In California, it is illegal to manufacture or possess a zip gun (PC 33600 (Abbrev.) & PC 16590(z)).

 

A zip gun is a non-registered makeshift firearm, which is generally a crude and homemade small caliber handgun. Zip guns are commonly made by combining improvised and adapted firearm parts that are stripped from other existing firearms. In California law, a zip gun is defined as any weapon or device that meets all of the following:

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• It was not imported as a firearm by a licensed firearm importer (PC 17360(a) Abbrev.).

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• It was not originally designed to be a firearm by a licensed firearm manufacturer (PC 17360(b) Abbrev.).

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• No tax was paid on the weapon (zip gun) and there is no exemption from paying tax on the weapon (PC 17360(c) Abbrev.).

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• It is made or altered to expel a projectile, usually a bullet, by the force of an explosion or other form of combustion (PC 17360(d) Italics added).

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Possession Defined: Possession of a zip gun means the defendant had actual or constructive possession of the zip gun. Actual possession means the defendant had the zip gun on her person, knows she has the zip gun on her person, and she had direct physical control over the zip gun. Constructive possession means the defendant had the zip gun within her control, either directly or through another person, but not necessarily within her immediate control.

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For example, the defendant has actual possession of a zip gun if she has the zip gun hidden in the bra she is wearing. The defendant has constructive possession of a zip gun if she keeps the zip gun in her personal safety deposit box at her bank, but she is not presently at the bank.

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Exceptions: It is not illegal to possess a zip gun under certain circumstances, including:

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• When the zip gun would qualify as an antique firearm.An antique firearm is a firearm manufactured before 1898 and not designed, or redesigned for using rimfire or conventional center fire ignition with fixed ammunition (i.e. matchlock, flintlock, etc.), or any firearm manufactured by 1898, for which ammunition is no longer manufactured (PC 16170 Abbrev.).

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• When the zig gun was bequeathed to the defendant, so long as the defendant does not actually possess the zip gun and she retains title of the firearm for no more than a year (PC 17705 Abbrev.).

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• When the zip gun is possessed by a government agency, a historical society, or a public museum, and the zip gun is properly house, secured from unauthorized handling, and the zip gun is unloaded (PC 17715 Abbrev.).

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• When possession of the zip gun is for the purpose of making a motion picture, television show, or video production, and only if the handling of the zip gun is by authorized participants during the production of the video production (PC 17720 Abbrev.).

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• When possession of the zip gun is by law enforcement, or law enforcement agents charged with disposal of the zip gun, and the possession is handled in the course of that law enforcement duty (PC 17730 Abbrev.).

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• When possession of the zip gun is only for the purpose of transporting it to law enforcement for disposition according to law. The person in possession of the zip gun must give advanced notice that the delivery of the zip gun will be made to law enforcement and the zip gun must be kept in a locked container during delivery (PC 17740 & PC 17750 Abbrev.).

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Note: These noted exceptions to PC 33600 are abbreviated for the sake of brevity; the exception(s) could be broader, or narrower than what is listed here. For a more precise definition of PC 33600 law, and the exceptions to that law, contact a criminal defense lawyer without delay.

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Also, any exception to PC 33600 does not nullify a person’s firearm prohibition as it relates to a different law.

 

For example, if the defendant is a convicted felon in possession of a firearm (zip gun), then none of the exceptions to PC 33600 listed above will serve as a defense to her possession of that firearm.

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PC 33600 Penalties

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A zip gun crime may be charged as either a felony, or alternatively as a misdemeanor. Whether or not the district attorney charges a defendant with a misdemeanor or a felony in any particular PC 33600 case depends on several factors, including the level of sophistication of the zip gun, the defendant’s prior criminal history (if any), the terms of any negotiated plea bargain, and the presence or absence of any other mitigating or aggravated factors associated with the facts of the case.

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Felony Jail Sentence: When zip gun possession is charged as a felony the defendant may face up to sixteen (16) months, two (2) years, or (3) years in jail.

The length of jail sentence after a felony conviction of PC 33600 depends on several factors, including the defendant’s criminal history, and the terms of any negotiated plea bargain between the district attorney and the defendant.

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Note: It is possible for a defendant to be convicted of a felony PC 33600 and not face an actual jail sentence. This occurs where the defendant is either placed on probation without a jail sentence (see Probation Sentence below), or where the defendant is sentenced to a suspended jail sentence under PC 1170(h) sentencing (see PC 1170(h) Sentencing below).

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Misdemeanor Jail Sentence: When zip gun possession is charged as a misdemeanor, the defendant may face up to one (1) year in jail. The exact length of jail in a misdemeanor PC 33600 case depends on many factors, including the terms of any plea bargain between the district attorney and the defendant, the defendant’s criminal history, and more.

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Note: Similar to felony zip gun charges, It is possible to receive a no-jail sentence after a misdemeanor conviction for PC 33600 (see Probation Sentence below).

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Probation Sentence: A probation sentence is a period of supervision (as opposed to a jail sentence). Probation sentences are allowed in both felony and misdemeanor cases of PC 33600. Whether or not the defendant receives a probation sentence after any conviction depends on factors similar to the factors that decide whether or not the defendant is charged with either a felony, or with a misdemeanor (See above).

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Terms of Probation: A probation sentence is conditioned upon the defendant fulfilling terms of probation. The terms of probation vary depending on whether or not the defendant is placed on probation after a felony conviction of PC 33600 (formal probation), or after a misdemeanor conviction of PC 33600 (informal or summary probation).

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In general, the probation terms for both felony and misdemeanor convictions of PC 33600 include, but are not limited to, the following: pay court fines and fees, possess no firearm or ammunition, commit no crime (misdemeanor or felony), and more. Also, felony probation terms are monitored by a probation officer and the terms tend to be more restrictive on the defendant’s freedom. Misdemeanor probation terms are monitored by the court.

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Note: A probation sentence is allowed in possession of a zip gun case, but a probation sentence is not guaranteed. Every case is different and whether or not the defendant will be granted a probation sentence after a conviction of PC 33600 depends on many factors.

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Also, if the defendant does not follow the terms of probation then the defendant may be criminally prosecuted for violation of probation (VOP). This VOP is in addition to any new criminal charges that the defendant might be facing which caused the VOP in the first place.

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PC 1170(h): Per California penal code 1170(h), a defendant convicted of a felony zip gun crime may serve her jail sentence in a local county jail, as opposed to a state prison. This is true even in cases where the defendant is sentenced to more than a year in jail. Under PC 1170(h), jail sentences related to felony PC 33600 are called county prison sentences.

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Also, per penal code 1170(h), the judge may sentence the defendant to serve only half of her jail sentence in actual custody, while the other half is served out of jail and on work release. This is known as a split sentence per penal code 1170(h).

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Finally, in PC 33600 cases where the judge determines it would be in the best interest of justice, the defendant might have her jail sentence suspended. A suspended sentence means the defendant does not have to serve any time in jail so long as she complies with the terms of her out-of-custody release.

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Note: PC 1170(h) sentencing does not apply to misdemeanor jail sentences related to zip gun crimes; however, with most misdemeanor PC 33600 convictions, the defendant is placed on a no jail probation sentence anyway. If the defendant is sentenced to jail in any misdemeanor PC 33600 case, the jail sentence is no longer than a year and the defendant may have that sentence reduced for good behavior while in jail (see Credit for Time Served below).

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Credit for Time Served: Whether the defendant is convicted of a felony or a misdemeanor in PC 33600 cases, any jail sentence ordered as part of that conviction may be reduced by up to fifty percent (50%) if the defendant serves her jail sentence with good behavior. Good behavior is determined by jail authorities, but in general, good behavior means that the defendant neither commits no new criminal offense while she is in jail, nor violates any jail rule. Fifty percent (50%) credit for time served on good behavior also applies to work release sentences. For more information, see Work Release.

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Note: PC 1170(h) split sentences and credit for time served may apply to reduce a jail sentence considerably in zip gun possession cases.

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For example, if the defendant is sentenced to sixteen months in jail after a conviction for PC 33600, then that jail sentence may be split in half to eight (8) months in jail, and that eight (8) months in jail may be further cut in half to four (4) months for credit for time served (on good behavior). In essence, the sixteen (16) month jail sentence becomes only four (4) months in actual jail.

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Prop 57 Application: A conviction for a felony zip gun possession violation is not considered a violent crime. As a non-violent crime, felony PC 33600 qualifies for the benefits of Prop 57 sentencing. Prop 57 sentencing is covered in more detail at Prop 57, but in short, Prop 57 sentencing means that the defendant may be released early on parole after she serves the full sentence for her primary crime (crime that carries the longest jail sentence). This is true even if the defendant is convicted of multiple crimes along with the PC 33600 violation, so long as any other crime charged against the defendant is also a non-violent crime.

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For example, if the defendant is convicted of three (3) counts of possession of a zip gun, which are non-violent crimes under Prop 57, then the defendant may qualify for parole after serving the full sentence of only one conviction, as opposed to serving the full sentence for all three convictions.

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Also, PC 33600 is not considered a strike offense under California’s Three Strikes Law. This means that PC 33600 is neither a violent offense per PC 667.5 (different than violent offenses listed under Prop 57), nor a serious offense per 1192.7. This distinction is important because a conviction for any violent and/or serious offense leads to enhanced punishment upon subsequent criminal conviction(s).

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CIMT: Possessing a zip gun is not a crime involving moral turpitude. A crime involving moral turpitude is a crime that involves deceit or immorality. This distinction is important for collateral consequences of any PC 33600 conviction, including immigration consequences.

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Note: just because PC 33600 is not a CIMT does not mean that a conviction of this crime will not lead to immigration consequences for the defendant. This is especially true in cases where the defendant has a criminal conviction(s) prior to any PC 33600 conviction, or where the defendant is sentenced to more than a year in any felony PC 33600 case. For more information, see CIMT and immigration consequences for criminal convictions.

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Bail: Bail is an amount of money or property that is deposited with the court and which is intended to serve as assurance that the defendant will appear in court if she is released from jail before the conclusion of the defendant's case. The bail amount in felony cases of zip gun possession is twenty-five thousand ($25,000 [2021 San Bernardino County]). This amount may be increased, reduced, or even waived (not required) depending on many factors particular to the defendant’s case and her personal circumstances. For more information, see Bail.

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Weapon Confiscation: Zip guns are considered a nuisance under PC 18010. This means that the district attorney, or the attorney general, may file for an injunction against the defendant in order to stop the defendant from continuing the nuisance (i.e. zip gun sales, possession, manufacture, etc.) (PC 18010 Abbrev.).

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Additional Punishment: In addition to the penalties listed above, if the defendant is convicted of possession of a zip gun, she could face any of the following additional penalties: military consequences for criminal convictions, professional licensing consequences for criminal convictions (i.e. doctors, dentists, lawyers, teachers, nurses, etc.), court fines and fees, restitution, criminal protective orders, harsh probation terms, parole violations (if defendant was on parole at the time of her new criminal charges), civil lawsuits, firearm prohibition (loss of the right to own or possess a firearm), and more.

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PC 33600 Defenses

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Common defense to PC 33600 violations include, but are not limited to, the following:

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Statute of Limitations: The statute of limitations is an expiration period. Essentially, the district attorney only has a limited amount of time in which he may bring criminal charges against the defendant for the defendant’s alleged criminal conduct. If the district attorney does not file criminal charges against the defendant within that allotted time period then he is forever barred (stopped) from prosecuting the defendant for that particular conduct.

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The statute of limitations in possession of a zip gun cases is three (3) years from the date of the defendant’s last possession. This three year statute of limitations applies to PC 33600 charges regardless of whether or not the defendant is charged with a misdemeanor or a felony violation of PC 33600.

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Note: Most, but not all, misdemeanor crimes have a one (1) year statute of limitations; however, when a crime may be charged either as a misdemeanor, or alternatively as a felony, such as a PC 33600 violation, then the statute of limitations for the misdemeanor offense is the same length of time as the statute of limitations related to the crime’s felony counterpart. Other limitations to this defense are found at Statute of Limitations.

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Necessity: The defense of necessity applies to PC 33600 cases where the defendant takes possession of the zip gun only for a period of time necessary to make the zip gun safe for other persons.

 

For example, if the defendant sees a zip gun on a playground and she takes possession of that zip gun so that no child may accidentally discover it, then the defendant might have a valid defense of necessity against a PC 33600 allegation. This is true so long as the defendant takes possession for no longer than is necessary under the circumstance.

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Mistake of Fact: The mistake of fact defense applies where a person operates under a mistaken belief about a particular circumstance, but if the defendant were not mistaken about the particular circumstance, then her conduct would not be illegal.

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For example, in a PC 33600 case, if the defendant takes possession of a zip gun because she does not realize that the object she took possession of was actually a firearm (i.e. defendant thought the zip gun was a toy or did not know it was a firearm), then she might have a valid mistake of fact defense.

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Note: The mistake of fact defense is more commonly used when the zip gun is modified in such a way that it barely resembles a firearm. Also, mistake of fact defense applies so long as the defendant continues to operate under a mistaken belief. Once the defendant understands she operated under a mistaken belief, then she must relinquish the zip gun if she can safely do so and in accordance with California law (see above for proper disposal of zip guns).

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Self-Defense: Self-defense is a privilege to use force against another person in some circumstances. Basically, a person has a privilege to defend herself when she is faced with an imminent and unjustified use of force against her. The force used can be no more than that which is reasonably necessary as it relates to the perceived threat. In a possession of a zip gun case, the defendant might have a valid defense of self-defense if she possesses the zip gun for the purpose of defending herself against an immediate threat of severe bodily harm or death.

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For example, if the defendant grabs a zip gun from an assailant as the defendant is being robbed with that same zip gun, then the fact that the defendant possessed the zip gun after she took it from the robber is probably a privileged act. This is because the defendant took possession of the zip gun only to protect herself from its harm.

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Note: The privilege of self-defense is only valid if the force used by the defendant against another person is reasonable under the circumstance (i.e. no deadly force may be used to repel non-deadly force). Also, self-defense privilege ends when the threat of harm against the defendant is no longer imminent. To learn more, see Self Defense.

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Other common defenses in possession of zip gun cases include: illegal search and seizure, coerced confessions, insanity, defense of others, incapacity to commit a crime due to the age of the defendant, unreasonable delay in prosecution that leads to prejudice against the defendant (Serna Motion), and more.

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Post-conviction Remedies: Post-conviction remedies in zip gun possession cases include, but are not limited to, the following: certificate of rehabilitation, expunge the criminal conviction, appeal the criminal conviction, restore firearm rights, and more.

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Note: If the defendant was arrested for PC 33600, but she was never prosecuted for some reason, or she was prosecuted but not convicted (acquitted), then she might be eligible to seal and destroy her arrest record. See Seal and Destroy Arrest Record for more information.

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If you or loved one is charged with possession of a zip gun, or PC 33600, contact our team of criminal defense lawyers for a free consultation. Our attorneys will patiently explain your rights, defenses, and possible options to secure the best possible outcome. In some cases, we can draft pre-litigation defense letters in an attempt to avoid the filing of criminal charges in the first place. We serve all Inland Empire courts and jails, including West Valley Jail. Call today!

 

909-913-3138

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