Penal Code 29800 PC – Felon in Possession of a Firearm – California Law

Penal Code 29800 PC prohibits convicted felons (or persons with outstanding felony warrants) from owning, purchasing, or possessing firearms in the state of California. The crime is commonly referred to as felon with a firearm or felon in possession of a firearm. A conviction is a felony punishable by up to 3 years in jail or prison.

29800 PC states that “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 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.”

Examples

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

Defenses

A person accused of felon with a firearm can assert a legal defense. 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 lieu of jail time.

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

• 1. What are the elements of felon in possession of a firearm?
  • 1.1. Felons with a firearm
  • 1.2. Addicted narcotics with a firearm
  • 1.3. Specific prior firearm convictions
  • 1.4. “Firearm”
  • 1.5. “Possession”
• 2. Are there legal defenses?
  • 2.1. Momentary possession
  • 2.2. Justifiable possession
  • 2.3. Illegal search and seizure
• 3. What are the penalties for a 29800 PC conviction?
• 4. Does felon in possession of a firearm lead to deportation?
• 5. How can a person restore the right to own or possess a gun?
  • 5.1. Expungement
  • 5.2. Reduction in charges
  • 5.3. Certificate of Rehabilitation / Governor’s pardon
• 6. Are there federal restrictions on gun rights?
• 7. Are there related offenses?
  • 7.1. Gang sentencing enhancements – PC 186.22
  • 7.2. 10-20-life law – PC 12022.53
  • 7.3. Firearm possession after conviction for misdemeanor domestic battery – PC 29805

1. What are the elements of felon in possession of a firearm?

PC 29800 prohibits three groups of people from possessing firearms. These are people:

1. who have been convicted of a felony offense anywhere (or who have an outstanding warrant for a felony),
2. who are addicted to any narcotic drug¹
3. who 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. the accused falls into one of the above categories,
2. he owned, purchased, received, or possessed a firearm, and
3. the defendant 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.”

1.1. 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.

A person is also a “felon,” in some situations, if he has been convicted under a federal law.³

1.2. Addicted narcotics with a firearm

Persons addicted to any controlled substance are prohibited from having gun rights under these laws.

“Addiction” requires that a person be both:

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

The addict must also have an increased tolerance to its effects.⁴

1.3. Specific prior firearm convictions

Penal Code 29800 prohibits a person from owning/possessing a gun if he has 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

1.4. “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.

1.5. “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 a person has direct, physical control of a firearm. For example, he has it is on his person or in a backpack.⁹

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

2. Are there legal defenses?

A defendant can contest a firearm charge under this statute with a good legal defense.

Three common defenses are to show that:

1. the defendant only possessed a gun for a moment to get rid of it,
2. the accused had a firearm because he took it from someone committing a crime, and/or
3. the police found the defendant’s firearm due to an unlawful search and seizure.

2.1. Momentary possession

This defense admits that the accused had a gun. But it says that he only had it for a moment in order to get rid of it.

The defendant must prove the following for the defense to work:

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

2.2. Justifiable possession

Again, this defense admits that the defendant had a firearm. But he says that he had it for a justifiable reason. The reason being he took it from someone committing a crime.

An accused must prove the following for the defense to work:

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

2.3. Illegal search and seizure

Authorities often charge this crime after finding a gun via a search of someone or a seizure of property.

But police can only search a person, or seize property, by means of a lawful search warrant. Or, if no warrant, the search must fall under one of the exceptions to the warrant requirement.

If police obtained a firearm from an unlawful search or seizure, the defense can bring a motion to suppress evidence. If granted, it will most likely lead to the case being dismissed.

3. What are the penalties for a 29800 PC conviction?

People who allegedly violate this criminal law face felony charges.

The crime is punishable by:

• custody in county jail for up to three years, and/or
• a maximum fine of $10,000.¹³

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

4. Does felon in possession of a firearm lead to 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. How can a person restore the right to own or possess a gun?

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

A person can try to restore gun rights by way of:

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

5.1. 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 a defendant completes his:

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

Expungements, though, are not allowed if a defendant was convicted of:

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

5.2. Reduction in charges

A defendant 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
• the criminal history of the defendant.

If a defendant was convicted of a felony wobbler, his or her attorney can petition the court to reduce it to a misdemeanor.

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

5.3. Certificate of Rehabilitation / Governor’s pardon

Some people in California can 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 a convict is 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 a person’s gun rights.

6. Are there federal law restrictions on gun rights?

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

• people under indictment for a crime punishable by more than one year in prison,
• those dishonorably discharged from the military,
• illegal aliens,
• people who have renounced their US citizenship,
• anyone under a court order for a crime involving stalking, and
• fugitives from justice.¹⁷

7. Are there offenses?

There are three crimes related to a felon with a gun. These are:

1. gang sentencing enhancements – PC 186.22,
2. 10-20-life law – PC 12022.53, and
3. firearm possession after conviction for certain misdemeanors – PC 29805.

7.1. 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 a person commits a crime for the benefit of a gang.

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

7.2. 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,
• the perpetrator uses 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.

7.3. Firearm possession after conviction for misdemeanor domestic battery – PC 29805

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

1. he committed a specific misdemeanor, and
2. he 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.

For additional help…

For information on similar state laws in Nevada and Colorado, please see our law firm’s articles on:

• “NRS 202.360 – Nevada Ex-Felon in Possession of the Firearm Laws,” and
• “Possession of a weapon by a previous offender (POWPO).”

Legal References: