Per the Second Amendment of the U.S. Constitution, American citizens have the legal right to keep and bear firearms. In California, however, you will lose this right if you have been found guilty of any felony.
After losing your firearm rights after a felony conviction, it is a criminal offense to possess or own a gun, per California Penal Codesection 29800. Prosecutors treat this crime seriously to discourage other convicted felons from breaking the law in this manner. A conviction could lead to a lengthy prison sentence and hefty fines.
California’s Penal Code section 29800 criminalizes three categories of people possessing guns. These are people whom:
See also Judicial Council of California Criminal Jury Instruction (“CALCRIM”) “Possession of Firearm by Person Prohibited Due to Conviction – No Stipulation to Conviction — Pen. Code §§ 29800, 29805, 29820, 29900”: CALCRIM Number 2510;
“Possession of Firearm by Person Prohibited by Court Order — Pen. Code §§ 29815, 29825”: CALCRIM Number 2512; and “Possession of Firearm by Person Addicted to a Narcotic Drug — Pen. Code § 29800”: CALCRIM Number 2513.
The prosecution must prove these three elements for you to be sentenced for the crime of felon with a gun:
This law defines a firearm/gun as:
Examples of guns include revolvers, rifles, pistols, tasers, and shotguns. BB guns and pellet guns are not classified as guns under this law.
If you violate P.C. § 29800, the prosecutor will charge you with a felony. Upon conviction, you will be fined not more than $10,000 and/or serve time in prison for sixteen months, two years, or three years. The judge may also grant you felony probation instead of imprisonment.
Apart from incarceration and a fine, being convicted under this law can also have adverse immigration consequences if you are not a legal resident. California law states that gun offense convictions can lead to deportation for immigrants. Gun offense convictions include a conviction under Penal Code section 29800.
A felony conviction also subjects offenders to a lifetime ban from possessing or owning a firearm in California, unless they successfully restore their gun rights. You can have your firearm rights restored through:
A record expungement means the court sets aside your criminal conviction. This removes most of the challenges a conviction brings, including restrictions on firearm rights.
Remember that a record expungement is generally possible provided an accused completes their probation and/or jail term, whichever applies. However, expungements are not an option if an accused was pronounced guilty of any serious sex crime or an offense that led to incarceration in prison.
You may be capable of restoring your firearm rights by having your felony charges lowered to misdemeanor charges. This sometimes happens with “Wobbler” (Penal Code section 17(b)). Wobblers are crimes that the prosecuting attorney can prosecute as either felonies or misdemeanors, depending on the specific case facts and the defendant’s criminal history.
If the judge finds you guilty of a felony wobbler, your lawyer can file a petition requesting the judge to lower it to a misdemeanor. Should the judge grant the petition, you might be capable of gaining back your right to buy/own a firearm.
Some convicted offenders in California may apply for a Certificate of Rehabilitation. The application is open to people convicted of felonies and specific misdemeanor sex crimes. A Certificate of Rehabilitation refers to a court order declaring that an offender is rehabilitated.
If the order is granted, the court forwards it to the Governor, and once the Governor receives it, it becomes an application for a Governor’s pardon. You can have your firearm rights back if the Governor grants the pardon.
There are various legal defenses you, with the help of your lawyer, can argue to try and beat the P.C. § 29800 violation charges against you. Common ones include arguing that:
Prosecutors usually charge this offense after discovering a firearm by searching a person or seizing their property. However, a police officer can only search a person or confiscate property if they have a valid search warrant. Alternatively, if they do not have a search warrant, their search should fall under one of the exceptions to the warrant requirement.
If the police found the gun in question after conducting an illegal search and seizure, you can file a motion to suppress evidence. If the judge grants this motion, they will likely dismiss the entire case.
See Motion to Dismiss (California Penal Code section 995: California Penal Codesection 995); and
Motion to Suppress Evidence (California Penal Code section 1538.5: California Penal Codesection 1538.5).
By arguing this defense, you are admitting that you had a firearm. However, you are also arguing that you only had the gun for a short while to dispose of it. You must demonstrate the following facts for this defense to be successful:
Again, you are admitting that you had a gun by asserting this defense. But you will be saying that your reason for having it is justified. The reason would be that you seized it from somebody committing an offense. You must prove these facts for this defense to be successful:
Self-defense or defense of another entails the justified application of force upon another person if you have reason to believe you or another was in immediate danger of injury. However, you must not have applied a greater force than required to subdue the attacker or stop the attack.
See “Possession of Firearm by Person Prohibited by Statute: Self-Defense”: CALCRIM Number 2514; and (“Right to Self-Defense or Defense of Another — Non-Homicide”): CALCRIM Number 3470.
In the case of a convicted felon or any other person prohibited from having a gun, additional conditions must be present. They include:
You must have utilized any other reasonable way at your disposal during or at the time to avoid possessing or using a gun. This includes escaping from the scene of danger unless the attacker had a gun pointed at you or is shooting at you.
However, should you subdue the person or render them incapable of injuring you, you could be prosecuted if you nevertheless take the gun and threaten the already subdued attacker.
You must prove self-defense if you claim it because it is an affirmative defense. If you successfully demonstrate all the elements by a preponderance of the evidence, the judge or jury should not find you guilty.
The prosecution cannot prove the element of knowledge if you reasonably did not know that you had the gun in your possession. Another aspect of this is arguing that you did not know that the firearm was operational.
You could also successfully argue that the weapon was found in someone else’s car, which you were driving, but did not know it was there. Or, the police found a gun in your home, but it belonged to your roommate, and you were unaware that the gun was in your home. Note, however, that you cannot assert this defense if the gun is in plain view.
Even if you knew that a firearm was in your home, it does not mean you possessed it if it belonged to someone else in your residence — for example, a roommate. Provided you can prove that you had no control over the weapon, it does not constitute possession.
Your lawyer may successfully argue that the police arrested you wrongfully after someone accused you falsely. It could be that the accuser accused you out of revenge, anger, or jealousy. It could be that they planted the gun somewhere to make it seem like you were illegally possessing it.
Felon in possession of ammunition, codified at P.C. § 30305(a)(1), is a closely related crime to felon in possession of a firearm. P.C. § 30305(a)(1) makes it an offense to possess, own, or have in your custody ammunition if you have been prohibited from possessing or owning a gun.
The categories of people we mentioned under P.C. § 29800 as being banned from owning/possessing a firearm are therefore prohibited from owning/possessing ammunition, including convicted felons.
Other people prohibited from possessing or owning a gun or ammunition are:
Other terms for this crime are “unlawful possession of ammunition’’ and ‘’possession of ammunition by a person prohibited.”
For the judge to convict you of this offense, the prosecutor must prove three elements beyond a reasonable doubt. These are:
See “Possession of Ammunition by Person Prohibited from Possessing Firearm Due to Conviction or Mental Illness — Pen. Code § 30305(a)”: CALCRIM Number 2591; and“Possession of Ammunition by Person Prohibited from Possessing Firearm Due to Court Order — Pen. Code § 30305(a)”: CALCRIM Number 2592.Ammunition refers to a cartridge, bullet, clip, magazine, autoloader, speed loader, or projectile that can be fired from a gun with a fatal consequence. This law applies to all ammunition, regardless of what type of firearm the ammunition is used.
Violation of P.C. § 30305(a)(1) is considered a wobbler. Upon a misdemeanor conviction, you will face a maximum jail sentence of one year. For a felony conviction, you will be subject to a prison sentence that does not exceed three years. Apart from a prison or jail term, the judge may order a fine of up to one thousand dollars.
The defenses against P.C. § 30305(a)(1) violation charges are similar to those against P.C. § 29800 violation charges. They include:
There are three other offenses related to a P.C. § 29800 violation. They are:
P.C. §186.22 is the state’s law that criminalizes participating in a criminal street gang. It is related to a felon in possession of a firearm offense because a convicted felon may be found with a gun violating the law if they are a street gang member.
This statute also imposes an enhanced sentence if someone commits an offense for a gang’s benefit. That person could be a convicted felon committing a criminal offense using a gun they are prohibited from possessing in the first place.
A sentence enhancement implies the offender serving a prison term to add to any period they will do for the underlying crime.
See also “Carrying Firearm: Active Participant in Criminal Street Gang — Pen. Code §§ 25400(c)(3), 25850(c)(3)”: CALCRIM Number 2542.
P.C. § 29805 prohibits you from possessing or owning a firearm if you committed a specified misdemeanor offense and tried to possess or own the firearm within ten years from your conviction date. This California statute imposes a ten-year ban on owning/possessing a firearm for specific misdemeanor convictions.
Examples of these misdemeanor crimes are:
Violating P.C. § 29805 is a “Wobbler” (California Penal Code section 17(b)) crime. A misdemeanor conviction carries a maximum of a year in jail and up to a thousand dollars in fines. A felony conviction is punishable by incarceration in prison or jail for a period not exceeding three years.
P.C. § 12022.53 is the state’s ”ten-twenty-life— use a firearm and you are done” law. It imposes a sentence enhancement to a prison term for certain severe felony offenses when the offender uses a firearm during the commission of the offense. It enhances prison terms by significantly prolonging them. P.C. §12022.53 adds to a felony incarceration period:
Possession of a Controlled Substance While Armed with a Firearm (California Health and Safety Code section 11370.1);
Personal Use of a Firearm During a Felony (California Penal Code section 12022.5); and
Personal Use of a Firearm (California Penal Code section 12022.53(b)).Los Angeles Criminal Defense Attorney Ninaz Saffari