prohibited area" only when it coincides with a "public place."



REQUEST BY:

DIRECTOR, DEPARTMENT OF FISH AND GAME




QUESTION:

The Honorable Walter T. Shannon, Director, Department of Fish and Game, has requested an opinion on the following questions:

1. Does the term "firearm" as used in Penal Code section 12031 include rifles and shotguns?

2. Does Penal Code section 12031 prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms?

3. Does Penal Code section 374c make every "public road or highway" a "prohibited area," as defined in section 12031?

4. Is the term "public street" as used in section 12031 synonymous with "public road or highway" as used in Penal Code section 374c?

5. Would the "safety zone" described in Fish and Game Code section 3004 be considered a "prohibited area" as defined in section 12031(d)?



The conclusions are:

1. The term "firearm" as used in Penal Code section 12031 includes rifles and shotguns.

2. Penal Code section 12031 does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms.

3. Penal Code section 374c does make every "public road or highway" a "prohibited area" as defined in section 12031.

4. The term "public street" as used in section 12031 is not synonymous with "public road or highway" as used in Penal Code section 374c.

5. The "safety zone" described in Fish and Game Code section 3004 is a "prohibited area" as defined in section 12031, but carrying of loaded weapons is proscribed therein only when it coincides with a "public place."
Ok here is my concern with the above opinion:


Penal Code 17030: As used in this part, “prohibited area” means any place where it is unlawful to discharge a weapon.
(Added by Stats. 2010, Ch. 711, Sec. 6. Effective January 1, 2011. Operative January 1, 2012, by Sec. 10 of Ch. 711.)

As you can see, 17030 seems to have redefined prohibited area from the 1968 legal opinion. Would you agree?
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Old 11-09-2017, 3:30 PM
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Quote:
Originally Posted by sfpcservice View Post
Ok here is my concern with the above opinion:


Penal Code 17030: As used in this part, “prohibited area” means any place where it is unlawful to discharge a weapon.
(Added by Stats. 2010, Ch. 711, Sec. 6. Effective January 1, 2011. Operative January 1, 2012, by Sec. 10 of Ch. 711.)

As you can see, 17030 seems to have redefined prohibited area from the 1968 legal opinion. Would you agree?
No, I would not.

It looks to me that 17030 was removed from 25850 given it's own PC section, it was originaly included 12031.

So, the AG would have considered 17030 in the 1968 opinion.



PC 12031

(f)As used in this section, “prohibited area” means any place where it is unlawful to discharge a weapon.

http://www.oclaw.org/research/code/c...l#.WgTfhtCnHcc

Last edited by Huntsprig; 11-09-2017 at 5:09 PM..
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Old 11-09-2017, 3:39 PM
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Quote:
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Thank you, that is very clear. Are legal opinions from the state AG binding on all prosecutors in the state?
I'm not sure.

I do believe that an AG opinion carries a lot of weight with the court but I don't think it is binding.
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Old 11-09-2017, 3:46 PM
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Quote:
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I'm not sure.

I do believe that an AG opinion carries a lot of weight with the court but I don't think it is binding.
And what's your take on my post above about PC17030?
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Old 11-09-2017, 3:47 PM
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Sorry didn't see that you answered already
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Old 11-09-2017, 3:51 PM
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What was penal Code 374c?
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Old 11-09-2017, 3:59 PM
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Quote:
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What was penal Code 374c?
PC 374c.
Every person who shoots any firearm from or upon a public road or highway is guilty of a misdemeanor.
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Old 11-09-2017, 4:04 PM
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If you would like to read it, here is the complete AG opinion.

http://www.californiaopencarry.org/AG_1968_op.pdf
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Old 11-09-2017, 5:13 PM
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So in your opinion, if you are in a non prohibited part of the county, you can open carry a loaded firearm in public? How about while driving?
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Old 11-09-2017, 5:23 PM
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I guess what I'm getting at is if you are in a non prohibited unincorporated area, you could open carry whatever you want, across or along a road, or you could be driving down I-5 with a loaded pistol on your hip as long as you got on and got off and didn't pass through a prohibited area? Sounds too good to be true...
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Old 11-09-2017, 5:41 PM
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Quote:
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So in your opinion, if you are in a non prohibited part of the county, you can open carry a loaded firearm in public? How about while driving?
Yes. No.

Quote:
Originally Posted by sfpcservice View Post
I guess what I'm getting at is if you are in a non prohibited unincorporated area, you could open carry whatever you want, across or along a road, or you could be driving down I-5 with a loaded pistol on your hip as long as you got on and got off and didn't pass through a prohibited area? Sounds too good to be true...
Road/highway = prohibited area.
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Old 11-09-2017, 5:46 PM
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Quote:
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Yes. No.


Road/highway = prohibited area.
Thanks for the reply. If you havent, please read the AG opinion above and tell me if that changes your answer...
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Old 11-09-2017, 5:50 PM
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Quote:
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Thanks for the reply. If you havent, please read the AG opinion above and tell me if that changes your answer...
Does not change.

AG opinion was released in 1968 when prohibited areas were defined differently.

Since, then CA laws have changed and expanded what is a prohibited area.
^Expanded to include all roads/highways.
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Old 11-10-2017, 6:59 AM
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Opinions are like $$holes....

My $0.02... I have seen a game warden cite and confiscate for loaded weapon in a vehicle simply by LEANING a gun against a vehicle with rounds in the magazine ONLY. The issue he made clear is it wasn't a road issue as we were half a mile from anything resembling two ruts near each other, it was a loaded-gun-touching/inside-vehicle-while-hunting issue. Granted, this was hunting regs, not PC..

I'd say it is pretty indefensible on a road of any kind... would love to know if anyone has more recent case law or opinions on the matter.
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Old 11-10-2017, 9:33 PM
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Opinions are like $$holes....

My $0.02... I have seen a game warden cite and confiscate for loaded weapon in a vehicle simply by LEANING a gun against a vehicle with rounds in the magazine ONLY. The issue he made clear is it wasn't a road issue as we were half a mile from anything resembling two ruts near each other, it was a loaded-gun-touching/inside-vehicle-while-hunting issue. Granted, this was hunting regs, not PC..

I'd say it is pretty indefensible on a road of any kind... would love to know if anyone has more recent case law or opinions on the matter.
Id say you could have won that one, that particular code requires there to be one in the pipe.
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Old 11-10-2017, 11:58 PM
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Id say you could have won that one, that particular code requires there to be one in the pipe.
Correct.

Ca PC is either mag or chamber.

Fish cops are sworn state police. They can choose to enforce any Ca law they want. Even traffic tickets.
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