California Penal Code § 29800(a)(1) prohibits convicted felons or persons with active felony warrants from owning, purchasing, or possessing firearms in California. This restriction also applies if you are a narcotics addict or you have 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.
The entire language of the code section reads as follows:
29800. (a)(1) 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.
(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(3) Any person who has an outstanding warrant for any offense listed in this subdivision and who has knowledge of the outstanding warrant, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
(c) Subdivision (a) shall not apply to a conviction or warrant for a felony under the laws of the United States unless either of the following criteria, as applicable, is satisfied:
(1) Conviction of a like offense under California law can only result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
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
If you are accused of being a felon with a firearm, you 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. Is it a crime for a felon to be in possession of a firearm?
- 2. Are there legal defenses?
- 3. What are the penalties for a 29800(a)(1) PC conviction?
- 4. Does a felon with a firearm conviction lead to deportation?
- 5. How can I restore the right to own or possess a gun?
- 6. Are there federal restrictions on gun rights?
- 7. Are there related offenses?
Under Penal Code 29800, it is a crime to own a gun if you are a convicted felon.
1. Is it a crime for a felon to be in possession of a firearm?
Yes. PC 29800 prohibits you from possessing firearms if you either:
- have been convicted of a felony offense anywhere (or have an outstanding warrant for a felony),
- are addicted to any narcotic drug, or1
- 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:
- you fall into one of the above categories,
- you owned, purchased, received, or possessed a firearm, and
- you knew of the presence of the gun.2
Questions often arise under this statute on the meaning of:
- each of the categories prohibited from possessing a firearm,
- “firearm,” and
- “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.
You are also a “felon” in some situations if you have been convicted under federal law.3
1.2. 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
1.3. 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:
- two or more convictions for brandishing a weapon, per Penal Code 417, subsection (2)(a), and
- 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:
- it is a device designed to be used as a weapon,
- a projectile expels through the device’s barrel, and
- 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:
- actual possession, and
- 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
Fortunately, there are legal defenses for unlawful possession of a firearm.
2. Are there legal defenses?
There are several legal defenses available if you are charged with being a felon in possession of a firearm.
Three common defenses are to show that:
- you only possessed a gun for a moment to get rid of it,
- you had a firearm because you took it from someone committing a crime, and/or
- the police found your firearm due to an unlawful search and seizure.
2.1. Momentary possession
This defense admits that you had a gun. Though it says that you only had it for a moment in order to get rid of it.
You must prove the following for the defense to work:
- you possessed a gun only for a momentary or a transitory period,
- you possessed the gun in order to dispose of it, and
- you did not intend to prevent law enforcement officials from seizing the gun.11
2.2. Justifiable possession
Again, this defense admits that you had a firearm. Though you say that you had it for a justifiable reason. The reason being you took it from someone committing a crime.
You must prove the following for the defense to work:
- you took the firearm from a person who was committing a crime against you,
- you possessed the gun no longer than was necessary to deliver it to the police, and
- if you were transporting the firearm to the police, you gave prior notice that you 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 you, or seize your 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, you 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(a)(1) PC conviction?
If you allegedly violate this criminal law, you 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 a felon with a firearm conviction 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 I restore the right to own or possess a gun?
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
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 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.
5.2. 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.
5.3. 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. Are there federal law restrictions on gun rights?
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. Are there offenses?
There are four crimes related to a felon with a gun. These are:
- gang sentencing enhancements – PC 186.22,
- 10-20-life law – PC 12022.53, and
- firearm possession after conviction for certain misdemeanors – PC 29805, and
- possession of ammunition by a person prohibited – PC 30305(a)(1)
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 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.
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,
- 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.
7.3. Firearm possession after conviction for misdemeanor domestic battery – PC 29805
Penal Code 29805 PC prohibits you from owning or possessing a gun if:
- you committed a specific misdemeanor, and
- 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.)
7.4. 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.”
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.
For additional help…
Call our criminal defense lawyers for a consultation.
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).”
Also, see our related page on Can a felon own a gun in California?
Legal References:
- California Penal Code 29800 PC. See also People v.Snyder (1982) 32 Cal. Supreme Court 3d 590.
- See same. See also People v. Padilla (2002) 98 Cal.App.4th 127.
- Penal Code 29800 PC. See also Penal Code 29825 PC, making it a crime to possess a firearm by a person subject to a court order prohibiting such possession.
- People v. O’Neil (1965) 62 Cal.2d 748.
- California PC 29800.
- CALCRIM No. 2510 – Possession of Firearm. Judicial Council of California Criminal Jury Instructions (2017 edition).
- People v. Norton (1978) 80 Cal.App.3d Supp. 14.
- CALCRIM No. 2510.
- See same.
- See same.
- CALCRIM No. 2510.
- See same.
- California PC 29800.
- 8 USC 1227 — Deportable aliens.
- California PC 29800(a)(1).
- See California PC 4852.01-4852.21.
- 18 USC 922(g).