Possessing an Assault Weapon in California - Penal Code 30605 PC
While generally upholding the Second Amendment right to bear arms, the State of California has banned a long list of assault weapons because they have the capacity for mass casualties and are unnecessary to protect one's property.
Thus, under Penal Code 30605 PC, possessing an assault weapon is a crime in California, punishable in some instances by up to 3 years in prison if convicted of a felony. The meaning of the term “assault weapon” is often debated, and many gun owners assume their weapon is legal.
PC 30605 is a possessory crime, meaning you don't have to own an illegal firearm to be found guilty of violating this statute. Instead, possessing or controlling the unlawful assault weapon is sufficient for prosecution.
The prosecutor will need to prove the defendant had the assault weapon in a place under their dominion and had ready access to it. PC 30605 is a “wobbler” crime in California, which means the prosecutor can file the case as either a misdemeanor or felony.
One of the closely related crimes includes Penal Code 30600 PC, which defines the sale or manufacture of assault weapons and .50 BMG rifles.
Our Los Angeles criminal defense attorneys will review this topic further below.
What Constitutes Possession?
As noted, to be convicted of possession of an assault weapon, the prosecution must prove that the defendant knowingly and intentionally possessed (i.e., controlled) the weapon. Under California law, "possession" can be actual or constructive:
- Actual possessionmeans you have physical control of the weapon by carrying it, whether in a holster, a bag, etc.
- Constructive possession means you have access or rights to the weapon, meaning it's in your home, car, or somewhere else where you can get it.
Under this definition, the assault weapon doesn't have to be on your person for you to be convicted of unlawful possession. It just has to be within your sphere of access.
The prosecutor must prove all the crime elements listed under California criminal jury instructions 2560, possession of assault weapon or .50 BMG rifle.
Some of the crucial factors include proving you possessed, manufactured, distributed, transported, imported, offered, or exposed for sale, gave, or loaned an assault weapon or a .50 BMG rifle.
What Is Considered an Assault Weapon in California?
The state has a long list of criteria for what constitutes an assault weapon based on its characteristics. These are listed in Penal Code 30515 as several individually enumerated firearms from specific manufacturers or a firearm with certain features. The list includes:
- semiautomatic centerfire rifles with fixed magazines accepting more than ten rounds of ammunition;
- semiautomatic centerfire rifles without fixed magazines that have extra features or modifications;
- semiautomatic centerfire rifles that are less than 30 inches long;
- semiautomatic pistols, rifles, and shotguns.
The list of features on centerfire firearms may include (but are not limited to):
- Thumbhole stock;
- Telescoping or folding stock;
- Flash suppressor;
- Forward pistol grip;
- Grenade or flare launcher
In addition, California has compiled a list of specifically banned firearms found in Penal Code 30510 PC. It's not uncommon for someone charged with possession of an assault weapon that violated Penal Code 30605 because they didn't realize that an aftermarket modification rendered their rifle an assault weapon under California law.
Recent Developments in the Assault Weapons Ban
In June 2021, a federal judge struck down California's ban on assault weapons, claiming that it violates the right to bear arms under the Second Amendment. This might create some temporary confusion about whether it is still illegal to possess assault weapons.
However, the ban remains in effect while the state appeals the ruling, so if you carry an assault weapon during the interim period, you may still be charged with a crime under PC 30605.
What Are the Penalties for Penal Code 30605 PC?
As noted above, possession of an assault weapon is a "wobbler" offense in California, which may be charged as a misdemeanor or a felony.
If you're convicted of misdemeanor possession, you may be facing up to one year in jail and up to $1000 in fines. If convicted of felony possession of an assault weapon, the maximum jail time increases to 3 years.
In certain qualifying cases, the charge for possession of an assault weapon may be reduced to an infraction, resulting in only a $500 fine and no criminal record. This may happen only if ALL the following criteria are met:
- You can prove that you lawfully possessed the weapon before it was classified as an assault weapon;
- You have no prior convictions for possession of an assault weapon;
- You possessed the weapon within a year of the end of the one-year registration period according to Section 30900;
- You relinquished the weapon to the sheriff's department lawfully in accordance with Section 31100.
What Are the Similar Offenses?
- Possession of a Destructive Device or Explosive (Penal Code 10710 PC):e.g., grenades, bombs, rocket launchers, etc.
- Possession of Destructive Device Materials (Penal Code 10720 PC): possessing the materials required to make destructive devices with the intent of making them;
- Manufacture of an Assault Weapon (Penal Code 30605 PC): making, distributing, transporting, selling, giving, or lending weapons banned by California law;
- Shooting at an unoccupied vehicle or building as defined under Penal Code 247b PC.
How Can I Fight PC 30605 Charges?
You may be able to fight charges of illegal possession of an assault weapon or other firearm offenses by having the charges reduced. Depending on the circumstances of your case, an attorney may be able to argue any of the defenses below.
You were legally authorized to possess the assault weapon. If you hold a specific permit allowing you to have an assault weapon, you are exempt from prosecution under PC 30605.
You were the victim of illegal search and seizure. If law enforcement did not have probable cause for search and seizure, you might be able to get the charges dismissed.
You qualify to have the charge reduced to an infraction. If you can show you meet all the criteria listed above, you can reduce the charge to an infraction and avoid jail time and a criminal record.
Perhaps we can prove you were not aware you had an unlawful assault weapon. Maybe you temporarily held the weapon for someone and didn't know it violated Penal Code 30605 PC.
Through prefiling intervention, it may be possible to persuade the prosecuting agency to drop or reduce charges before the first court date. Eisner Gorin LLP is a Los Angeles-based criminal defense law firm, and you can reach out to us for an initial consultation by calling (877) 781-1570 or filling out our contact form.