In California, as in all other states, convicted felons are not permitted to own or possess firearms. Below is a legal overview of what happens when a convicted felon is in possessson of a firearm and when that possession may be legal.
The prohibition on felons possessing firearms includes persons convicted of certain misdemeanor offenses and those deemed to be narcotic addicts. In addition to felons there are other categories of persons who are prohibited from gun ownership as well. If you are included in one of these prohibited categories, then you may be convicted of violating Penal Code Section 29800 for possessing a firearm so long as the DA proves any of the following:
- You owned, purchased, received or possessed a firearm
- And you knew of its presence
A felon for purposes of this code section is someone who fits within the following categories:
Drug addicts are those individuals who have a physical or psychological dependence on a drug and can tolerate substantial dosages3.
Often, a temporary restraining order (TRO), also known as a protective order, will prohibit the person who is the subject of the order from owning or possessing a firearm and who will have to surrender them to law enforcement under PC 29825. The prohibition extends to any attempt to purchase or possess a firearm by these individuals.
You may also be prohibited from owning, receiving, possessing, buying or attempting to buy a firearm while on probation, even if the offense for which you were convicted is not a felony.
Other prohibited persons include:
- Persons determined to be a danger to yourself or others due to a mental illness
- Persons found incompetent to stand trial
- Persons found not guilty at trial by reason by insanity
- Persons adjudged a mentally disordered sex offender
- Persons placed under conservatorship because you are gravely ill due to chronic alcoholism or due to a mental disorder
- Persons dishonorably discharged from the military (federal law)
- Undocumented immigrants
- Those who renounced their US citizenship
- Fugitives from justice (federal law)
- You were adjudged a ward of juvenile court for certain violent crimes such as murder, attempted murder, assault with a deadly weapon, rape or robbery among others and may not possess a firearm before the age of 30
Possession consists of being in actual control or having the weapon on your person. There is also constructive possession where you have the firearm in your car, home or office rather than directly on or with you4.
You have to have known that the weapon was in your possession, directly or constructively. Picking up the wrong piece of luggage or package or having had someone ask you to deliver a package without knowledge of its contents is a defense. The trier of fact will have to examine the facts and circumstances of your allegation of lack of knowledge to ascertain if it was reasonable
You have to have been in possession of a firearm5 to be convicted and the firearm is one that fits within the following definition under PC 16520.
- A device designed to be used as a weapon
- From which a projectile is expelled
- Through a barrel
- By the force of explosion or combustion
The firearm does not have to be complete to be considered a “firearm” for the purposes of this code section. It can be the receiver or frame. A frame is the main section of the gun that has the mounting and operating parts. A receiver contains the weapon’s mechanical parts.
Other firearms under PC 16520 are Tasers, flare guns or rocket propelled launcher6. There is no distinction between a loaded or unloaded firearm to be considered in possession of a firearm under this code section and be exposed to criminal liability.
As indicated above, the element of knowledge of possession is absent if you were reasonably unaware that the firearm was in your possession. Another aspect of this is lack of knowledge that the device was an operational firearm. You can also successfully assert that you were unaware of a gun found in a car belonging to someone else. This defense is not valid if the weapon was in plain view.
Even if you did know that a weapon was in your residence, this does not constitute possession by you if another person in your home did possess it such as a roommate. So long as you can show that the weapon was not within your control, it is not possession.
Temporary possession is also a defense. You may lawfully possess the firearm if you immediately intended to dispose, abandon or destroy it7. Your possession of the firearm for this purpose cannot be coupled with the intent to prevent law enforcement from seizing the weapon.
There may be circumstances where possession of the firearm was justified. For example, you subdued an attacker with a gun and took the firearm away. If you have the gun, you must promptly notify law enforcement so that either an officer will come to you to retrieve it or you inform them that you are delivering it. This should also extend to instances where you found a firearm and are advising law enforcement that you are delivering it.
Self-defense involves the justifiable use of force against another if you reasonably believed you or someone else was in imminent danger of harm. Also, you may not use more force than is necessary to stop the attack or subdue the attacker.
In the context of a felon or other prohibited person from possessing a firearm, there are other conditions that must be present. These include:
- You were under the reasonable belief that you or others were in imminent danger8 of great bodily harm and,
- A firearm became available to you without a preconceived plan9 and,
- You used or possessed the firearm just long enough to defend yourself or other person10, and
- There was no alternative way at that moment to avoid the danger or to reasonably defend yourself or other person
You must use any other alternative available to you at or during the moment to avoid using or possessing the firearm11. This includes running from the scene unless the person is shooting at you or has a firearm pointed at you. But if you subdue the attacker or render the person incapable of harming you, you may face prosecution if you pick up the firearm and threaten the subdued attacker.
Self-defense must be proved by you if you allege it since it is an affirmative defense. If you can prove each element by a preponderance of the evidence, or that it was more likely than not that you possessed or used the weapon in self-defense, than you should be found not guilty.
A violation of PC 29800 is always a felony if you are a felon in possession of a firearm. If convicted, you face:
- 16 months, 2 or 3 years in county jail
- And/or a fine up to $10,000
- Deportation proceedings if not a US citizen
A violation of unlawfully possessing a firearm, though, becomes a “wobbler” offense pursuant to PC 29805 if you were previously convicted of one of the misdemeanor offenses that resulted in you being prohibited from owning, possessing or purchasing a firearm for 10 years. A wobbler is one where the DA has discretion to charge you with either a felony or misdemeanor based on your criminal history and the facts and circumstances of your case.
If you are convicted of a misdemeanor, you face up to one year in county jail and/or a fine up to $1000. If convicted of a felony, you face:
- 16 months, 2 or 3 years in county jail
- And/or a fine up to $1000
For those individuals who were adjudged wards of the court and prohibited from owning, possessing or purchasing a firearm until the age of 30 but have been found in violation, they are punished under PC 2982012. This is a wobbler offense as well. If convicted, you face:
- Up to one year in county jail if a misdemeanor
- 16, months, 2 or 3 years if a felony
Record Expungement For Assault With A Firearm
Expungement is a desired form of post-conviction relief that can relieve a person of the indignities and real-life barriers to living a normal and productive life that a convicted felon, and even those convicted of certain misdemeanors, often experience. Misdemeanors and many felony offenses do qualify for expungement. Its main benefit is that is shields your conviction record from public view. The code section under which expungement relief is found is PC 1203.4.
You may qualify for expungement for a felony conviction under Penal Code 29800 since the section does not require any time served to be in state prison. Any misdemeanor conviction qualifies for expungement, provided you meet other conditions. As indicates, an expungement does not totally erase your record though any members of the general public including private employers, landlords or anyone else not associated with the government will see that you have no criminal conviction when a criminal background check is performed.
If you did serve time in state prison for a felony conviction under PC 29800, you can still obtain relief to a limited degree by filing a petition for a Certificate of Rehabilitation. You generally must wait a minimum of 7 years after you completed all conditions of your sentence and probation and have resided in California for at least 5 years.
The waiting period can be shortened provided you have not reoffended and can demonstrate evidence of rehabilitation such as having a good job and providing for your family. If so, you would petition the court to waive it in the interests of justice.
A Certificate of Rehabilitation has the following benefits:
- Automatic qualification for a Governor’s Pardon
- No automatic disqualification from public employment
- Offers significant evidence of rehabilitation that potential employers, landlords or schools may consider as evidence of your sound character
What a Certificate of Rehabilitation will not do:
- Your conviction may be used for sentence enhancement if you do commit another felony offense
- No reinstatement of your right to possess or own firearms
- You still have to disclose your conviction if testifying or giving any statement while under oath
- You will not qualify for the military or any law enforcement position
Only a Governor’s Pardon will restore all of your civil rights including the right to own and possess firearms.
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- California Penal Code 29800(a)(1) – Any person who has been convicted of, or has an outstanding warrant for, a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. California Legislature [↩]
- California Penal Code 29800(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments., California Legislature [↩]
- People v. Victor (1965) ante, pp. 280, 302-305 [42 Cal.Rptr. 199, 398 P.2d 391]; i.e., The 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. [↩]
- Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d 235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M. (2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297]. [↩]
- Firearm Deﬁned. Pen. Code, § 16520. [↩]
- California Penal Code 16520(c) – As used in the following provisions, “firearm” also includes a rocket, rocket propelled projectile launcher, or similar device containing an explosive or incendiary material, whether or not the device is designed for emergency or distress signaling purposes:, California Legislature [↩]
- Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47 Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115] [↩]
- Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr.167], disapproved on other grounds by People v. Humphrey (1996) 13 Cal.4th 1073, 1088–1089 [56 Cal.Rptr.2d 142, 921 P.2d 1] [↩]
- Possession Must Be Brief and Not Planned. People v. McClindon (1980) 114 Cal.App.3d 336, 340 [170 Cal.Rptr. 492]. [↩]
- Temporary Possession of Firearm by Felon in Self-Defense. People v. King(1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d 1000]. [↩]
- Duty to Retreat Limited to Felon in Possession Cases. People v. Rhodes (2005) 129 Cal.App.4th 1339, 1343–1346 [29 Cal.Rptr.3d 226]. [↩]
- California Penal Code 29820(a) – This section applies to any person who satisfies both of the following requirements: (1) The person is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in Section 29805, or any offense described in Section 25850, subdivision (a) of Section 25400, or subdivision (a) of Section 26100. (2) The person is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in Section 29805, or any offense described in Section 25850, subdivision (a) of Section 25400, or subdivision (a) of Section 26100. (b) Any person described in subdivision (a) shall not own, or have in possession or under custody or control, any firearm until the age of 30 years. (c) A violation of this section shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (d) The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section. Notwithstanding any other law, the forms required to be submitted to the department pursuant to this section may be used to determine eligibility to acquire a firearm. [↩]
- Calfornia Penal Code 29825(a) – Every person who purchases or receives, or attempts to purchase or receive, a firearm knowing that the person is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (b) Every person who owns or possesses a firearm knowing that the person is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. [↩]