With some exceptions, it is illegal to sell a firearm to a minor in California (PC 27505). The following information covers an overview of the law, the penalties, and the common defenses related to the illegal sale of a firearm to a minor in California. As stated, some sales of firearms, or handguns, to a minor can be a legal transaction under certain conditions (See below).
PC 27505 Laws
No person, corporation, or firm shall sell, loan, or transfer a firearm to a minor, nor sell a handgun to an individual under 21 years of age (PC 27505(a)).
Exceptions: PC 27505(b) Subdivision (a) does not apply to, or affect, the following circumstances:
The sale of a handgun, if the handgun is an antique firearm and the sale is to a person at least 18 years of age (PC 27505(b)(1)).
The transfer or loan of a firearm, other than a handgun, to a minor by the minor’s parent or legal guardian (PC 27505(b)(2)).
The transfer or loan of a firearm, other than a handgun, to a minor by a grandparent who is not the legal guardian of the minor, if the transfer is done with the express permission of the minor’s parent or legal guardian (PC 27505(b)(3)).
The loan of a firearm, other than a handgun, to a minor, with the express permission of the minor’s parent or legal guardian, if the loan does not exceed 30 days in duration and is for a lawful purpose (PC 27505(b)(4)).
PC 27505(b)(5): The loan of a handgun to a minor by the minor’s parent or legal guardian, if both of the following requirements are satisfied:
The minor is being loaned the firearm for the purposes of engaging in a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 27505(b)(5)(A).
The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm PC 27505(b)(5)(A).
PC 27505(b)(6): The loan of a handgun to a minor by a person who is not the minor’s parent or legal guardian, if all of the following requirements are satisfied:
The minor is accompanied by the minor’s parent or legal guardian when the loan is made, or the minor has the written consent of the minor’s parent or legal guardian, which is presented at the time of the loan, or earlier (PC 27505(b)(6)(A)).
The minor is being loaned the firearm for the purpose of engaging in a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 27505(b)(6)(B)).
The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm (PC 27505(b)(6)(C)).
The duration of the loan does not, in any event, exceed 10 days (PC 27505(c)(6)(D)).
Definitions: Section PC 27505 does not provide a definition for the various firearms described in that section. However, definitions of those terms are found in other sections of California law:
Firearm: “firearm” means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion (Defined at PC 16520(a)).
Handgun: A firearm designed for use by one hand, especially a pistol or revolver.
Antique Firearm: (1) Any firearm not designed or redesigned for using rimfire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898. This includes any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898 (PC 16170(1)); or, any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade (PC 16170(2)).
PC 27505 Penalties
The sale of a handgun to a minor may be charged either as a misdemeanor, or alternatively as a felony (wobbler). The sale of a firearm to a minor is charged either as a felony, or as a misdemeanor, but the crime is not charged alternatively either as a felony, or as a misdemeanor. The distinction is more than academic because when it comes to felony charges of sale of a handgun to a minor, those charges may be reduced to misdemeanor charges; however, felony charges of sale of a firearm to a minor may not be reduced to a misdemeanor, and conversely, misdemeanor charge of sale of a firearm to a minor may not be increased to felony charges, at least not without adding more facts to the charges.
Note: A handgun may also be considered a firearm under PC 27505, but for purposes of the related penalties, the sale of a handgun to a minor is treated differently than other types of firearms that might be sold to a minor, such as an assault rifle, shotgun, etc. (see jail sentences below).
Jail: Sale of a Handgun to a Minor: The sale of the handgun to a minor may be charged either as a misdemeanor, or alternatively as a felony (wobbler). When the crime of sale of a handgun to a minor is charged as a felony, the defendant could be sentenced to sixteen (16) months, two (2) years, or three (3) years in jail. When the crime of sale of a handgun to a minor is charged a misdemeanor, the defendant could face up to one (1) year in the county jail.
Note: The jail sentence that the judge orders after a PC 27505 conviction depends largely on the defendant’s criminal history, if any, the terms of a negotiated plea bargain between the district attorney and the defendant, if any, and the presence or absence of any mitigating or aggravating factors in the circumstances of the case.
Jail: Sale of a Firearm to a Minor: Unlike the sale of a handgun charge, if the defendant is accused of selling a firearm to a minor then she likely faces a felony charge. The related jail sentence for a felony conviction of sale of a firearm to a minor is either probation (see below), two (2) years, three (3) years, or five (5) years in jail. Whether or not the defendant is sentenced to either probation, two, three, or five years in jail depends largely on the defendant’s criminal history, if any, the terms of a negotiated plea bargain between the district attorney and the defendant, if any, and the presence or absence of any mitigating or aggravating factors in the circumstances of the case.
Note: There is a misdemeanor charge of sale of a firearm to a minor. The related sentence is up to one hundred eighty days in the county jail if the defendant is not granted probation (see probation below). Misdemeanor charges of selling a firearm to a minor are allowed only if the defendant did not a have a prior felony conviction, did not sell the firearm to a person that the defendant knows is prohibited from possessing a firearm, and the defendant did not sell the firearm to a known gang member.
Remember, the illegal sale of a firearm to a minor is charged either as a misdemeanor, or as a felony, but the classification of the crime does not "wobble" between a felony and a misdemeanor. This distinction is important for purposes of negotiating with the district attorney and for determining the possible penalties for any conviction.
Felony v. Misdemeanor Charges: Generally speaking, the sale of a firearm to a minor is charged as a felony where the defendant is alleged to have sold any type of firearm, including a handgun, to a minor, and when the defendant has either a prior felony conviction of PC 27505, sold the firearm to a known gang member, or sold the firearm to a person who the defendant knows is a convicted felon. If none of these factors is present, then the district attorney is more likely to file misdemeanor charges of PC 27505.
Probation Sentence: A probation sentence is a period of supervision, as opposed to an actual jail sentence. Probation sentences are allowed in PC 27505 cases, including felony cases of PC 27505. However, a probation sentence is not guaranteed. Whether or not the district attorney or the judge agrees to a probation sentence after a conviction for selling a handgun, or other firearm, to a minor depends mostly on the level of sophistication of the crime, the defendant’s criminal history, if any, the harm caused by the defendant’s crime, if any, and other factors.
A probation sentence for a felony conviction of PC 27505 is called formal probation and the supervision is handled by a probation officer. There are felony probation terms and conditions that must be followed by the defendant in order to remain on probation and out of jail. If the defendant fails to abide by the terms and conditions of probation, then she may be charged with a violation of probation charge and may ultimately be ordered to serve an actual jail sentence.
A probation sentence after a misdemeanor conviction of PC 27505 is referred to as misdemeanor probation, summary probation, information probation, or court probation. These terms are synonymous and basically mean that the court monitors the defendant’s probation (as opposed to a probation officer). In some misdemeanor cases, the judge may order the defendant to sere a felony probation sentence even though she was convicted of a misdemeanor crime. This is unusual, but nevertheless it is within the court's discretion.
Probation Terms: The terms, or conditions, of probation are different in every PC 27505 case, but generally speaking, the terms and conditions will include the following: Commit no crime (misdemeanor or felony), pay court fines, pay supervision fees (for felony cases), stay away from certain places or people (restraining orders), and more. Felony probation terms are usually harsher and more restrictive on the defendant’s freedom than misdemeanor probation terms. For example, a person on felony probation for PC 27505 may not usually leave the County where he or she resides without prior permission from a probation officer.
Work Release & House Arrest: Sometimes, a probation condition will include an actual jail sentence; however, when a court orders a jail sentence as a condition of probation, that jail sentence may usually, but not always, be served alternatively on work release or house arrest. Work release is a type of manual labor that requires the defendant to pick up trash, or some similar type of work, around jails, freeways, and parks. House arrest is an order for the defendant to not leave her home for a period of time. There are some exceptions to the 'not leave home' order for defendants who have verifiable work, school, and other family obligations. To learn more, visit Work Release / House Arrest.
PC 1170(h) Sentencing: The crime of selling a firearm to a minor is a crime covered under California’s recent Realignment Sentencing Law. Essentially, the new law, found at California Penal Code Section 1170(h), allows persons convicted of certain crimes, including PC 27505, to serve any incarceration in a local county jail, as opposed to a state prison.
PC 1170(h) sentencing also allows the judge to split or suspend the defendant’s jail sentence. To split a jail sentence means that the defendant will only serve a portion of her jail sentence in an actual jail. The remainder of her sentence may be served out of jail on work release (see Work Release above). A suspended jail sentence means the judge could actually hold off on sending the defendant to jail, so long as she remains free of new criminal charges and completes any probation-type conditions.
Conduct Credits: If the defendant is convicted of any PC 27505 charges, and thereafter, she is ordered to serve either an actual jail sentence, or a work release sentence, then that jail or work release sentence may be reduced by up to fifty percent (50%) if the defendant serves her time with good behavior. This is also known as day-for-day credit.
For example, if the defendant is sentence to two (2) years after a conviction for sale of a handgun to a minor, the defendant will only serve one (1) year in jail if she serves that year in jail with good behavior (no crimes or possession of contraband while in jail). Also, if the defendant is allowed to split that sentence, then the defendant will only serve a maximum of six (6) months of that two (2) year jail sentence in an actual jail (See PC 1170(h) Sentencing above).
Three Strikes Sentencing: Neither the sale of a handgun to a minor, nor the sale of a firearm to a minor is considered a serious or violent offense per California’s Three Strikes Sentencing Law. As such, a PC 27505 conviction is not considered strike offense. This means that the defendant could qualify for reduced incarceration time under California Prop 57 if the defendant is convicted of other non-strike offenses along with the PC 27505 offense (concurrent sentencing and early parole considerations).
CIMT: PC 27505 is likely a crime involving moral turpitude. Crimes involving moral turpitude carry negative consequences beyond jail and probation punishment. CIMT can have negative impact on a person’s immigration status, professional licensing status, military service status, credibility in subsequent court proceedings and more. For more information, see CIMT.
Other Punishment: In addition to any jail time that the defendant might face after a conviction for PC 27505, the defendant could face the following punishment: Collateral consequences for non-US citizens (deportation from the U.S., denial of reentry into the U.S., and/or denial of naturalization), professional licensing consequences for licensed professionals (i.e. therapist, nurses, teachers, doctors, lawyers, dentist, etc.), military service consequences (discharge, denial of entry, and military discipline), firearm prohibition, civil lawsuits, court fees and fines, subsequent probation or parole conditions and violations, and more.
PC 27505 Defenses
Every criminal charge of sale of a firearm to a minor is different; therefore, every defense will be different. With that said, some defenses naturally lend themselves to certain allegations. With PC 27505 crimes, these common defenses include: Statute of limitations (three years for felony PC 27505 and one year for misdemeanor PC 27505), alibi, mistake of fact, insufficient evidence, entrapment, illegal search and seizure, coerced confessions, and jury nullification. Most of these defenses are discussed in further detail at Common Defenses to Crime, but there are some defenses related to PC 27505 that deserve special attention:
Note: The actual law of PC 27505 provide defenses in the actual text (See PC 27505 Law above). Essentially, the law provides exceptions to the otherwise prohibition of selling a firearm to a minor. For example, Certain firearm transfers between family members is permitted under certain conditions. Therefore, if the district does not prove that the transfer of a firearm to a minor does not fall within one of the exceptions, the criminal charges should be dismissed. In other words, the burden of proving that one of the exceptions to PC 27505 does not exist is on the district attorney.
Statute of Limitations: The statute of limitations is a time limit, which is granted by law, to plaintiffs in civil cases and prosecuting agencies in criminal cases, that allows those persons and/or agencies to bring a cause action against a defendant. In a criminal case, if the district attorney does not bring a cause of action (criminal charges) against the defendant within that limited time frame, then the criminal charges must be dismissed and those criminal charges may not be refiled.
For the crime of sale of a handgun to a minor the statute of limitations is three (3) years. This is true even if the district attorney files misdemeanor PC 27505 charges against the defendant. The reason for this is that any criminal charge that may be filed either as a misdemeanor, or alternatively as a felony, such as the crime of sale of a handgun to a minor, the statute of limitations for the misdemeanor is the same as it is for the felony.
Serna Motions: When the district attorney unreasonably waits to file criminal charges, but the filing of those charges is still within the statute of limitations, the defendant may nevertheless have those charges dismissed if she is successful on a Serna Motion. A Serna motion is request to the judge to have the defendant’s criminal charges dismissed because the district attorney waited an unreasonably long time to file the charges and that unreasonable delay caused prejudice to the defendant. For more information, see Serna Motions.
Jury Nullification: Jury nullification is not a true defense in the sense that the defendant is found not guilty because a jury actually believes the defendant to be not guilt beyond a reasonable doubt. Rather, jury nullification refers to the idea that a jury has the power to nullify (render powerless) a criminal charge that the jury feels is unwarranted against the defendant, or where the jury considers the conduct of the defendant to be non-criminal despite the fact that the defendant's conduct is actually criminal.
For example, a juror may feel that the government has overreached in its power to control the rights of citizens to keep and bear arms. With this in mind, a juror could vote not guilty against the defendant’s criminal charges of PC 27505, even if the juror believes the defendant is actually guilty of the charged offense. Of course, a juror is supposed to base his or her decision on the law and not on his or her personal beliefs, but with gun crimes, there are many jurors who tend to vote, however wrongfully, with their personal beliefs, as opposed to according to the law. Jury nullification is also disproportionately more common in personal possession of drug crimes and prostitution charges for the same reason.
Reclassification of Crime: In some cases of sale of a handgun to a minor the defendant will initially be charged with a felony (PC27505(a)-F)), but the felony charges could have been charged as a misdemeanor (PC27505(a)-M)). When this happens, the defendant could request from the court that the felony charges be reduced to misdemeanor charges (PC 17b). The basis of this request would be that the interest of justice call for a reduction of the criminal charges. Essentially, the defendant’s attorney would demonstrate to the judge that misdemeanor charges are more appropriate than felony charges in the defendant’s particular case and circumstance. A reclassification is not a complete defense, but the reduction of felony charges to misdemeanor charges dramatically reduces the penalties that the defendant faces.
Post-Conviction Issues: After a conviction for a charge of sale of a firearm to a minor the defendant might consider post-conviction relief options, including, but not limited to, the following: Early termination of probation, early termination of parole, expungement, certificate of rehabilitation and/or governor’s pardon, restoration of firearm rights, and more.
Note: If the defendant was arrested for an alleged violation of PC 27505, but subsequently, the charges against the defendant were either dismissed, never prosecuted, or prosecuted but the defendant was found not guilty after a jury trial, then the defendant might ask the judge to seal and destroy her arrest record. For more information, see PC 851 Petitions.
To learn more about the crime of sale of a firearm to a minor (or handgun), or PC 27505, contact our criminal defense lawyers without delay. Our criminal defense lawyers are always available to discuss your case, you rights, and your defense options. There is no charges for initial, in-office, consultations and we can even provide consults to person in custody (West Valley Detention Center, and Central Detention Center). Call Today!
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