Penal Code § 26500 PC – Unlicensed Sale of Firearms in California

California Penal Code § 26500 PC states that “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.” Doing so is a misdemeanor punishable by up to 6 months of jail and a fine of up to $1,000 for each illegally transferred firearm.

In this article, our California criminal defense attorneys discuss the following:

• 1. Is it illegal to sell unlicensed firearms in California?
  • 1.1. Legal definition of “firearm”
  • 1.2. Who may legally own or possess a gun in California?
  • 1.3. People and transactions exempt from 26500 PC
  • 1.4. Requirement that ALL gun sales be completed through a licensed dealer
• 2. How do I get a license to sell firearms?
• 3. What are the penalties?
• 4. How do I fight the charges?

1. Is it illegal to sell unlicensed firearms in California?

California Penal Code 26500(a) PC states that no person shall

• sell,
• lease, or
• transfer firearms without a license to do so.

(There are exceptions for transferring firearms between family members). Even then, the transfer must be for the type of firearm authorized under the permit. ^{1 2 3}

1.1. Legal definition of “firearm”

Under California law, a gun or firearm is:

1. any device,
2. designed to be used as a weapon,
3. from which is expelled through a barrel,
4. a projectile,
5. by the force of any explosion or other forms of combustion.”⁴

Examples of “firearm” – often generically referred to as “gun” – include (but are not limited to):

• pistols,
• revolvers,
• handguns,
• rifles (including short-barreled rifles),
• shotguns (including short-barreled shotguns), AND
• the frame or receiver of any of the above.⁵

Also included in the definition of “firearms” are:

• rockets,
• rocket-propelled projectile launchers, and
• similar devices containing an explosive or incendiary material.⁶

Such devices are illegal even if they are designed for emergency or distress signaling purposes.⁷

However, the following do not count as firearms for purposes of Penal Code 26500:

• pellet guns,
• BB guns, AND
• unloaded “antique” firearms.⁸

1.2. Who may legally own or possess a gun in California?

The following people are generally prohibited from acquiring or possessing a gun in California:

1. felons (that is, anyone convicted of any felony offense in any jurisdiction),⁹
2. persons who are addicted to narcotics,¹⁰
3. persons with two (2) or more convictions under Penal Code 417, California’s law against brandishing a weapon,¹¹
4. persons convicted of certain misdemeanor offenses,¹²
5. persons who suffer from mental illness,¹³ and
6. minors (that is, anyone under 18); people under 21 may not purchase firearms.¹⁴

If you are prohibited from owning a gun, you are also prohibited from owning ammunition.¹⁵

Anyone else may possess a firearm or ammunition¹⁶ (other than armor-piercing ammunition¹⁷). The only requirement is that in order to purchase a handgun, you must possess a valid handgun safety certificate.¹⁸

1.3. People and transactions exempt

Certain people, transactions, and firearms are exempt from prosecution under PC 26500.  These include (but are not limited to):

• People acting under the operation of law or court order;¹⁹
• Law enforcement officers;²⁰
• People disposing of guns they’ve inherited;²¹
• The infrequent transfer of personal firearms, including at gun shows;²²
• Transfers to and from federally authorized firearms importers, dealers and manufacturers;²³
• The temporary loan of firearms at target facilities;²⁴
• Use of unloaded firearms used as props in movies, television shows and other entertainment productions;²⁵
• Delivery of unloaded curios or relics to licensed collectors of antique firearms;²⁶ and
• Loan of a firearm to a gunsmith for repair.²⁷

Note, however, that even these exceptions have exceptions.  This is why it’s critical that anyone charged with a firearm or weapon offense contact a criminal defense attorney.

A good California criminal defense attorney will be familiar with California gun laws and all of their nuances.

1.4. The requirement that ALL gun sales be completed through a licensed dealer

Some states allow individuals to sell firearms

• out of their homes,
• in newspaper ads,
• online, and even
• at garage sales.

These unlicensed individuals are exempt from conducting background checks on their buyers.  Thus they can sell guns to people otherwise banned from possessing or owning firearms.

California, however, requires that all transactions involving firearms (even those between private parties) must be completed through a licensed dealer.

Even the exceptions listed above, such as lawful “infrequent” transactions between unlicensed individuals, must ultimately be brokered through licensed dealers.²⁸

Unlicensed individuals can arrange for the sale, lease, or transfer of firearms.  But a licensed dealer must be involved to complete the transaction.

2. How do I get a license to sell firearms?

In order to obtain a California license to sell firearms (and therefore avoid prosecution under Penal Code 26500) you must obtain and maintain all of the following:

1. a valid federal firearms license;
2. any regulatory or business license or licenses required by your local government;
3. a valid seller’s permit issued by the State Board of Equalization;
4. a certificate of eligibility issued by the Department of Justice “DOJ” (NOTE: you are ineligible to receive a license if you are banned from owning, possessing, purchasing, or receiving firearms under Penal Code 29800 PC, California’s felon with a firearm law);
5. a local one-year license issued by the authorized licensing authority in one of the following forms:
   • a. in the form prescribed by the California Attorney General,
   • b. in a regulatory or business license that clearly states “Valid for retail sales of firearms” and is endorsed by the appropriate licensing agency, or
   • c. in a letter by the appropriate licensing agency that states that the jurisdiction does not require a license to sell firearms and/or does not restrict or regulate firearms sales;²⁹
6. a listing on the DOJ’s centralized list of firearms dealers.³⁰

A license to sell firearms doesn’t give you the right to sell all firearms.  It means that you are licensed to sell the legal firearms specified on the permit.

Most firearm licenses are for “generic” firearms.  There are separate licensing requirements for dangerous weapons³¹ such as:

• short-barreled rifles and short-barreled shotguns,³²
• large capacity machine guns — Penal Code section 32315 PC,³³
• machine guns – Penal Code 32700 PC,³⁴
• destructive devices such as hand grenades – Penal Code 18900, AND³⁵
• assault weapons and rifles – Penal Code 31005 PC.³⁶

And even if you have a license, you violate the law if you sell illegal firearms.  Illegal firearms include (but are not limited to):

• guns classified under California’s assault weapons laws, including .50 BMG rifles (unless you have a permit for such weapons specifically³⁷), and
• “generally prohibited weapons.”³⁸

On June 4, 2021, a federal judge overturned California’s ban on assault weapons on the grounds that it violates the constitutional right to bear arms under the Second Amendment. But assault weapons remain illegal in California while the state appeals the ruling.

“Generally prohibited weapons” include such items as

• hidden knives,
• nunchakus, and
• metal knuckles.

Also included are unconventional guns and firearm accessories, including short-barreled shotguns and rifles.³⁹

If you violate one of the above laws, prosecutors could prosecute you and revoke your firearms license.

Similarly, if you fail to maintain any licensing requirements, the state will revoke your California license to sell firearms.  And if you sell, lease, or transfer firearms without a license, you face prosecution under Penal Code 26500.

Another way that you can forfeit your license is by failing to conduct a legitimate background check before selling firearms to an individual.  If you don’t conduct a check — or you sell, lease, or transfer a firearm to someone who fails that check — the state could revoke your California license to sell firearms.

And if you continue to engage in transactions that involve selling, leasing, or transferring firearms after your license has been revoked, you subject yourself to prosecution.

3. What are the penalties?

The unlicensed sale of a firearm in California is a misdemeanor.⁴⁰

If convicted, you face:

1. Up to six (6) months in county jail, and/or
2. A fine of up to $1,000.⁴¹

Such punishment is for each firearm you sell without a valid permit.⁴²

4. How do I fight the charges?

Fortunately, there are a number of legal defenses to charges under California Penal Code 26500.

Often the police aren’t as knowledgeable as they believe they are.  You may fall under one of the exceptions to this law — an exception the cops simply didn’t recognize.

Or perhaps you were entrapped into selling a gun to an undercover cop.  If you are an unlicensed dealer and only sold the weapon to the undercover decoy because he/she threatened you or coerced you into doing so, entrapment serves as a valid legal defense.⁴³

Other types of police misconduct could also absolve you of criminal culpability under PC 26500.⁴⁴

Examples: Examples of police misconduct include (but are not limited to):

• the police coerced your confession;
• an officer lied in his report;
• a cop falsely testified about the facts of your case; or
• your civil rights were violated in any other way.

California firearms offenses are no different than any other crime.  As Oakland criminal defense attorney Jim Hammer explains:

“If your attorney has mastered the applicable laws and conducted a thorough investigation of the facts, he or she will know the most effective California legal defenses to present on your behalf.”

Online Resource:

Department of Justice Bureau of Firearms.   Provided by the California Attorney General, this website contains information on the manufacture, sales, ownership, safety training, and transfer of firearms.

Legal References: