Introduction

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 Code section 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.

The Legal Meaning of "Felon in Possession of Gun/Ammo”

California's Penal Code section 29800 criminalizes three categories of people possessing guns. These are people whom:

  • A court has found guilty of committing a felony anywhere or, alternatively, people with an outstanding arrest warrant for a felony. Thus, a convicted felon is forbidden from possessing or owning a firearm in California State. The term "felon"' refers to anybody sentenced for a felony crime, including in another state or country/government. In certain situations, a person can also be considered a felon if found guilty under a federal statute;
  • Have been sentenced for violent firearm offenses. P.C § 29800 forbids you from possessing/owning a firearm if you have certain priors involving a gun. These specific priors include a conviction for the Violent Use of a Gun, per California Penal Code section 23515, and more than one conviction for Brandishing a Gun as described under California Penal Code section 417(a)(2); and
  • Are drug addicts. A person addicted to a controlled substance is stripped of their firearm rights under P.C § 29800. Addiction necessitates that someone physically and emotionally depends on the controlled substance. The person must additionally have a high tolerance to the drug's effects.

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:

  • You fall under any of the categories mentioned above;
  • You purchased, possessed, received, or owned a firearm:
  • You were aware of the gun's presence.

This law defines a firearm/gun as:

  1. A device made to be utilized as a weapon;
  2. From which a projectile is expelled;
  3. Via a barrel; and
  4. By the combustion or explosion force.

Examples of guns include revolvers, rifles, pistols, tasers, and shotguns. BB guns and pellet guns are not classified as guns under this law.

Remember that whether a gun is unloaded or not does not matter. Either of these facts will lead to prosecution and conviction under P.C. § 29800.

And lastly, California law describes possession as having control of something. Possession in under California law falls under two categories: constructive and actual possession. If you have actual possession of a gun, it means you have physical and direct control over it.

For example, you have it on you person or in your vehicle. And if you have constructive possession of a firearm, it means you can control or have access to it; for example, you keep a gun in your dresser drawer at home or in your garage.

See also “Carrying Firearm: Not in Lawful Possession -- Pen. Code §§ 25400(c)(4), 25850(c)(4)”: CALCRIM Number 2543.

Penalties for Violating P.C. § 29800

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. 

Restoring Your Firearm Rights

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:

Conviction Record Expungement (Penal Code section 1203.4)

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.

Requesting a Charge Reduction (California Penal Code section 17(b))

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.

Governor's Pardon/Certificate of Rehabilitation

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.

Defending Against P.C. § 29800 Violation Charges

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:

The Police Discovered the Gun after Conducting an Illegal Search and Seizure

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 Code section 995); and

Motion to Suppress Evidence (California Penal Code section 1538.5: California Penal Code section 1538.5).

You Only Had the Firearm for a Short Period to Dispose of It

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:

  • You possessed the firearm just for a transitory or momentary period;
  • You had the firearm to dispose of it; and
  • You did not intend to prevent the police from confiscating the firearm.

It Was a Justified Possession

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:

  • You took the gun from someone committing a criminal offense against you;
  • You had the firearm, but not for a longer period than was required to give it to law enforcement; and
  • If you were transporting the gun to the authorities, you notified them beforehand that you would be bringing the firearm.

Self-Defense or Defense of Someone Else

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 reasonably believed you or another were in immediate danger of significant bodily injury;
  • A gun became available to you without a preconceived plan;
  • You possessed or used the gun just for a long enough period to defend yourself or another; and
  • There was no other way at the time to prevent the danger you were in or defend yourself/another.

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.

You Were Unaware of the Gun's Presence

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.

You Did Not Possess the Firearm

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.

False Accusations

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 (California Penal Code section 30305(a)(1))

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:

  • Persons found guilty of particular misdemeanors, such as Corporal Injury to Spouse, Cohabitant, or Fellow Parent (California Penal Code section 273.5), as described under P.C § 273.5 and other domestic violence-related offenses;
  • Persons under 18 years (however, this category can own/possess a BB gun with parental consent); and
  • Persons who have a mental illness.

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:

  • You possessed, owned, or had in your custody ammunition;
  • You knew you had custody of, possessed, or owned the ammunition;
  • You were prohibited from possessing or owning the ammunition due to a mental illness or past criminal conviction.

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:

  • The police conducted an illegal search and seizure;
  • You had a justifiable reason to possess the ammunition; and
  • You were not aware you had the ammunition.

Other Related Offenses to a P.C. § 29800 Violation

There are three other offenses related to a P.C. § 29800 violation. They are:

Gang Sentencing Enhancement (California Penal Code 186.22)

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.

Gun Possession after Conviction for Certain Misdemeanors (California Penal Code section 29805)

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.

10-20-Life “Use A Firearm and You Are Done'' Law (California Penal Code section 12022.53)

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:

  • Ten years of a prison term for using a firearm;
  • Twenty years of a prison sentence for discharging a firearm; and
  • Twenty-five years to life imprisonment for severely injuring or killing someone else with a firearm.

See also:

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