Question about carrying unloaded weapon

[laurelpark]

In another thread, I asked a question that I had been wondering about for some time.

A LEO buddy of mine once told me that if I were to carry an unloaded gun in one pocket, and keep the loaded magazine in another pocket, it's not technically "carrying a concealed weapon" and if you get caught, it's treated as an infraction. I never really believed it - not that I don't trust him in particular, I just don't trust anyone that much. It seems like too big of a loophole that someone would pass a law that makes it illegal.

Anyone know what the real story is with this? I know laws have changed over the years (it used to be that you could open carry an unloaded weapon - now you can't). It was a few years ago that he told me this, but I've always had it in the back of my mind as a "is that for real?" kind of question.

[P5Ret]

The penal code makes no distinction between loaded or unloaded when concealed. All it actually says about ammo is immediate possession, or readily accessible to that person. I think mag in your other pocket would qualify for that. So unless it was changed do to the farce of Prop 47 it is still a misdemeanor, not an infraction.

[M1NM]

So unless it was changed do to the farce of Prop 47 it is still a misdemeanor, not an infraction.

Unless the gun isn't registered to you then it's a felony.

[Quiet]

Summary of conceal carry without a valid permit:
One misdemeanor for carrying an unloaded handgun registered to you. [PC 25400(c)(7)]
Two misdemeanors for carrying a loaded handgun registered to you. [PC 25400(c)(7) & 25850(c)(7)]
One felony for carrying an unloaded handgun not registered to you. [PC 25400(c)(6)]
Two felonies for carrying a loaded handgun not registered to you. [PC 25400(c)(6) & 25850(c)(6)]

In addition...
Misdemeanor charges include probation (2-5 years depends on the judge) in which the person can not own/possess any firearms/ammo.
Felony charges include not being able to legally own/possess any firearms/ammo for life.

[laurelpark]

OK - that's good to know. Thanks!!

I always sensed that he might not have been right about that one - although this was many years ago and maybe he was right at the time...

[Decoligny]

The penal code makes no distinction between loaded or unloaded when concealed. All it actually says about ammo is immediate possession, or readily accessible to that person. I think mag in your other pocket would qualify for that. So unless it was changed do to the farce of Prop 47 it is still a misdemeanor, not an infraction.

The Penal codes dealing with "immediate possession" are primarily the ones dealing with possession of guns by gang members or those intent on committing a felony.

[RickD427]

The Penal codes dealing with "immediate possession" are primarily the ones dealing with possession of guns by gang members or those intent on committing a felony.

Decoligny,

You're substantially correct here, but we need to remember that the felony CCW provision applies where a person has an unregistered weapon and has ammunition in their possession (as opposed to the weapon being loaded).

Here is the long version that I posted in the other thread on this subject:

_____________________________

CCW (PC 25400) and Carrying a Loaded Firearm (PC 25850) are two different offenses. There is no requirement for the weapon to be loaded in order for the CCW crime to be committed.

Please refer to Penal Code section 16840 and People v Clark for a general understanding of when a firearm is considered "loaded." Under the general understanding, the firearm that you describe is "unloaded." But also remember that this is California and nothing is that simple. There are a number of special circumstances where a weapon is considered as "loaded" if the ammunition and weapon are in the possession of the same person. The penalty for CCW is one of those special circumstances.

Under your fact setting:

1) If the weapon were registered to the defendant in AFS, and no other aggravating condition is present, then only a misdemeanor charge of CCW is present.

2) If the weapon were not registered to the defendant in AFS, then you get two different felonies:

a) The CCW charge now becomes a felony. The enhancement language of PC section 25400(a) uses the joint possession of weapon and ammunition terminology rather than the "loaded" terminology to define the enhancement.

b) Assuming the person "intended" to carry the weapon in that manner (kinda hard to argue otherwise), then the offense of "Armed Criminal Action (PC 25800)" is present. I suspect that a prosecutor would be reluctant to file this charge. These circumstances satisfy the elements of that offense, but are not the type of circumstances the offense was created to address. The offense of "Armed Criminal Action" requires the weapon to be loaded, but it specifically applies the "joint possession" definition of "loaded" rather than the common definition of "loaded."
Even with all of the above, the offense of Carrying a Loaded Weapon is not present. PC 25850 employs the general definition of "loaded" which is not met under your example.