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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
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Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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Once we got to court on the day specified, the calendar did

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Once we got to court on the day specified, the calendar did not list our case. After asking the clerk and her not knowing, she asked the DA's office. They replied they were not filing charges at this time and they would let us know. How long is that? Can we get our guns back? Can they hold this over our heads forever or shouldn't they either file or drop it?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Jim Reilly replied 1 year ago.
HelloCustomerand welcome back to JustAnswer.

When the DA's office chooses not to file the case is referred to as a "No Complaint". That does not mean that the case is completely finished, however, as they can choose to file any time up until the expiration of the statute of limitations.

If you let me know what kind of offenses are involved, I can tell you what the statute of limitations is for each.

Unfortunately, there is no way to force the DA's office to act and they can hold it open while making a decision. I had a DUI case not long ago in Merced county that was filed more than 6 months after the initial arrest.

Thanks again for asking your question here on JustAnswer.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

the citation referenced "concealed or concealable weapon" 25400 (a) (1).


 


3 weapons were confiscated after sheriff was told they were in the truck. (Reason for weapons in the truck was because my friend was serving eviction papers to a person with a history of threats and violence) 1 handgun was unloaded however, ammo in the truck cab with the gun. 2 handguns in a un-locked case, clips in the gun but none in the chamber.
No receipt was issued for the handguns confiscated by Sheriff. My friends are residents of Nevada and were in California when cited.


 

Expert:  Jim Reilly replied 1 year ago.

Penal Code section 25400, subdivision (a)(1), covers carrying a concealed or concealable weapon in a vehicle. Potential punishment for this violation is as stated in subdivision (c) -- if none of the special provisions of (c)(1) through (c)(6) apply, then (c)(7) makes this violation a misdemeanor punishable by a maximum of one year in the county jail.

 

The applicable code sections are:

 

25400. (a) A person is guilty of carrying a concealed firearm when the person does any of the following:

(1) Carries concealed within any vehicle that is under the person' s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.

...

(c) Carrying a concealed firearm in violation of this section is punishable as follows:

 

(1) If the person previously has been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580, as a felony.

(2) If the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.

(3) If the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.

(4) If the person is not in lawful possession of the firearm or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.

(5) If the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

(6) If both of the following conditions are met, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment: (A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person. (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.

(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

 

If the offense is a misdemeanor, the statute of limitations is one year (Penal Code section 802, subdivision (a)).

If any of the provisions which make the offense a felony apply (subdivisions (c)(1) through (c)(6)), then the statute of limitations is three years (Penal Code section 801).

The police will not return these guns until two things happen:

1) A filing decision is made by the DA's office. If the charges are filed, the guns will not be returned until the case is concluded, and maybe not even then depending on the result of the case. If charges are not filed, then:

2) A determination is made whether or not the guns were lawfully owned. If so, they would be returned. If not, they will not be returned and will likely be destroyed.

If you have any other questions about this situation, please let me know.

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CA Atty since 1976, primarily criminal law. 150+ jury trials.