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The 2nd Amendment to the US Constitution grants US citizens the right to own and possess firearms, or at least that is the interpretation given by the US Supreme Court in its sharply divided 5-4 decision in District of Columbia v. Heller. The ruling applied to federal laws and did not address state and local laws that regulate firearm possession.
In California, as in all other states, convicted felons are not permitted to own or possess firearms. This prohibition includes persons convicted of certain misdemeanor offenses and those deemed to be narcotic addicts. 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:
- Convicted of a felony in California or any other state
- Or of a federal crime or a similar state offense for which a felony punishment is imposed
- Or you were sentenced to a federal correctional facility for 30 days and/or received a fine of at least $1.000
Drug addicts are those individuals who have a physical or psychological dependence on a drug and can tolerate substantial dosages.
Certain misdemeanor convictions will also make it illegal for you to possess a firearm under PC 29805 within 10 years of your conviction. These include:
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 you.
Knowledge of Being in Possession
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 firearm 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 launcher. 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.
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Lack of Knowledge
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.
Lack of Possession
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 it. 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 danger of great bodily harm and,
- A firearm became available to you without a preconceived plan and,
- You used or possessed the firearm just long enough to defend yourself or other person, 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 firearm. 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 29820. 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
Similarly, for those who were subject to a TRO but were found in unlawful possession of a firearm, they are in violation of PC 29825, which is also a wobbler offense. Sentencing is similar to that under PC 29820, above, for either a misdemeanor or 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.