§ 29800(a)(1) PC – Felon in Possession of a Firearm

Penal Code § 29800(a)(1) prohibits convicted felons (or persons with active felony warrants) from owning, purchasing, or possessing firearms. This restriction also applies to narcotics addicts and persons with two or more convictions for certain misdemeanor offenses.

A violation of this section is a felony and is punishable by up to 3 years in jail or prison.

The crime is commonly referred to as

• felon with a firearm, or
• felon in possession of a firearm.

Examples

• trying to buy a rifle when you have a warrant for felony grand theft
• carrying a handgun in a car after being convicted of felony elder abuse
• having a shotgun after being convicted of a felony offense

Defenses

You can assert a legal defense if you are accused of being a felon with a firearm. Common defenses include:

• momentary possession,
• justifiable possession, and/or
• illegal search and seizure.

Penalties

A violation of this law is charged as a felony offense. This is opposed to a California misdemeanor or an infraction.

The crime is punishable by:

• imprisonment in county jail for up to three years, and/or
• a maximum fine of $10,000.

A judge may award felony (or formal) probation in place of jail time.

The key language of the code section reads as follows:

“Any person who has been convicted of 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.”

Our California criminal defense attorneys will explain the following in this article:

• 1. Elements of The Crime
• 2. Defenses
• 3. Sentencing
• 4. Deportation
• 5. Restoring Gun Rights
• 6. Federal Law
• 7. Related Offenses
• Additional Reading

1. Elements of The Crime

Yes. PC 29800 prohibits you from possessing firearms if you either:

1. have been convicted of a felony offense anywhere (or have an outstanding warrant for a felony),
2. are addicted to any narcotic drug, or¹
3. have been convicted of violent firearm crimes (see section 1.3 below)

A prosecutor must prove the following three elements of the crime to make a case for felon in possession of a firearm:

1. you fall into one of the above categories,
2. you owned, purchased, received, or possessed a firearm, and
3. you knew of the presence of the gun.²

Questions often arise under this statute on the meaning of:

1. each of the categories prohibited from possessing a firearm,
2. “firearm,” and
3. “possession.”

Felons with a firearm

Convicted felons are prohibited from owning/possessing a gun in California.

A “felon” is anyone who has been convicted of a felony offense anywhere. This includes:

• in any state, or
• by any other government or country.

You are also a “felon” in some situations if you have been convicted under federal law.³

Addicted narcotics with a firearm

If you are addicted to any controlled substance, you are prohibited from having gun rights under these laws.

“Addiction” requires that you be both:

• emotionally dependent on the narcotic, and
• physically dependent on the drug.

You must also have an increased tolerance to its effects.⁴

Specific prior firearm convictions

Penal Code 29800 prohibits you from owning/possessing a gun if you have certain prior convictions involving a firearm.

These “certain” convictions include:

1. two or more convictions for brandishing a weapon, per Penal Code 417, subsection (2)(a), and
2. a conviction for the violent use of a firearm, per Penal Code 23515 PC.⁵

“Firearm”

An object is a “firearm,” under this statute, if it meets the following requirements:

1. it is a device designed to be used as a weapon,
2. a projectile expels through the device’s barrel, and
3. the projectile gets expelled via force or an explosion.⁶

“Firearms” are sometimes generically referred to as “guns.” Examples of firearms are:

• pistols,
• revolvers,
• rifles (including short-barreled rifles),
• shotguns (including short-barreled shotguns), and
• tasers.⁷

Pellet guns and BB guns do not qualify as firearms under these laws.

Note that it does not matter if a firearm is loaded or unloaded for purposes of these laws. Either one will result in a conviction under this statute.

“Possession”

California law says that “possession” is having control over an item.

There are two types of possession:

1. actual possession, and
2. constructive possession.⁸

“Actual possession” means that you have direct, physical control of a firearm. For example, you have it on your person or in a backpack.⁹

“Constructive possession” means that you have access to a firearm or the right to control it. An example is storing a firearm in a garage or dresser drawer.¹⁰

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with gun crimes, including being a felon in possession of a firearm. In our experience, the following six defenses have proven very effective with judges, juries, and prosecutors.

You possessed a gun only for a moment to get rid of it

Perhaps someone planted the gun on you. Or perhaps you found an old one in your house you had forgotten was there. We have seen prosecutors dismiss PC 29800(a)(1) charges as long as we can show:

1. you possessed the gun only for a momentary or a transitory period,
2. you possessed the gun in order to dispose of it, and
3. you did not intend to prevent law enforcement officials from seizing the gun.¹¹

You had a firearm because you took it from someone committing a crime

Just because you are no longer permitted to possess firearms does not mean you cannot exercise self-defense (or defense of others) when necessary. Under California law, it is justifiable to temporarily possess a gun when:

1. you took the firearm from a person who was committing a crime against you (or someone else),
2. you possessed the gun no longer than was necessary to deliver it to the police, and
3. if you were transporting the firearm to the police, you gave prior notice that you would be delivering the gun.¹²

The key to this defense is full transparency since the truth is your best defense. Often we can find eyewitnesses and surveillance video to corroborate your account.

The police found your firearm through an illegal search and seizure

We have rarely had a case that did not involve some degree of police misconduct. One of the most common scenarios is when the police conduct a warrantless search without a justifiable reason.

If the police found a gun on your property without a valid search warrant – or without a valid exception to the search warrant requirement – we can ask the judge to suppress that gun as evidence. If granted, it will most likely lead to the case being dismissed.

You were unaware the gun was there

You cannot legally be in possession of a firearm if you are unaware of the gun being there.

Perhaps your housemate brought in a gun without telling you, or perhaps a guest left their gun at your place by accident.

Whatever the case, prosecutors have to prove beyond a reasonable doubt that you were aware of the gun. If we can convince the D.A. that you had no idea the firearm was in the proximity, they should drop the charges.

You were never in possession of a firearm

Just because you are in a room with guns or otherwise near guns does not automatically put you in possession. For example, if you attend a party with people who carry guns or have guns, you are not in possession as long as you do not take physical control of one of them.

In these cases, we would rely on eyewitnesses and any available surveillance video to show that you were never in actual, constructive, or joint possession of any firearm. As long as there is reasonable doubt, the D.A. should dismiss the case.

You were falsely accused

It is common for people to levy false allegations out of anger, jealousy, or a misunderstanding.

If someone wrongfully accuses you of having a firearm, we would comb through their communications (especially text messages and voicemails) for proof of their motivation to lie. In many cases, we have been able to impeach the credibility of accusers with their own words.

Once we can show the prosecutors that the accuser lacks trustworthiness, they may be forced to drop the charge.

3. Sentencing

If you’re convicted of violating Penal Code 29800(a)(1), you will be facing up to 3 years of jail time and fines of up to $10,000.00. A judge may award felony (or formal) probation in lieu of jail time. ¹³

4. Deportation

A conviction under this statute can have negative immigration consequences.

California law says that convictions for firearm offenses can result in deportation.¹⁴

“Convictions for firearm offenses” includes convictions under PC 29800.

5. Restoring Gun Rights

A felony conviction subjects you to a lifetime ban from owning or possessing a gun in California unless your firearms rights are restored.¹⁵

You can try to restore gun rights by way of:

• an expungement
• a reduction in the charge, or
• a Certificate of Rehabilitation / Governor’s pardon

Expungement

An expungement means that a criminal conviction gets set aside.

The act removes many of the hardships that come with a criminal conviction. This includes restrictions on gun rights.

Note that an expungement is usually available provided that you complete your:

• jail term, or
• probation (whichever is applicable).

Expungements, though, are not allowed if you were convicted of:

• a serious sex offense, or
• a crime that resulted in custody in state prison.

Reduction in charges

You may be able to regain gun rights by getting a felony offense reduced to a misdemeanor.

This can sometimes happen, for example, with wobblers.

A wobbler is an offense that a prosecutor can charge as either a misdemeanor or a felony. The decision is made based on:

• the facts of the case, and
• your criminal history.

If you were convicted of a felony wobbler, your attorney can petition the court to reduce it to a misdemeanor.

If a judge grants the petition, you may be able to gain back the right to own/buy a gun.

Certificate of Rehabilitation / Governor’s pardon

You may be able to apply for a Certificate of Rehabilitation. This application is available for certain:

• felony offenses, and
• specified misdemeanor sex offenses.

A Certificate of Rehabilitation is a court order declaring that you are rehabilitated.

If granted, it is forwarded to the Governor by the court. Once received, it becomes an application for a California governor’s pardon.¹⁶

If the pardon is granted, this can restore your gun rights.

6. Federal Law

Federal law places restrictions on certain people from owning a gun. Some include if you:

• are under indictment for a crime punishable by more than one year in prison,
• have been dishonorably discharged from the military,
• are an illegal alien,
• have renounced your US citizenship,
• are under a court order for a crime involving stalking, and
• are a fugitive from justice.¹⁷

7. Related Offenses

Gang sentencing enhancements – PC 186.22

Penal Code 186.22 PC is the California statute that makes it a crime to participate in a street gang.

The law also imposes a sentencing enhancement if you commit a crime for the benefit of a gang.

An enhancement means you serve time in prison that is in addition to any time served for the underlying offense.

10-20-life law – PC 12022.53

Penal Code 12022.53 PC is California’s “10-20-life – use a gun and you’re done” law.

It provides an “enhancement” to a California state prison sentence for:

• certain serious felonies when,
• you use a gun in the commission of the crime.

It “enhances” sentences by making them significantly longer.

Penal Code 12022.53 PC adds to a felony sentence:

• 10 years in prison for “using” a gun,
• 20 years for firing a gun, or
• 25 years to life for killing or seriously injuring another person with a gun.

Firearm possession after conviction for misdemeanor domestic battery – PC 29805

Penal Code 29805 PC prohibits you from owning or possessing a gun if:

1. you committed a specific misdemeanor, and
2. you tried to own or possess the gun within 10 years from the date of the conviction.

The law imposes a 10-year ban on possessing a gun for certain misdemeanor convictions.

Some of these misdemeanors include:

• assault, per Penal Code 240 PC
• battery, per Penal Code 242 PC,
• domestic battery, per Penal Code 243e1 PC,
• criminal threats, per Penal Code 422 PC, and
• stalking, per Penal Code 646.9 PC.

(Note that a misdemeanor conviction on or after January 1, 2019, of Penal Code 273.5  PC- corporal injury to a spouse or cohabitant – carries a lifetime gun ban.)

Possession of ammunition by a person prohibited – PC 30305(a)(1)

Penal Code 30305(a)(1) PC makes it a California crime for you to possess ammunition if you may not possess firearms. Other terms for this offense are “felon in possession of ammunition” and “unlawful possession of ammunition.”

As a wobbler, unlawful possession of ammunition can be a misdemeanor carrying up to one year in jail or a felony carrying up to three years in prison.

Other crimes

• Penal Code 245 PC – assault with a deadly weapon
• Penal Code 417 PC – brandishing a weapon/firearm
• Penal Code 417.6 PC – brandishing a firearm causing injury
• Penal Code 16590 PC – possessing dangerous weapons
• Penal Code 17500 PC – possessing a deadly weapon to assault
• Penal Code 22810 PC – unlawful use of tear gas
• Penal Code 25400 PC – carrying a concealed firearm
• Penal Code 25850 PC – carrying a loaded firearm in public
• Penal Code 30210 PC – bullets containing explosives
• Penal Code 33215 PC – short-barreled rifles
• Penal Code 32310 PC – large-capacity magazines
• Penal Code 30315 PC – armor-piercing bullets

Additional reading

For more in-depth information, refer to these scholarly articles:

• Time To Reload: The Harms Of The Federal Felon-in-possession Ban In A Post-Heller World – Duke Law Journal.
• Problematic Presumptions: Why The Current State of Felon-in-Possession Law Risks Punishing the Innocent – University of Pennsylvania Law Review.
• Notice(ing) Ex-Offenders: A Case Study of the Manifest Injustice of Passively Violating a Felon-in-Possession Statute – Wisconsin Law Review.
• Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. Sec. 922(g)(1) – Penn State Law Review.
• In Defense of Felon-in-Possession Laws – Cardozo Law Review.

Also, see our related page on Can a felon own a gun in California?

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