Possession of an Illegal or Deadly Weapon

Legal defense against weapons charges requires an aggressive, detail-oriented approach. Attorney Richard M. Oberto has experience not only in cases involving allegations of firearms and ammunition, but also in cases involving knives, swords, and similar types of instruments.

Illegal Weapons

California law defines a number of weapons and related items as nuisances and makes their possession unlawful. The weapons and related defined as nuisances tend to be capable of concealment or tend not to be immediately recognizable as weapons. California law also defines a number of weapons as nuisances when carried in a concealed manner and defines the concealed carrying as unlawful.

The following weapons and related items are defined as nuisances under California law and makes their possession unlawful: (1) handgrenades; (2) certain knives and swords that have disguised or misleading appearances as defined in Penal Code sections 201310 through 20990; (3) ballistic knives; (4) metal knuckles; (5) nunchaku; (6) saps and similar weapons; (7) certain types of guns, firearms, and firearms containers that have disguised, misleading, or undetectable appearances; (8) certain firearm detection equipment as defined in Penal Code section 24610 through 24690; (9) unconventional pistols as defined in Penal Code sections 31500 through 31590; (10) multiburst trigger activators; (11) short-barreled rifles and shotguns; (12) zip guns; and (13) switchblade knives. Unlawful possession of the foregoing items can be charged as a felony, except in the case of a switchblade knife which punishable only as a misdemeanor.

Certain weapons are defined as nuisances when an individual carries them substantially concealed on his person. Those weapons include the following: (1) dirks and daggers as defined in Penal Code section 16470, (2) explosive devices as defined in Health and Safety Code section 12000, and (3) firearms as defined Penal Code section 25400. A dirk or dagger is defined as a fixed blade instrument. It may include a folding knife where the blade is exposed and locked into position.

Possession of an otherwise lawful weapon may become unlawful if a person possesses the weapon with the intent to commit an assault. Penal Code section 17500 makes it a misdemeanor to possess a deadly weapon with the intent to assault another person.

Elements of Possession

Knowledge and control are core elements of proof in the prosecution in weapons possession cases. A person who did not know a weapon was present or did not have control over it cannot be found guilty of a possession offense. Likewise, a person who did not know that an item could be used as a weapon and did not know its characteristics as a weapon cannot be held criminally liable for possession.

Punishments

Many of the offenses for illegal or deadly weapons are “wobblers,” which means they can be charged as felonies or misdemeanors. As felonies, the offenses are punishable by imprisonment for 16 months or two or three years or by up to one year in the county jail. A person who has been convicted may be eligible for probation and a suspended sentence. A misdemeanor conviction generally carries a maximum term of one year in jail, but in some cases may carry a maximum term of six months.

Possession of a Firearm by a Prohibited Person

The California Penal Code deems it a felony for a “prohibited person” to possess, own, purchase, or receive an otherwise legal firearm. A “prohibited person” includes those (1) who have certain types criminal or juvenile records, (2) who are subject to court-ordered restrictions on firearms, and (3) who meet the criteria for narcotic drug addiction under Penal Code section 29800. A person who has questions or concerns about whether he might be prohibited from possessing firearms should contact an attorney.

Momentary Possession, Justificable Possession, and Lawful Defense

A person who is otherwise prohibited from possessing firearms may be entitled in certain circumstances to possess a firearm temporarily. Temporary possession might be valid under the legal doctrines of Momentary Possession, Justifiable Possession, and Self-Defense or Defense of Others. A person should discuss these important legal doctrines with an attorney if they might be at issue.

Skilled Legal Representation

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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