Unlicensed / Illegal Sale of Firearms: California Penal Code 26500 PC
Suppose you have a gun that you want to sell. Can you sell it through an internet advertisement or at a garage sale? The answer lies inside California’s complex laws surrounding the use, possession, and sale of firearms. California law prohibits the sale, lease, or transfer of firearms without a valid license to do so. However, the California Penal Code has some exemptions and loopholes that can make the question of whether a person is legally entitled to sell or transfer a gun much more complicated.
The Language of California Penal Code 26500
Under this section of the California Penal Code, “No person shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2.” 1 Section 26700 of the California Penal Code controls the issuing of a license, and California Penal Code Section 26800 sets the conditions under which that license can be forfeited.
Yet, despite this clear definition of the law under California Penal Code 26500, there are a number of exemptions that allow a person to sell, lease, or transfer firearms without a license. For example, here are some (but not all) of the situations where a person would be exempt from the need for a California-issued license:
- Transfer of possession to a gunsmith for the purpose of repairing the gun; 2
- Persons acting under court orders to sell to satisfy a court judgment; 3
- Disposing of an inherited weapon within 60 days of its receipt; 4
- Loaning unloaded firearms for use as props in filmed entertainment productions; 5
- Sale of an unloaded antique weapon to a licensed collector; 6 or
- An “infrequent” transfer or sale of a firearm. 7
This last exemption requires a definition for the term “infrequent,” because it varies depending upon the type of weapon sold or transferred. According to the definition under California Penal Code 16730, if the gun in question is a handgun, the term means less than six handgun transactions per year. 8 If the firearms are anything other than handguns, then the term means “occasional and without regularity.9 Furthermore, this law also applies to sales and transfers that occur at gun shows or trade events, which are legal, provided they meet certain other conditions. 10
In all cases involving these exemptions, an unlicensed individual may arrange the transaction. However, before the transaction is completed, California law requires that a licensed individual act as a broker for the transaction. Only then will the sale, lease, or transfer be legal under California Penal Code 26500.
The Prosecution’s Case for the Unlicensed Sale, Lease, or Transfer of a Firearm
In order for you to be convicted of California Penal Code 26500, the prosecutor must prove that you:
- Sold, leased, or otherwise transferred title to a firearm to another person;
- Knew that you were selling, leasing, or otherwise transferring a handgun; AND
- At that time, you did not have a valid license to sell, lease, or otherwise transfer title to a firearm.
Punishment for Illegal Sale of a Firearms
A violation of California Penal Code 26500 is a misdemeanor, and each gun sold could constitute a separate charge. If convicted, you face one or both of following penalties for each count:
- A maximum of six months in county jail; or
- A maximum fine of $1,000.
Defenses to Charges of a California Penal Code 26500 Violation
You had a valid permit to sell the weapon. If you have a valid permit under California Penal Code section 26700, you can legally sell, lease or transfer firearms. However, the burden is on you to provide proof that you have the license to do so.
You qualify for exemption. As discussed above, there are a number of exemptions to the law prohibiting the unlicensed or illegal sale of firearms. A skilled attorney will be able to prove to the court that you qualify for an exemption to the law.
For example, suppose you are holding an estate sale. You inherited several items from a relative who died last month that you do not have a need to keep, and you want to clear up space for those items you wish to keep. While searching through your relative’s effects, you discover an antique pistol that is not loaded. You decide to sell it to a collector. Were the police to attempt to arrest you for making an unlicensed sale, you would be able to use at least two exemptions for this sale. You are selling an unloaded antique to a licensed collector, and you are disposing of a weapon that you acquired through inheritance within 60 days of receiving it.
You were entrapped. Like any other criminal offense, violations of California Penal Code 26500 are subject to the defense of entrapment. This means that you had no intention of committing the crime until you were convinced to do so by a member of law emforcement.
Frequently Asked Questions Regarding California Penal Code 26500
1. If I get a license, can I sell any gun I want?
No. A license to sell a firearm only permits you to sell a specific type of weapon. For example, most licenses will allow you to sell generic weapons, such as pistols or revolvers. You would need a separate permit to sell more “dangerous” weapons, such as large capacity machine guns or assault rifles.
2. If I have a felony on my record, can I obtain a license to sell firearms?
No. If you have been convicted of a felony, or if you were convicted of a specified misdemeanor such as brandishing a weapon, or if you are a “narcotic drug addict” according to California Penal Code 29800, you are not eligible to obtain a license to sell, lease, or transfer firearms.
3. Is it legal to sell pellet or BB guns without a license?
Yes. California Penal Code 16520 specifies that BB and pellet guns are not firearms. The difference is that these weapons fire projectiles using air or gas pressure, or through spring action. For a weapon to be a firearm, the law requires that it launch projectiles through the use of an explosive or combustion propellant. Thus, it would be legal to sell a BB gun without a license.
Contact the Attorneys at Wallin & Klarich If You Have Been Charged with Unlicensed or Illegal Sale of Firearms
Are you facing a charge for selling a firearm without a license? If so, you should consult with an experienced and aggressive attorney who understands California’s intricate firearms laws. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending those facing weapons charges. We can help you, too. Contact us today for a free, no obligation phone consultation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California’s gun laws near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
1. [Cal. Pen. Code § 26500(a). ]↩
2. [Cal. Pen. Code § 26587.]↩
3. [Cal. Pen. Code § 26505.]↩
4. [Cal. Pen. Code § 26515.]↩
5. [Cal. Pen. Code § 26580.]↩
6. [Cal. Pen. Code § 26585.]↩
7. [Cal. Pen. Code § 26520]↩
8. [See Cal. Pen. Code § 16530(a). ]↩
9. [Cal. Pen. Code § 16730.]↩
10. [See Cal. Pen. Code § 26525.]↩