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California Penal Code § (Section) 29800 – Felon In Possession Of A Firearm

California Penal Code § (Section) 29800 – Felon In Possession Of A Firearm

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Penal Code §29800 is actually an “umbrella” law making it illegal for persons convicted of various crimes to own, possess, receive,  purchase, or have custody of, or control over, a firearm. Section 29800 applies to convicted felons, people convicted of certain specified Misdemeanor crimes, and anyone addicted to a narcotic drug.

Section 29800 is one of a number of statutes that prohibit firearm ownership. While this page is focused on §29800, it addresses several associated Code sections. (See “Penalties” section for related offenses.)

Who Is Not Allowed To Own A Firearm Under California PC §29800 (Felon In Possession Of A Firearm)?

Note: Some crimes result in both state and federal (concurrent) firearms bans. California law will prohibit you from owning, possessing, purchasing, receiving, or having custody of, or control over, a firearm if you have a federal conviction and are fleeing from justice, or if you're under indictment for a federal crime that could result in more than a year in prison, or if you commit Domestic Violence, or if you're addicted to illegal narcotics. In these cases a federal conviction will cause you to lose your firearms rights under California state law. 

California Penal Code §29800 applies to three specific groups: a) Felons; b) People convicted of certain Misdemeanors; and, c) Narcotic drug addicts.

  • Felons

Section 29800 applies to anyone convicted of a Felony under the law of any state, any county, or any government. However, the law also applies to federal Felony convictions, so long as: the federal crime you were convicted of committing would also be a Felony under California law; OR, you were sentenced to more than thirty days in a federal correctional facility, or fined more than $1,000; OR, you received both.

Example: Defendant Damian, convicted of vandalizing government lands (which would be a Misdemeanor under state law), is sentenced to fourteen days in a federal facility and fined $1,000. Damian is not a “Felon” for purposes of CPC §29800.

  • People Convicted Of Certain Misdemeanors

Misdemeanor convictions prohibiting firearms ownership fall into three broad categories: Lifetime firearms bans; Ten-Year Bans; and bans involving Juveniles Prosecuted As Adults.

Lifetime Bans: Section 29800 applies to several Misdemeanor forms of crime, including Assault With A Deadly Weapon (CPC §245(a)), Shooting At Inhabited House Or Occupied Motor Vehicle (CPC §246), and Brandishing A Weapon To A Peace Officer (CPC §417(c)). The prohibition also applies to anyone convicted at least twice of Brandishing A Firearm under CPC §417(a)(2) or to state and federal[1] Domestic Violence convictions. These convictions will result in a lifetime ban on firearms ownership or possession.

Ten-Year Bans: There are dozens of other Misdemeanor crimes which will prevent you from owning, possessing, receiving, purchasing, or having custody of, or control over, a firearm for ten years. Among these are well-known crimes like:

              Sexual Battery (CPC §243.4);

              Criminal Threats (CPC §422);

              Inflicting Corporal Injury On A Spouse Or Significant Other (CPC §273.5);

              Stalking (CPC §649.6);

              Assault (CPC §240);

              Assaulting A Police Officer (CPC §241); and,

              Battery (CPC §242).

However, the range of crimes to which a decade-long firearms ban applies also includes such lesser-known offenses as:

              Assault With A Stun Gun Or Taser Weapon (CPC §244.5);

              Possessing A Deadly Weapon With Intent To Commit Assault (CPC §17500); and,

              Supplying, Selling or Giving Firearms To A Person For Participation In A Criminal Street Gang (CPC §186.28).

The Penal Code actually lists more than forty Misdemeanors to which a ten-year firearms ban applies. For an exhaustive list, see here.   

Juveniles Prosecuted As Adults: While all adults can be prohibited from owning firearms under §29800, the statute can also apply to a minor convicted under CPC §23515,[2] or of any Felony count, when a juvenile court certifies him or her for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code.[3] If, under those circumstances, a minor is convicted of a Felony or Assault With A Deadly Weapon, Discharging A Firearm At A Dwelling, or Brandishing A Weapon To A Peace Officer, the minor is prohibited from firearms possession under CPC §29800 for his or her lifetime as though he or she were an adult.

Example:  Defendant Deena is convicted of the Misdemeanor form of shooting at a car on New Year's Eve. Since she violated CPC §246, Deena cannot own or possess a firearm for her lifetime.

  • Narcotic Drug Addicts

You're prohibited from owning, possessing, purchasing or receiving a firearm if you're addicted to any narcotic. California law recognizes “three characteristics of the addiction process: (1) ‘emotional dependence' on the drug, (2) an increased ‘tolerance' to its effects, and (3) ‘physical dependence' manifested by withdrawal symptoms upon sudden termination of drug intake.”[4] If it is determined that these characteristics apply to you, you will be prohibited from firearms.

Example: Doctor examines Defendant Derek after he's arrested for illegal OxyContin possession. Doctor later testifies that Derek is a narcotics addict. Derek will thus be prohibited from firearms ownership, possession, purchase, receipt, or having custody of, or control over, a gun.

Defining “Felon In Possession Of A Firearm” Under California Penal Code §29800

To convict you under CPC §29800, the prosecution must prove the following beyond a reasonable doubt:

  • Own, Possess, Purchase or Receive: You own, possess,[5] purchased, received, or have custody of, or control over, a firearm, or you had a firearm under your custody or control; AND,
  • Firearm: You had involvement with a weapon that qualifies as a firearm[6] under California law; AND,
  • Committed/Wanted For/Offense Prohibiting Firearms: You committed, or are wanted for, one of the offenses prohibiting firearms ownership, possession, purchase, receipt, or having custody of, or control over, a firearm;[7] AND,
  • Knowledge: You knew[8] that you owned, possessed, purchased, or received a firearm, or had a firearm under your custody or control.

Note:  The fact that you were previously convicted of a crime can only be used in fulfilling an element of §29800 or for some limited purpose like assessing your credibility – and not for any other reason.[9] 

Example: Defendant Darrell, who has a shotgun in the back of his truck, is convicted of felonious Grand Theft but doesn't think that he “possesses” a firearm when he's pulled over and the shotgun is found because he wasn't aware of the weapon's presence. Since Darrell had control over the weapon, and the right to access the back of his truck, Darrell actually does “possess” a weapon and has violated the law.

Penalties For Felon In Possession Of A Firearm

Note: As there are several sections creating penalties for illegal firearms possession, this section briefly describes several such sections and describes the penalties for violating each law.

  1. CPC §29800(a)(1) – Felon In Possession Of A Firearm:[10] If you knowingly possess, purchase, receive, own, or have custody of, or control over, a firearm and are banned from doing so because you committed a Felony, or you have a Felony warrant for your arrest, or a conviction under CPC §§23515(a), (c), or (d), or you're addicted to a narcotic, the penalty for conviction[11] under CPC §29800 may be:
  • A term of up to three (3) years in a state prison;[12] OR,
  • A fine of up to $10,000; OR,
  • Both imprisonment and a fine.[13]

              Example: Defendant Dora, who has a Felony warrant for her arrest, is apprehended while driving       a car that Neighbor's Son gave her permission to drive. But Neighbor's Son neglected to mention     that he keeps a small-caliber pistol inside a pouch hidden underneath the passenger's seat. Dora   is pulled over for a minor traffic offense and arrested.  Police search the car, find the pistol, and       add a charge of Felon In Possession Of A Firearm. Should she be convicted under §29800(a)(1)?

              Conclusion: Since Dora has a Felony warrant outstanding, CPC §29800(a)(1) prohibits her from               owning, possessing, buying, purchasing, or having custody of, or control over, firearms. Driving       Neighbor's Son's car with a firearm near her grasp could easily be construed as “possession” of      a firearm. However, Dora had to know that she was in possession of a firearm, a fact denied to           her owing to Neighbor's Son's sheer forgetfulness. Dora, therefore, should be acquitted of Felon    In Possession Of A Firearm (§29800(a)(1)) even though she's wanted for committing a Felony.     

              More information can be found in the Criminal Charges section of the Kann California Defense   Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a       lawyer. That's guaranteed.

  1. CPC §29800(a)(2) – Felon In Possession Of A Firearm:[14] If you're convicted at least twice of Brandishing A Firearm in violation of CPC §417(a)(2) and you own, possess, purchase, receive, or have custody of, or control over, a firearm, the conviction penalty[15] under §29800(a)(2) may be:
  • A term of up to three (3) years in a state prison;[16] OR,
  • A fine of up to $10,000; OR,
  • Both imprisonment and a fine.[17]

Example: Defendant Donice has a conviction for Brandishing A Firearm (CPC §417(a)(2)) on her record. She's arrested for a minor traffic violation. Donice has a .44 caliber pistol in her glove compartment at the time. Donice admits that she knew the weapon was present and tells Police Officer about her previous conviction. Police Officer decides to charge Donice with Felon In Possession Of A Firearm under CPC §29800(a)(2). Should Donice be convicted of the charge?  

Conclusion: Donice was in possession of a firearm, since the facts don't indicate that she was driving someone else's vehicle; thus the firearm in the glove compartment, we can assume, was also her weapon.  Donice also admitted that she knew she was in possession of the pistol. However, Donice had only one conviction for Brandishing A Firearm (§417(a)(2)) on her record - and §29800(a)(2) requires a minimum of two convictions to apply to anyone. Donice, it follows, should be acquitted of the crime because she doesn't fulfill the key precondition of the subpart.

More information can be found in the Criminal Charges section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer. That's always guaranteed.

 

  1. CPC §29800(b) – Felon In Possession Of A Firearm:[18] If you're a juvenile who's been tried as adult in an adult court and convicted of a violation of Section 23515 (subparts (a)(1), (a)(2), or (b)), or if you've been convicted of any Felony, conviction[19] under CPC §29800(b) may result in:
  • A term of up to (3) years in a state prison;[20] OR,
  • A fine of up to $10,000; OR,
  • Both imprisonment and a fine.[21]

Example: Defendant Diego was convicted of a Felony count of Grand Theft at the age of fifteen and served time in a juvenile corrections facility. He's released at seventeen. Diego is rearrested a matter of months later, this time for Public Intoxication, which results in the discovery of a .22 caliber pistol on his person. Diego is charged with an additional count of Felon In Possession Of A Firearm in violation of CPC §29800(b) as a result. Should Diego be convicted of the accusation?

              Conclusion: Diego was convicted of a Felony as a minor (fifteen years of age). He was a minor in   possession of a firearm when he was arrested. He also knew he had a pistol on his person, we can reasonably presume, since the facts suggest nothing to the contrary. These are elements of       CPC §29800(b). However, the facts also don't state that Diego was tried as an adult in an adult court; in fact, given that Diego served time in a juvenile corrections facility, it's logical to assume the opposite. Therefore, since an element of the charge can't be proven in court, Diego should     not be convicted of violating CPC §29800(b).[22]

              More information can be found in the Criminal Charges section of the Kann California Defense   Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer. That is our guarantee.

  1. CPC §29805(a) – Misdemeanant In Possession Of A Firearm:[23] Unlike Section 29800, CPC §29805(a) is a “wobbler”[24] offense in California, meaning that prosecutors can charge you with a Misdemeanor or a Felony crime under this California Penal Code section, depending on the facts of your case. You may not own, possess, purchase, receive, or have custody of, or control over, a firearm within ten years of a conviction under CPC §29805(a). Having a weapon is also illegal under this Code Section if you have an outstanding warrant.[25]

If you're convicted of one of the offenses listed in §29805,(a)[26] including violations of the Welfare and Institutions Code, and you possess, own, receive, purchase, or have custody of, or control over, a firearm, a Felony conviction under CPC §29805(a) may result in:

  • A term of up to three (3) years in a state prison;[27] OR,
  • A fine of up to $1,000; OR,
  • Both imprisonment and a fine.[28]

              Note: For purposes of this statute, your firearm doesn't need to actually work. The weapon just has to have been designed to shoot and it has to look like it could be shot.[29]

              Example: Defendant Dirk has a Misdemeanor conviction on his record for issuing unlawful Criminal Threats (a violation of CPC §422(a)). He's arrested one afternoon while carrying a crossbow and a quiver full of bolts (crossbow arrows) while walking down a suburban street.   Police, who know Dirk's criminal history, assume that he's about to threaten someone else, this   time with a firearm, so they charge Dirk with violating §29805(a). Should Dirk be convicted?

              Conclusion: Criminal Threats is one of the convictions which will prohibit a person from owning, possessing, purchasing, receiving, or having custody of, or control over, a gun under CPC §29805(a). Thus the statute makes it unlawful for Dirk to have a firearm. However, Dirk didn't     have a “firearm” on his person; he was carrying a crossbow and bolts, which, while constituting a weapon, aren't the components of a “firearm” for purposes of the statute.[30] Therefore, even               though there may be some other criminal liability for Dirk's decision to carry a weapon in public, he shouldn't be convicted under §29805(a) because an element of the crime can't be proven.   

              More information can be found in the Criminal Charges section of the Kann California Defense   Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer. That's guaranteed.        

  1. CPC §29820 – Juveniles Adjudicated Wards Of Court:[31] If you've been declared a ward of the court[32] (which is the same thing as a conviction, for statutory purposes), having committed one of the offenses listed in the subparts of CPC §29820,[33] you may not own, possess, receive, purchase, or have custody of, or control over, a firearm until you're at least thirty years old.

Since the prosecution can charge you with a Misdemeanor or a Felony, depending on the facts of your case, §29820 is a “wobbler.”[34] The penalty for a Felony conviction under §29820 may be:

  • A term of up to three (3) years in a state prison;[35] OR,
  • A fine of up to $1,000 (one-thousand dollars); AND,
  • Both imprisonment and a fine.[36]   

              Note: For purposes of this statute, your firearm doesn't need to actually work. The weapon just has to have been designed to shoot and it has to look like it could be shot.[37]

              Example: Defendant Diana was convicted of violating CPC §242 (Battery) when she was sixteen. The Juvenile Court declared her a ward of the court at that time and forbade her from having firearms until her thirtieth birthday. But Diana is arrested at the age of twenty. She has a .45 caliber pistol in her purse at the time. Police elect to charge Diana with violating CPC §29820 but Diana insists that she has a right to carry the weapon as an adult. Should she be convicted?

              Conclusion: Diana previously committed an offense which, per §29820, prohibits her from    firearms until she's thirty years of age. She was adjudicated a ward of the court at the time of her Battery trial. Both of these are elements of the crime. Thus Diana is forbidden to possess the   .45 caliber pistol for another ten years, since she was twenty when arrested with the weapon and was still a ward of the court. Therefore, although Diana is no longer a minor, the law is   clear: Diana has no legal right to possess a firearm under CPC §29820 and should be convicted.        

  1. CPC §29815(a) – Possession Of Firearm By Person On Probation:[38] Violating CPC §29815(a) involves knowingly purchasing, possessing, owning, receiving, or having custody of (or control over) a firearm when a term of your Probation expressly forbids you from doing so.

Since this offense can be charged as either a Misdemeanor or a Felony, depending on the unique facts of your case, §29815(a) is a “wobbler.”[39] The penalty for a Felony may be:

  • A term of up to three (3) years in a state prison;[40] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[41]

              Note: For purposes of this statute, your firearm doesn't need to actually work. The weapon just has to have been designed to shoot and it has to look like it could be shot.[42] Note, however, that   the law only applies to those who aren't prohibited from guns under §§29800(a) or 29805(a).[43]

              Example: Defendant Danilo is convicted Embezzlement for abusing his position as accountant      for a gun store. He funneled store profits into his personal bank account. Danilo is, however, granted Probation on the condition that he must stay at least 1000 feet from the gun store at all         times. Yet Danilo is found wandering very near the store one morning and arrested. Police    charge Danilo with violating CPC §29815(a). Danilo claims he has a right to possess firearms              simply because he isn't prohibited under CPC §§29800(a) or 29805. Should Danilo be convicted?

              Conclusion:  Danilo would be prohibited from firearms ownership under the law if the court expressly forbade him from firearms as a condition of his Probation – which it didn't do. Thus the first reason Danilo isn't guilty under CPC §29815(a) is that he wasn't instructed in a way which makes the statute apply to him. (He was told only to stay away from the store, not to refrain from possessing firearms.) Additionally, the facts don't tell us that Danilo was in possession of a firearm at the time of his arrest. But this is elementary under CPC §29815(a). The prosecution's failure to plead this fact should, in itself, guarantee that Danilo is acquitted, for the State must prove every element of every charge it makes. Danilo shouldn't be convicted of this accusation.

  1. CPC §29825(a) – Possession Of Firearm By Person Prohibited By Court Order:[44] Knowingly purchasing, possessing, owning, receiving, or having custody of (or control over) a firearm is a crime under CPC §29825(a) if you're aware of a court order requiring you not to do so pursuant to one of the listed offenses.[45] Note: even attempted acquisitions are illegal under this Section.

The statute applies to protective orders, injunctions, and TROs (temporary restraining orders).  

Since it can be charged as either a Misdemeanor or a Felony, depending on the unique facts of your case, CPC §29825(a) is a “wobbler.”[46]

If you're convicted of a Felony under CPC §29825(a), the penalty may be:

  • A term of up to three (3) years in a state prison;[47] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[48]

              Note: For purposes of this statute, your firearm doesn't need to actually work. The weapon just has to have been designed to shoot and it has to look like it could be shot.[49]

              Example:  Defendant Dalton has a conviction on his record for Elder Abuse (see Welfare and Institutions Code [WIC] §15610.07). Elder Victim also won a protective order from the court at     that time,[50] which was when Dalton was instructed not to have contact with Elder Victim and     not to possess a firearm. Dalton's arrested one afternoon while harassing Ex-Girlfriend at her apartment. Dalton has a .25 caliber pistol in his car when confronted. Police charge Dalton with    violating CPC §29825(a) but Dalton insists the law doesn't apply to him because he was nowhere near Elder Victim when arrested. Should Dalton be convicted of the charge?   

              Conclusion: Section 29825 strictly prohibits possession, ownership, purchase, receipt, or having custody of, or control over, a firearm if you've been convicted under any of the listed statutes and have had a protective order of any kind applied against you. In Dalton's case, he's banned from firearms possession owing to a conviction that resulted in a protective order requiring that    he refrain from firearms. Dalton may not, therefore, possess the pistol while the order's in effect  - irrespective of whether he's in the presence of Elder Victim. Dalton thus should be convicted.     

  1. CPC §23515 – Offense Involving Violent Use Of Firearms:[51] Section 23515 lists multiple crimes considered “violent use” for determining whether a firearms ban applies under §29800(a). They are: Assault With A Deadly Weapon (CPC §§245(a)(2) or (3), or (d)), Shooting At Inhabited House Or Motor Vehicle (CPC §246), and Brandishing A Firearm (CPC §§417(a)(2) and (c)).  

If you've committed one of the crimes listed in CPC §23515, the firearms-related penalty will be:

  • A lifetime ban on firearms ownership, purchase, receipt, possession, custody or control.

              Example: Defendant Darien has a drug addiction. She uses crack cocaine several times a day. Darien also carries a .22 caliber pistol because she's worried about being robbed. Darien is arrested when trying to buy drugs from Undercover Officer. Police find her pistol, confirm Darien's addiction with a registered nurse, and charge her with violating §29800(a) because she committed a crime listed in CPC §23515. Should Darien be convicted?

              Conclusion: Darien is subject to prosecution under §29800(a), but for a different reason. Darien, as a narcotic drug addict, may not own, possess, receive, purchase, or have custody of, or control over, a firearm under §29800(a). But police alleged that Darien violated a law contained in CPC §23515 as the predicate for charging her with being a Felon In Possession Of A Firearm. Drug addiction is not, however, a violation listed in CPC §23515. Therefore, while police are correct in asserting that Darien can't own a pistol, the reason cannot be found in §23515.      

  1. CPC §25400(a)(1), (3) – Carrying Concealed Firearm Within A Vehicle:[52] Penal Code 25400(a)(1) makes it illegal to have under your “control or direction any pistol, revolver, or other firearm capable of being concealed”[53] on your person. Sections (a)(1) and (3) apply specifically to concealed firearms inside your vehicle. The firearm must be “substantially concealed”[54] and you must know of its presence to violate the law.  

Since the offense can be charged as either a Misdemeanor or a Felony, depending on the unique facts of your case, CPC §25400(a) is a “wobbler.”[55] If you're convicted under CPC §25400(a)(1) or (3) and have a previous crime or narcotics-related offense on your record,[56] the penalty may be:

  • A term of up to three (3) years in a state prison;[57] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[58]

Note: “Firearms carried openly in belt holsters are not concealed.”[59]

Example: A firearms collector, Defendant Dallas, buys a one-shot Derringer pistol and a holster    that fits snugly onto his leg. He tucks the weapon into the holster, completely covering it with a pant leg, and then drives his truck onto a public street. Later, when he's stopped for speeding, Dallas volunteers that he has the weapon on his leg and shows it to Police Officer. Police Officer arrests Dallas for violating CPC §25400(a)(1) because Dallas is carrying a concealed firearm in his               truck. Should Dallas be convicted of the accusation?  

              Conclusion: Dallas knowingly concealed a pistol and took that pistol into public. Hiding the gun   so that it could only be seen if Dallas lifted his pant leg would also likely qualify as “substantially”   concealing the firearm. Had Dallas worn the weapon openly (on a belt or in a holster) he would not violate the Code Section by its own terms. However, given that Dallas went into public with a “substantially concealed” firearm on his person, he should be convicted under §25400(a)(1).    

Defenses To Felon In Possession Of A Firearm Under CPC §29800

Seven defenses against a charge of Felon In Possession Of A Firearm are:

You Were Unaware Of The Presence Of A Firearm

Example: Defendant Danni, a college student with a Felony drug conviction of her record, goes to the campus library late one night. But Danni accidentally takes Roommate's backpack, which is identical to hers, and doesn't realize this until she gets to the library. She's asked to open her backpack for a security check. Only then does Danni see Roommate's .38 caliber pistol. (Roommate has never told Danni about the existence of a weapon.) Campus police are summoned and Danni is arrested for being a Felon In Possession Of A Firearm, a violation of CPC §29800(a)(1). Danni swears she never knew about the weapon and wouldn't have taken it if she'd known. Should Danni be convicted of the accusation?

Conclusion: Danni, a convicted felon, was found with a pistol in her possession. These are two of the elements of CPC §29800(a)(1). However, there's reason to believe that Danni had no idea that she was in possession of a firearm. Danni took Roommate's identical backpack, not her own; she had had no idea that Roommate owned or carried a weapon; she didn't even look inside the backpack until she reached the library. Thus Danni can argue there's reasonable doubt regarding whether she actually violated the law. Since prosecutors must prove the guilt of defendants beyond a reasonable doubt in the US, Danni should be acquitted; there is reason to believe Danni that was unaware of the presence of a firearm.

You Only Possessed The Firearm For A Moment

Example: Defendant Dickie, who lives with a narcotics addiction, is walking past a liquor store when an alarm sounds and Robber runs onto the pavement. He pushes past Dickie, stumbles, and falls. A .22 caliber pistol tumbles onto the concrete as Robber hits the ground. A group of Young Students see the pistol hit the ground. It lands near them. Dickie, worried that a Young Student will pick up the gun and hurt him- or herself, grabs the pistol and shouts, “Don't touch that! I'll get rid of it!” He keeps Young Students away from the firearm and waits until police arrive. He makes sure to give them the weapon as soon as they approach him. Police later realize that Dickie has a drug problem and decide to charge him with being a Felon In Possession Of A Firearm, a violation of CPC §29800(a)(1). Should he be convicted?

Conclusion: While it's the duty of the defendant to prove the defense through a preponderance of the evidence, that he or she had only momentary possession of a gun is an excuse for an alleged violation of CPC §29800(a)(1).[60] Dickie possessed the gun dropped by Robber only for enough time to transfer it to police. This is either “transitory” or “momentary possession,” the first element of the defense.  He also held the weapon only to dispose of it (“I'll get rid of it!”), the second element. Finally, Dickie turned the pistol over to police as soon as they appeared, making no effort to prevent them from taking it. This is the third element. Thus Dickie only possessed the firearm for a moment. Dickie should not be convicted.

You Didn't Actually Possess The Firearm

Example: A job applicant, Defendant Denny, goes to an interview and, even though he has a Felony conviction on his record, Denny is offered the job. Denny celebrates by taking a picture with New Boss and posting it on a social network website. But Denny doesn't notice that New Boss has a pistol kept under glass inside the office when he takes the picture - nor does Denny notice that he and New Boss are standing in front of the shelf where the pistol is on display. Denny's Parole Officer does see, however, and reports Denny for being a Felon In Possession Of A Firearm in violation of §29800(a)(1).  Denny is charged but insists that he wasn't in “possession” of a firearm. Should Denny be convicted?

Conclusion: Denny, a convicted felon, was, in the broadest sense, within range of possessing a firearm, but he never actually had “possession” of the firearm. In fact, even if Denny had wanted to exercise physical control over the gun, Denny couldn't touch the weapon because it was stored under glass. But what's of greater significance is the fact that Denny never had any control over the pistol while inside the office, which would be an element of the crime under CPC §29800(a)(1). But the prosecution must prove every element of crimes with which they charge any defendant – and, if it can't, the jury or judge sitting for trial must find in favor of the accused. On these facts, Denny simply couldn't have committed a violation of the law. He should be acquitted because he wasn't actually in “possession” of a firearm.

You Had Justifiable Possession Of The Firearm

Example: Lake holds a sport fishing tournament in which Defendant Diane participates. Diane has a criminal record because she once waved a gun angrily at a process server. This resulted in a Felony conviction under CPC §246. Diane knows that she can't own - or even try to purchase - a firearm. While fishing, however, Diane notices a .45 pistol gleaming in the water. Worried that someone might get hurt,

Diane picks up the gun and brings it to nearby Police Officer. Later, when it's discovered that Diane has a criminal record, Diane is arrested for violating CPC §29800(a)(1). Should she be convicted of the charge?

Conclusion: When a person has justifiable possession of a firearm,[61] he or she is excused from violating CPC §29800(a)(1) even though that person would otherwise be guilty of illegally possessing that firearm. Diane didn't intend on purchasing, possessing, owning, or receiving a firearm, nor did she want to have custody of, or control over, a gun; she went fishing and found a pistol. Recognizing that the gun could be dangerous to the public, Diane then took the firearm to nearest law enforcement agent, who happened to be within walking distance. Since Diane: 1) found the weapon; 2) took the gun to the nearest agent of the law; and, 3) didn't need to inform a law enforcement agency that she was delivering a weapon into its custody, Diane has fulfilled the elements of a justifiable possession defense. She should be acquitted.

You Were Wrongfully Arrested

Example:  An ex-felon, Defendant Drake, is pulled over for speeding. Police Officer has Drake step from the car and “plants” a revolver under Drake's seat as Drake stands by the side of the road. Police Officer then claims to see the weapon gleaming underneath the seat. He “finds” it and uses it as a pretense to arrest Drake for Felon In Possession Of A Firearm (a violation of §29800(a)(1)). Should he be convicted?

Conclusion: Drake, as the facts state, was pulled over for speeding. It's a simple Vehicle Code violation. However, Police Officer then left a firearm underneath Drake's seat so as to create the impression that Drake had violated a more serious law. This is a fraud perpetrated on the criminal court. Since there was no weapon present in the car in actuality, Drake's arrest was wrongful and he should be acquitted.      

You Were Defending Yourself Or Someone Else

Example: Defendant Dontrelle has a conviction for Brandishing A Firearm In Front Of A Peace Officer (CPC §246) on his record. He went to his bank one afternoon to make a deposit. A man, Armed Robber, entered and Security Guards shot at him; Armed Robber killed a Guard, who fell dead at Dontrelle's feet, and continued shooting at the bank's customers. Dontrelle, fearing for his life, took the dead Guard's .38 caliber pistol, shot, and incapacitated Armed Robber. When police arrived they found Dontrelle ready to hand them Guard's pistol. Police, knowing Dontrelle and his criminal history, arrested him for being a Felon In Possession Of A Firearm (a violation of CPC §29800(a)(1)). Should Dontrelle be convicted? 

Conclusion: Self-defense permits possession of a firearm even for a convicted felon. Dontrelle needs to establish that he needed to use the weapon to protect himself, that the force he used was no greater than the force with which he was met, and that he used force for no longer than was necessary for the defense. On the facts, Dontrelle took Guard's weapon, shot Armed Robber (who was shooting at customers, including Dontrelle), incapacitated Armed Robber (preventing him from further attacks) and did nothing more. Under the circumstances, greater force was neither needed nor used. When law enforcement arrived, Dontrelle surrendered Guard's pistol, making no effort to hide from them that he was a felon in possession of a weapon. Dontrelle should be acquitted because he was defending himself.  

The Allegation Is False

Example: Ex-Wife, the former spouse of Defendant Dani, resents that Divorce Court Judge gave Dani custody of their children. Ex-Wife hatches a plan to get the children by reporting that Dani – who has a previous conviction for committing Assault With A Deadly Weapon (CPC §245(a)) and is prohibited from owning firearms – is in possession of a loaded pistol. Police respond, arrest Dani, and charge her with Felon In Possession Of A Firearm under CPC §29800(a)(1). Dani insists that she has no weapon, however, and police can find none after searching her apartment. Should Dani be convicted of the accusation?

Conclusion: As the facts state, Ex-Wife told a falsehood in order to take the children. Since Dani had no weapon (and the police found none[62]), she shouldn't be convicted of the charge. The accusation is false.

Restoring Your Right To Possess and Use Firearms

A skilled and experienced defense attorney may be able to help you restore your right to use, possess, own, receive, purchase, or have custody or control over, firearms. Below is a quick guide to restoring your right to possess and use firearms.

This page addresses five methods related to restoration of your gun rights. These are: Expungement; Reducing A Felony “Wobbler” Conviction To A Misdemeanor; a Certificate of Rehabilitation or Gubernatorial (Governor's) Pardon; Rehabilitation (For Peace Officers Convicted Under CPC §29800); and being convicted of a Crime That Was A Misdemeanor Before Being Added To CPC §29800.

  1. Expungement

The process of Expungement (CPC §1203.4(a)) allows you to withdraw a plea of guilty or no contest if you've “fulfilled the conditions of probation for the entire period of probation, or” you've “been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that”[63] you should be permitted to withdraw your prior pleading.  

              Note, however, that Expungement will not in itself restore your gun rights.[64] Expungement is useful as a remedy for being required to disclose convictions to potential employers, or on loan applications, rental applications or in any other situation in which you'd be required as a matter of law to tell another about your conviction. Expungement can also be an important first step in restoring your gun rights. If you've had your record expunged, you can use that fact in applying        to reduce a Felony “wobbler” conviction to a Misdemeanor or to apply for a Pardon from the Governor's Office.

              There are, however, convictions which cannot be expunged. Any crime that counts as a “Strike”    under the state's “Three Strikes” system can't be expunged.  The same is true of several sex          crimes. For example, Expungement isn't possible if you've been convicted of Lewd Acts On A               Child (CPC §288(a))), Possession Of Child Pornography (CPC §311.1(a)), or a Felony act of               Statutory Rape (CPC §261.5). Note, furthermore, that even if yours is a conviction which allows     you to apply for Expungement, one condition of your application might be reimbursing the court for previous costs incurred and services rendered.[65]

  1. Reducing A Felony “Wobbler” Conviction To A Misdemeanor

              Felony “wobbler”[66] convictions can be reduced to Misdemeanors under the right circumstances. Sentence reduction will, in turn, restore your right to firearms, if a Misdemeanor won't in itself       prohibit you from use of firearms. There are, however, situations in which no sentence lessening is possible, such as being convicted of a crime for which the only sentence is a Felony (also known as a “straight Felony”). A “wobbler,” however, will allow you to petition for reduction of  your sentence.

              There are conditions for restoring your gun rights after reducing your Felony “wobbler.” If your Felony sentence is lessened to one of the Misdemeanors requiring a ten-year waiting period, you will still have to wait ten years before your gun rights are restored. Additionally, if you have an addiction to narcotics, reducing your Felony conviction to a Misdemeanor will have no impact  on your gun rights restrictions. You will still be prohibited entirely from firearms.

           If you wish to lessen your sentence, you may petition the courts, but you must also give the prosecutor who convicted you written notice to appear at your hearing and the opportunity to oppose your request.[67] You may also petition for a reduction if you've finished your Probation, or a county jail term, after a Felony conviction, or if you finished your sentence in a county jail after being sentenced for a Felony offense without receiving Probation.[68]

  1. Certificate Of Rehabilitation/Gubernatorial (Governor's) Pardon

              Certificate Of Rehabilitation: You may also apply for a Certificate of Rehabilitation following conviction for a Felony offense or a Misdemeanor sex crime,[69] but only if you've resided in California for five years after the earlier of: 1) completion of your sentence; OR, 2) finishing Probation or parole. There may be an additional waiting period of two to five years, depending on the offense of which you were convicted, per CPC §4852.03.[70] However, if your application for a Certificate of Rehabilitation is granted, the request will be automatically treated as a petition for a Pardon and will be sent to the Governor's desk.[71] To apply for a Certificate of Rehabilitation, submit your application to the Superior Court of your county of residence.

              There are, however, people for whom Rehabilitation is unavailable, including “persons serving a mandatory life parole, persons committed under death sentences”[72] and those who were convicted of sex crimes like Lewd Acts On A Child and Forced Oral Copulation (CPC §288a).[73]The denial of access to a Certificate of Rehabilitation does not, however, deny the Governor the power to issue a Pardon to you under “extraordinary circumstances.”[74]

              Gubernatorial (Governor's) Pardon: The Governor's Pardon process is particularly useful for persons living outside the state who wish to be relieved of a conviction incurred in California and those who committed certain Misdemeanors or sex crimes. Note, however, that there are ordinarily preconditions to considering your Pardon application, including discharge from jail or prison, and at least ten years of lawful behavior following the end of your sentence.

              However, while the Governor has full authority over grant of pardons, you can't be pardoned if you've committed two (or more) felonies unless a majority of the justices of the California Supreme Court recommend that you be awarded the Pardon. Unfortunately, since Pardon power is vested exclusively in the Governor's Office, there's no mechanism that compels the Governor to seek the state Supreme Court's opinion on these matters.[75]

  1. Rehabilitation (For Peace Officers Convicted Under CPC §29800)

              If your career or job requires that you have access to a firearm, you're permitted a one-time petition to have your firearms rights reinstated under CPC §29855(a). Only “Peace officers” as defined within the statute are eligible for this form of legal relief.[76] Rehabilitation requires that     you petition the court that sentenced you and request that it “reduce or eliminate the [firearms] prohibition, impose conditions on reduction or elimination of the prohibition[,]”[77] or do              whatever the court deems necessary to reinstate your gun rights.

              You must have been convicted of one of three offenses to be eligible for Rehabilitation: Spousal Battery (CPC §273.5); Violation Of A Protective Order (CPC §273.6); or Stalking (CPC §646.9). You cannot have been convicted of one of the many other crimes listed in CPC §29805[78] [see above]. Counseling will also be required, as the court deems appropriate.[79] However, if the court “[f]inds by a preponderance of the evidence that [ ] [you] [are] likely to use a firearm in a safe and lawful manner,” the court can grant you “relief from the [firearms] prohibition[.]”[80]  

  1. Crime That Was A Misdemeanor Before Being Added To CPC §29800

              CPC §12021(c)(3), which predates CPC §29800, permits those prohibited from firearms because of a Misdemeanor conviction to apply once for reinstatement of their gun rights. The crime of which you were convicted had to have occurred prior to it being listed in statute. The list parallels the offenses recited in CPC §29805.

              As with Rehabilitation [see above], the court will have to determine by a preponderance of evidence whether you're likely to safely and lawfully use firearms again, and that you aren't otherwise prohibited firearms use under the law. If so, reinstatement of your firearms rights can be ordered by the court.            

What Can I Do If I'm Charged With Felon In Possession Of A Firearm?

The State of California regards firearms crimes as serious offenses. If you're charged with Felon In Possession Of A Firearm, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Felon In Possession Of A Firearm, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.   

References

[1] See 18 U.S.C. §§921 (a) (33) (A), 922 (g) (9).

[2] “[A]n offense [under CPC §23515] that involves the violent use of a firearm includes any of the following: [¶] (a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245. [¶] (b) A violation of Section 246. […] [¶]  (d) A violation of subdivision (c) of Section 417.” See CPC §§23515 (a)-(b), (d).

[3] “(a)(1): In any case in which a minor is alleged to be a person described in Section 602 [creating Juvenile Court jurisdiction over persons made wards of the state] by reason of the violation, when he or she was 16 years of age or older, of any offense listed in subdivision (b) or any other felony criminal statute, the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. […] [¶] (2) In any case in which an individual is alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 or 15 years of age, of any offense listed in subdivision (b), but was not apprehended prior to the end of juvenile court jurisdiction, the district attorney or other appropriate prosecuting officer may make a motion to transfer the individual from juvenile court to a court of criminal jurisdiction.” See WIC §§707 (a) (1), (2).

[4] See People v. O'Neil, 62 Cal.2d 748 (1965). (Defendant O'Neil was convicted of driving while addicted to a narcotic and claimed lower court erred in defining “addiction” in its jury instructions; Cal.Sup.Ct. agreed, remanded for redetermination of issue.)

[5] “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[6] “A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion. The frame or receiver of such a firearm is also a firearm for the purpose of this instruction. […] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[7] CPC §29800 applies to convicted felons, persons with Felony warrants outstanding, those who've been convicted of violating CPC §§23515(a)(1), (a)(2), or (b), those who are addicted to narcotics, those who commit violations of CPC §417(a)(2) at least twice, and juveniles convicted under CPC §23515 after being tried as adults in adult courts or juveniles convicted of felonies.

[8] Being unaware of your status as a Felon is not an excuse for violating the law except in extraordinary situations. See People v. Snyder, 32 Cal.3d 590 (1982). (Defendant Snyder appealed conviction for being a felon in possession of firearm on basis that she was misinformed of her status as a Felon; Cal.Sup.Ct. upheld conviction on basis that Snyder was responsible for knowing her own legal status.)

[9] See California Criminal Jury Instructions 2510 (CALCRIM) (2017).                                                                                                                     

[10] Jury instructions read as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (owned/purchased/received/possessed) a firearm; [¶] 2. The defendant knew that (he/she) (owned/purchased/received/possessed) the firearm; [¶] [AND] [¶] 3. The defendant had previously been convicted of (a felony/two offenses of brandishing a firearm/the crime of <a misdemeanor offense from Pen. Code, § 29805 or Pen. Code, § 23515(a), (b), or (d), or a juvenile finding from Pen. Code, § 29820>.” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[11] Undocumented immigrants convicted under CPC §29800 may also be deported. See 8 USC 1227 (a) (2) (C).

[12] See CPC §18 (a).

[13] See CPC §672.

[14] See Endnote 10.

[15] See Endnote 11.

[16] See Endnote 12.

[17] See Endnote 13.

[18] See Endnote 9.

[19] See Endnote 11.

[20] See Endnote 12.

[21] See Endnote 13.

[22] It's possible that Diego would instead be charged with a different offense.

[23] See Endnote 10.

[24] See “Wobbler” definition at USLegal.com.

[25] See CPC §29805 (a).

[26] CPC §29805 lists the following sections, each of which results in a ban on ownership or possession of firearms: CPC §§71, 76, 136.1, 136.5, 140, 148 (d), 148.5 (f), 171b, 171c (1) (a), 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 422.6, 490.2, 626.9, 646.9, 830.95, 17500, 17510, 25300, 25800, 26100 (b), 26100 (d), 27510, 27590 (c), 30315, 32625; WIC §§871.5, 1001.5, 8100, 8101, 8103 [Repealed and added by Stats. 2018, Ch. 861, Sec. 2].

[27] See Endnote 12.

[28] See Endnote 25.

[29] See Endnote 10.

[30] See Endnote 6.

[31] See Endnote 10.

[32] See Welfare and Institutions Code (WIC) 607 (a).

[33] The statute references, for example, CPC §1203.073 (selling or distributing narcotics), CPC §25850 (carrying a loaded firearm in public), and CPC §26100 (a) (permitting a loaded firearm inside a motor vehicle). 

[34] See Endnote 24.

[35] See Endnote 12.

[36] See CPC §29820 (c).

[37] See Endnote 10.

[38] Jury instructions read as follows: “1. The defendant (owned/purchased/received/possessed) a firearm; [¶] 2. The defendant knew that (he/she) (owned/purchased/received/ possessed) the firearm; [¶] [AND] [¶] 3. A court had ordered that the defendant not (own/purchase/receive/possess) a firearm.” See California Criminal Jury Instructions 2512 (CALCRIM) (2017).

[39] See Endnote 24.

[40] See Endnote 12.

[41] See CPC §29815 (a).

[42] See Endnote 38.

[43] See CPC §29815 (a).

[44] Jury instructions read as follows: “1. The defendant (owned/purchased/received/possessed) a firearm; [¶] 2. The defendant knew that (he/she) (owned/purchased/received/possessed) the firearm; [¶] [AND] [¶] 3. A court had ordered that the defendant not (own/purchase/receive/possess) a firearm; [¶] [AND] [¶] 4. The defendant knew of the court's order.” See California Criminal Jury Instructions 2512 (CALCRIM) (2017).

[45] The statute references, among other laws, CPC §§136.2 and 646.91. See CPC §29825 (a).

[46] See Endnote 24.

[47] See Endnote 12.

[48] See CPC §29825 (a).

[49] See Endnote 44.

[50] The order would be issued under CPC §§15657.03 (u) (1), (3).

[51] The statute requires proving that you committed: “(a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245. [¶] (b) A violation of Section 246. [¶] (c) A violation of paragraph (2) of subdivision (a) of Section 417. [¶] [or] (d) A violation of subdivision (c) of Section 417.” See CPC §§23515 (a) - (d).

[52] Jury instructions read as follows: “1. The defendant carried within a vehicle a firearm capable of being concealed on the person; [¶] 2. The defendant knew the firearm was in the vehicle; [¶] 3. The firearm was substantially concealed within the vehicle; [¶] AND [¶] 4. The vehicle was under the defendant's control or direction.” See California Criminal Jury Instructions 2521 (CALCRIM) (2017).

[53] See CPC §25400(a).

[54] See Endnote 52.

[55] See Endnote 24.

[56] Possession of a firearm while being prohibited under §29800 (a) is always a Felony. See CPC §25400 (c) (4).

[57] Carrying or allowing a concealed weapon to be carried in a vehicle is also punishable under CPC §1170 (h) (part of California's “Three Strikes” law).

[58] See CPC §25400 (c) (5).

[59] See Endnote 52.

[60] “If you conclude that the defendant possessed a firearm, that possession was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that: [¶] 1. (He/She) possessed the firearm only for a momentary or transitory period; [¶] 2. (He/She) possessed the firearm in order to abandon, or dispose of, or destroy it; [¶] AND [¶] 3. (He/She) did not intend to prevent law enforcement officials from seizing the firearm. [¶] The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true.” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[61] “If you conclude that the defendant possessed a firearm, that possession was not unlawful if the defendant can prove that (he/she) was justified in possessing the firearm. In order to establish this defense, the defendant must prove that: [¶] 1. (He/She) found the firearm/took the firearm from a person who was committing a crime against the defendant; [¶] [AND] [¶] 2. (He/She) possessed the firearm no longer than was necessary to deliver or transport the firearm to a law enforcement agency for that agency to dispose of the weapon; [¶] [AND] [¶] 3. If the defendant was transporting the firearm to a law enforcement agency, (he/she) gave prior notice to the law enforcement agency that (he/she) would be delivering a firearm to the agency for disposal. [¶] The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true.” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[62] “[The jurors] may not find the defendant guilty unless […] [they] all agree on which firearm [the defendant] (owned/purchased/received/possessed).” See California Criminal Jury Instructions 2510 (CALCRIM) (2017).

[63] See CPC §1203.4 (a) (1).

[64] See CPC §1203.4 (a) (2).

[65] See CPC §1203.4 (d).

[66] See Endnote 24.

[67] See CPC §1203.3 (b) (1).

[68] See CPC §1203.4a (a).

[69] See CPC §4852.01 (a), (b).

[70] See CPC §4852.03 (a) (1) – (3) [Repealed (in Sec. 13) and added by Stats. 2017, Ch. 541, Sec. 14].

[71] See CPC §4852.16 (a).

[72] See CPC §4852.01 (c).

[73] See above.

[74] See CPC §4852.01 (d).

[75] You are also ineligible for a Pardon if you committed a Felony in another state or a Felony under federal law.

[76] Specifically, the statute references CPC §§830.1, 830.2, 830.31, 830.32, 830.33, and 830.5.

[77] See CPC §29855 (d).

[78] See CPC §29855 (d) (3).

[79] See CPC §29855 (e).

[80] See above.

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