Charges Filed in First Test of Firearm Negligence Law : Weapons: Boy, 4, fatally shot himself after finding gun in clothing. Grandfather could face up to three years in prison.

In the first test of a new state law, charges were filed Friday against a San Jose man whose 4-year-old grandson fatally shot himself with a handgun authorities said was carelessly left in an accessible place by the grandfather.

Carion Nicholas Conchas, 47, was charged under the Children’s Firearm Accident Prevention Act, which took effect New Year’s Day, just 10 hours before the boy’s death.

The new law makes “criminal storage of a firearm” punishable by a maximum of three years in prison and a fine of up to $10,000. Prosecution is permitted when a gun owner or user “knows or reasonably should have known” a child is likely to gain access to the weapon and death or injury results.

Santa Clara County Assistant Dist. Atty. David N. Davies, announcing the charges at a news conference, conceded that use of the law could add more anguish to families already suffering the tragic loss of a child through a firearms accident.

“But the purpose of the statute is to prevent what happened here,” Davies said. “If it’s not enforced, it won’t have an opportunity to save innocent children’s lives . . . I hope it will be a message.”

Conchas, given until Wednesday to surrender to authorities, could not be reached. A person who answered the telephone at the Conchas home said no family members were available to comment.

Conchas’ attorney, Daniel V. Hernandez of San Jose, said he was still discussing the case with Conchas and declined to say how he would defend his client or whether he would challenge the law. “We have to see what the facts are first,” the attorney said.

The new law, sponsored by Assemblyman Lloyd Connelly (D-Sacramento), is among the first in the nation to permit prosecution when a negligently stored gun is obtained by a child who then injures or kills himself or others. Only three other states--Connecticut, Florida and Iowa--had previously enacted such legislation.

The statute, however, does bar prosecution in a number of situations, including when the child makes an illegal entry to obtain the gun, when the firearm is kept in a locked container or in another secure location, when the firearm itself is equipped with a locking device, when the child uses the weapon in self-defense or when the keeper of the weapon had “no reasonable expectation” a child would be on the premises.

The law also provides that if violators of the law are the child’s parents or guardians, prosecutors shall consider the impact of the injury or death on them in deciding whether to bring charges.

The Legislature’s intent is to prosecute only parents and guardians who “behave in a grossly negligent manner,” the law states.

Conchas was charged in the death of Jesus Valencia, his grandson, who fatally shot himself in the chest with a .22-caliber pistol, apparently after finding it in his grandfather’s clothing while staying at his grandparents’ home.

The child was rushed to San Jose Medical Center at 10 a.m. New Year’s Day, then pronounced dead 30 minutes later after attempts to revive him failed.

Police said Conchas apparently left the gun in a sweater pocket after firing the weapon New Year’s Eve. Family members were quoted by police as saying the boy had received two toy guns for Christmas and may have mistaken the real firearm for a toy.

Prosecutor Davies declined to discuss details of the case but said investigators, in examining all of the evidence, had concluded that Conchas had not used “reasonable care” in storing the pistol.

“Time will tell whether this law is going to be effective,” the prosecutor said. “In the end, it’s going to be up to juries to determine that after they’ve looked at all the facts.”