Gun Silencer Law in California
- Author Criminal Defense Lawyer
- Published October 6, 2020
- Word count 1,539
In California, it is illegal for any person, or entity, who is not exempt by law, to possess a firearm silencer (PC 33410). A firearm silencer means any device or attachment of any kind designed, used, or intended for use in silencing, diminishing, or muffling the report [sound] of a firearm. The term “silencer” also includes any combination of parts, designed or redesigned, and intended for use in assembling a silencer or fabricating a silencer and any part intended only for use in assembly or fabrication of a silencer (PC 17210).
In essence, it is illegal to by in possession of a device that is intended to be used as a silencer for a firearm. This does not mean that any device that reduces the sound of a firearm should be considered a silencer under PC 33410. For example, firing a gun into a pillow, where the pillow is pressed up against the nozzle of the firearm, will silence the sound of the gun, but that does not mean that a pillow is considered a “silencer.” Moreover, a suppressor may or may not be considered a silencer under PC 33410 depending on whether or not the suppressor is designed to suppress sound in addition to muzzle flash. The fact that a suppressor incidentally suppresses the sound of a firearm, by itself, does not necessarily qualify as a silencer under PC 33410.
Remember, it is a crime to possess a firearm silencer even when the device used to silence the firearm does not actually silence the firearm. The fact that the device is intended to reduce or silent the noise of a firearm is sufficient under PC 33410. In fact, there is no gun silencer that completely silences a firearm with respect to the discharge of the firearm; some silencers might be able to cancel the noise of other aspects of the firearm, such as the discharge of a spent cartridge, the gun’s recoil, etc.
Note: A corporation can be guilty of knowingly possessing a firearm. For example, if a security company knowingly allows its security agents to carry silencers on their respective firearms, and that security company is not exempt from the prohibition under PC 33410, then the company, and its owners, can be held criminally liable.
PC 33410 Penalties
In California, the crime of possessing a firearm silencer is classified as a wobbler. This means that PC 33410 may be charged either as a misdemeanor, or alternatively as a felony. Whether or not the district attorney charges a misdemeanor in lieu of a felony, or vice versa, depends largely on the facts of the case, the defendant’s criminal history, the terms of any plea bargain, and more. In some cases, a felony charge of PC 33410 may be reduced to a misdemeanor over the objection of the district attorney. This usually occurs, if at all after the court hearing called the preliminary hearing.
Misdemeanor: A criminal charge of misdemeanor possession of a firearm silencer carries a maximum jail term of up to one (1) year. Probation in lieu of an actual jail sentence may be available (See Probation Below). Misdemeanor PC 33410 charges are usually listed as PC33410-M in criminal pleadings.
Felony: A criminal charge of felony possession of a firearm silencer carries a maximum jail sentence of up to three (3) years in jail. This means that if the defendant is found guilty, and an plea agreement is not reached between the district attorney and the defendant, then the judge has sentencing options of either probation (with or without jail), two (2) years in jail, or a maximum of three (3) years in jail. Whether the judge chooses a probation sentence, the minimum jail sentence, the medium jail sentence, or the maximum jail sentence, depends largely on the facts of the case and the defendant’s criminal history. Felony PC 33410 charges are usually listed as PC33410-F in criminal pleadings.
Good Conduct Credits: Any jail sentence (or work release sentence) that is imposed after a conviction for possession of a firearm silencer is entitled to be reduced by up to fifty percent (50%) when the defendant serves his or her sentence with good behavior (PC 4019). For example, if the defendant is ordered to serve two (2) years of jail after a PC 33410 conviction, then that sentence will be reduced by one (1) year if the defendant serves his or her jail sentence with good behavior. This good conduct credit applies to all jail and work release sentences related to PC 33410, including split sentences served pursuant to PC 1170(H) [See below].
Probation Sentence: A probation sentence is period of supervision instead of jail. Sometimes, a term of probation will include a short jail sentence; however, jail sentences that are ordered as a term of probation are usually served on work release or house arrest (electronic monitoring). Probation sentences are allowed in both misdemeanor and felony PC 33410 charges, but they are not guaranteed. Whether or not a defendant will receive a probation sentence after a conviction for possession of a firearm silencer depends largely on the facts of the case, the terms of any plea agreement, the defendant’s criminal history, and more. Felony PC 33410 probation is formal, which means that the defendant’s probation terms will be supervised by a probation officer. Misdemeanor PC 33410 probation is informal, or summary, which means that the defendant’s probation terms will be supervised by the court.
PC 1170(h) Sentencing: In felony PC 33410 cases, the defendant, if convicted, might be eligible for a jail sentence that is split or suspended. A split sentence is a jail sentence that is served partially in jail and partially out of jail on work release. A suspended sentence is a jail sentence that is not served unless the defendant violates a term of his or her probation. In addition, any incarceration, if ordered, in possession of a firearm silencer case, is served in a local county jail, as opposed to a state prison (PC 1170(h)).
CIMT: The crime of possessing a firearm silencer is not likely to be considered a crime involving moral turpitude (CIMT) as the crime involves possession only. A crime involving moral turpitude is a crime that is considered inherently wrong, immoral, or deceitful. Criminal convictions of CIMT can carry harsher negative consequences as it relates to the defendant’s immigration, military, or professional licensing status.
California Three Strikes Law: Possession of a firearm silencer is not considered a serious offense or a violent offense as those terms are defined in the penal code under sections PC 1192.7 and 667.5, respectively. This means that PC 33410 is not considered a strike offense under California’s Three Strikes Sentencing Law.
Bail: Bail is a term used to define a process whereby the defendant stakes an amount of money or property with the court, usually through a bail agent, that is intended to serve as a surety that the defendant will appear in court as ordered if he or she is otherwise allowed to remain out of jail during the court process. In PC 33410 cases, the bail amount is $5,000 for misdemeanor charges and $25,000 for felony charges. This amount may be reduced or increased by a judge at the defendant’s initial court hearing (arraignment) depending on several factors, including the defendant’s perceived danger to the community, the defendant perceived risk of flight, and more. In some cases, the defendant may be released from jail without the need for bail while he or she fights his or her criminal charges; this is known as a release on the defendant’s own recognizance, or OR release.
In addition to the penalties listed above, if the defendant is found guilty, or pleads no contest, of possession of a firearm silencer, he or she could face any of the following penalties: denial of military enlistment, criminal protective orders (CPO), fines, court fees, restitution to victims, if any, loss of the right to own or possess firearms or ammunition, loss of immigration status, loss of professional licensing status (doctor, dentist, therapist, teacher, lawyer, counselor, etc.), and more.
PC 33410 Defenses
Common defenses to a criminal charge of possessing firearm silencer include: lack of knowledge of possession, temporary and necessary possession for safeguarding the firearm, lack of constructive or actual possession, statute of limitations (one year for misdemeanor and three years for felony PC 33410), coerced confessions, violation of the defendant’s Miranda Rights or other Search and Seizure issues, necessity, insanity, entrapment, alibi, self-defense, defense of others, mistake of fact, and more.
Note: Sometimes the defendant has actual possession of an object, but he or she is not aware of the nature of the object. A silencer is not difference. In order to prove that the defendant is in possession of a firearm silencer the district attorney will need to prove that the defendant knew the nature of the object that he or she possessed. Also, fleeting possession, such as when a person hands another person an object for only a moment, could be a defense to PC 33410 allegations.
Exemptions: PC 33410 has specifically carved out exemptions that allows for some military personnel and suppliers to legally possess firearm silencers. These exemptions apply to agencies listed in PC 830.1, which include some military and law enforcement agencies, their silencer manufacturers, dealers, supplies, and couriers. To learn more, see Https://calcriminaldefenselawyers.com
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