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Thread: PC 26350 (b) (1) misdemeanor.

  1. #1
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    PC 26350 (b) (1) misdemeanor.

    Hello All,

    PC 26350 (b) (1) states:

    "(b) (1) Except as specified in paragraph (2), a violation of this section is a misdemeanor."

    PC 26350 (b) (2) states:

    "(2) A violation of subparagraph (A) of paragraph (1) of
    subdivision (a) is punishable by imprisonment in a county jail not exceeding one year, or by a
    fine not to exceed one thousand dollars($1,000), or by both that fine and imprisonment, if both of the following conditions exist:
    A) The handgun and unexpended ammunition capable of being discharged from that handgun are in the immediate possession of that person.
    (B) The person is not in lawful possession of that handgun."

    I am a little confused by these portions of PC 26350. Why was the legislature specific about the misdemeanor punishment for having ammo on your person when it is a misdemeanor already?

    Does a person who openly carries a handgun in a public place or street in an incorporated city or city and county get charged with a double misdemeanor, if he/she has matching ammo and the gun is not registered to him/her?

    Why did the legislature specify the punishment for subdivison (b) paragraph (2) and not subdivision (b) paragraph (1)?

    What is the punishment for a misdemeanor crime if the punishment is not written-out in the Penal Code section (as in 26350 (b) (1)?

    26350 (b) (2) does not state that it is a misdemeanor or felony crime; however, the punishment is in line with a misdemeanor. Is PC 26350 (b) (2) a misdemeanor or a felony?

    I hope I am writing this post well enough for people to understand my questions.

    markm
    IANAL (I know, it is obvious!)

    Last edited by MarkBofRAdvocate; 10-16-2011 at 12:42 AM. Reason: typo

  2. #2
    Regular Member Gundude's Avatar
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    "(2) A violation of subparagraph (A) of paragraph (1) of

    subdivision (a) is punishable by imprisonment in a county jail not exceeding one year, or by a

    fine not to exceed one thousand dollars($1,000), or by both that fine and imprisonment, if both of the following conditions exist:
    A) The handgun and unexpended ammunition capable of being discharged from that handgun are in the immediate possession of that person.
    (B) The person is not in lawful possession of that handgun

    Sounds like you shouldn't possess a stolen handgun with ammo for it.
    If both exist is the key.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    Quote Originally Posted by Gundude View Post
    "(2) A violation of subparagraph (A) of paragraph (1) of

    subdivision (a) is punishable by imprisonment in a county jail not exceeding one year, or by a

    fine not to exceed one thousand dollars($1,000), or by both that fine and imprisonment, if both of the following conditions exist:
    A) The handgun and unexpended ammunition capable of being discharged from that handgun are in the immediate possession of that person.
    (B) The person is not in lawful possession of that handgun

    Sounds like you shouldn't possess a stolen handgun with ammo for it.
    If both exist is the key.
    Sounds like a "wobbler" type thing... jail time OR a fine if caught UOC'ing....but if you happen to not be authorized to have said firearm you would then be both jailed AND fined...correct?? Seems like carrying someone else's gun without permission makes you more guilty of the same crime? haha
    Last edited by camsoup; 10-16-2011 at 01:37 AM.

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    Quote Originally Posted by Gundude View Post
    "(2) A violation of subparagraph (A) of paragraph (1) of

    subdivision (a) is punishable by imprisonment in a county jail not exceeding one year, or by a

    fine not to exceed one thousand dollars($1,000), or by both that fine and imprisonment, if both of the following conditions exist:
    A) The handgun and unexpended ammunition capable of being discharged from that handgun are in the immediate possession of that person.
    (B) The person is not in lawful possession of that handgun

    Sounds like you shouldn't possess a stolen handgun with ammo for it.
    If both exist is the key.
    Hey Gundude,

    Yeah, I got that part.

    Here is a question that I really need help with: What is the punishment for violating Section 26350 (a) (1) (2) and as partially described at (b) (1)?

    Is the punishment $100.00 and a day in jail?

    Or, probation for a week and the charge expunged from your record after 4 weeks?

    Does the judge create his own sentencing guidelines? You know, a Brown appointee finds you guilty of a capital offense and sends you to death row? To most lefties, possession of a gun in public should be a capital offense.

    I am confused, HELP ME GUNDUDE!

    markm

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    Quote Originally Posted by camsoup View Post
    Sounds like a "wobbler" type thing... jail time OR a fine if caught UOC'ing....but if you happen to not be authorized to have said firearm you would then be both jailed AND fined...correct?? Seems like carrying someone else's gun without permission makes you more guilty of the same crime? haha
    Hey camsoup,

    So, as a wobbler, a person could be sentenced to two years in jail and $2,000 in fines if caught OCing with matching ammo while carrying one of his pre-registration guns (If the person can't prove he bought the gun before 1994, I am sure a big city lefty prosecutor would charge 26350 (b) (2)).

    I think I agree with your opinion.

    markm

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    Regular Member Gundude's Avatar
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    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey Gundude,

    Yeah, I got that part.

    Here is a question that I really need help with: What is the punishment for violating Section 26350 (a) (1) (2) and as partially described at (b) (1)?

    Is the punishment $100.00 and a day in jail?

    Or, probation for a week and the charge expunged from your record after 4 weeks?

    Does the judge create his own sentencing guidelines? You know, a Brown appointee finds you guilty of a capital offense and sends you to death row? To most lefties, possession of a gun in public should be a capital offense.

    I am confused, HELP ME GUNDUDE!

    markm
    Thats a tough one.
    Wait, I have it. Steal a gun and buy some ammo for it and get arrested. Report back the first chance you get.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey camsoup,

    So, as a wobbler, a person could be sentenced to two years in jail and $2,000 in fines if caught OCing with matching ammo while carrying one of his pre-registration guns (If the person can't prove he bought the gun before 1994, I am sure a big city lefty prosecutor would charge 26350 (b) (2)).

    I think I agree with your opinion.

    markm

    I don't think its a 2 year and 2,000 thing....

    I think it simply says you would be jailed AND fined.... instead of just jailed OR fined.

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    Quote Originally Posted by camsoup View Post
    I don't think its a 2 year and 2,000 thing....

    I think it simply says you would be jailed AND fined.... instead of just jailed OR fined.
    Hey Camsoup,

    I reread 26350 (b) (2), and it is an "or," not an "and."

    If you are found guilty of 26350 (a) and (b) (2), the judge may sentence you to 2 years in jail and a $2,000 fine. There are two punishable offenses, right?

    markm

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    Quote Originally Posted by Gundude View Post
    Thats a tough one.
    Wait, I have it. Steal a gun and buy some ammo for it and get arrested. Report back the first chance you get.
    Hey Gundude,

    I have a pre-registraion gun (purchased way before 1994). How do I prove that I legally own it?

    markm

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    Regular Member Gundude's Avatar
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    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey Gundude,

    I have a pre-registraion gun (purchased way before 1994). How do I prove that I legally own it?

    markm
    All of my firearms were purchased before 1994. They was a record of the sale, but I doubt they are in the system now.
    I don't think you have to prove anything. The prosecutor would have to prove you don't own them.
    You might have trouble getting them back, if they were confiscated.
    I keep photos, model and serial #'s of all my firearms.

    Is this a test?
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    the guns NOT being in the system as stolen would be a good start.

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    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey Gundude,

    I have a pre-registraion gun (purchased way before 1994). How do I prove that I legally own it?

    markm
    See, California Evidence Code regarding ownership presumption.

    Evidence Code 637
    , which states: "Things which a person possesses are presumed to be owned by them." They take the firearm(s) from you, therefore they were possessed by you and are presumed owned by you. They are required to give you a property receipt when they seize your firearms. If they do, that is all you need. If they do not, they violated the law. Either way, the presumption is that you own the property.

    Further, see Evidence Code section 638, which states: "a person who exercises acts of ownership over property is presumed to be the owner of it." Your previous possession and your seeking the return of the property are both acts of exercising ownership, and again, the presumption is that you own the firearm(s).

    -Brandon
    Brandon Combs
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    Member, CRPA Board of Directors

    Join me in making regular monthly tax-deductible donations to the Calguns Foundation and help us advance gun rights in California today!

    Unless explicitly stated otherwise, all comments are my own and not the approved position of any organization, nor should they be considered legal advice.

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    good find Brandon,

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    Regular Member Gundude's Avatar
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    Quote Originally Posted by wildhawker View Post
    See, California Evidence Code regarding ownership presumption.

    Evidence Code 637
    , which states: "Things which a person possesses are presumed to be owned by them." They take the firearm(s) from you, therefore they were possessed by you and are presumed owned by you. They are required to give you a property receipt when they seize your firearms. If they do, that is all you need. If they do not, they violated the law. Either way, the presumption is that you own the property.

    Further, see Evidence Code section 638, which states: "a person who exercises acts of ownership over property is presumed to be the owner of it." Your previous possession and your seeking the return of the property are both acts of exercising ownership, and again, the presumption is that you own the firearm(s).

    -Brandon
    Did you swallow a 100 terrabyte harddrive?
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

  15. #15
    Regular Member wildhawker's Avatar
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    No, but I've had to answer that question numerous times for e.g. the Hotline; I suppose it's becoming familiar territory.

    -Brandon

    Quote Originally Posted by Gundude View Post
    Did you swallow a 100 terrabyte harddrive?
    Brandon Combs
    Secretary, Calguns Foundation
    Member, CRPA Board of Directors

    Join me in making regular monthly tax-deductible donations to the Calguns Foundation and help us advance gun rights in California today!

    Unless explicitly stated otherwise, all comments are my own and not the approved position of any organization, nor should they be considered legal advice.

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    Quote Originally Posted by Gundude View Post
    All of my firearms were purchased before 1994. They was a record of the sale, but I doubt they are in the system now.
    I don't think you have to prove anything. The prosecutor would have to prove you don't own them.
    You might have trouble getting them back, if they were confiscated.
    I keep photos, model and serial #'s of all my firearms.

    Is this a test?
    Hey Gundude,

    No, this is not a test!

    I respect your opinion. Period, end of story.

    And, you are from Sandy Eggo, GO CHARGERS!

    markm
    Last edited by MarkBofRAdvocate; 10-17-2011 at 07:48 AM. Reason: Chargers

  17. #17
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    Quote Originally Posted by wildhawker View Post
    See, California Evidence Code regarding ownership presumption.

    Evidence Code 637
    , which states: "Things which a person possesses are presumed to be owned by them." They take the firearm(s) from you, therefore they were possessed by you and are presumed owned by you. They are required to give you a property receipt when they seize your firearms. If they do, that is all you need. If they do not, they violated the law. Either way, the presumption is that you own the property.

    Further, see Evidence Code section 638, which states: "a person who exercises acts of ownership over property is presumed to be the owner of it." Your previous possession and your seeking the return of the property are both acts of exercising ownership, and again, the presumption is that you own the firearm(s).

    -Brandon
    Thanks Brandon,

    markm

  18. #18
    Regular Member wildhawker's Avatar
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    Quote Originally Posted by MarkBofRAdvocate View Post
    And, you are from Sandy Eggo, GO CHARGERS!

    markm
    GO BOLTS!

    -Brandon
    Brandon Combs
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    Join me in making regular monthly tax-deductible donations to the Calguns Foundation and help us advance gun rights in California today!

    Unless explicitly stated otherwise, all comments are my own and not the approved position of any organization, nor should they be considered legal advice.

  19. #19
    Regular Member Lawful Aim's Avatar
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    Presumptions, that's a good topic. Everyone is presumed to be subject to the statutes. A key to being left alone or beating a charge is to properly rebut the presumptions.

    A rebuttable presumption is one that can be disproved by evidence to the contrary. The Federal Rules of Evidence and most state rules are concerned only with rebuttable presumptions, not conclusive presumptions.
    http://legal-dictionary.thefreedicti...om/presumption
    The world is a dangerous place. Not because of the people who are evil; but because of the people who don't do anything about it. -Albert Einstein
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