Penal Code 29805 PC – Firearm Possession After Misdemeanor Convictions

Penal Code 29805 PC is the California statute that makes it a crime to own or possess a firearm, if the person was convicted of (or with an outstanding warrant for) certain misdemeanor offenses. This is provided that the ownership or possession comes within 10 years from the date of the conviction or warrant.

29805 PC states that “any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation…and who, within 10 years of the conviction, or if the individual has an outstanding warrant, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense…”

Some of the misdemeanors covered under this statute include:

Examples

  • trying to buy a rifle after an assault conviction that took place 5 years ago.
  • carrying a handgun after a battery conviction.
  • having an automatic weapon in a garage after committing a domestic violence crime.

Defenses

A defendant can use a legal defense to contest a charge under this statute. Common defenses include:

Penalties

A violation of this law is a wobbler offense. This means that it can be charged as either:

If a misdemeanor, the crime is punishable by custody in county jail for up to one year.

If a felony, the offense is punishable by imprisonment in state prison for up to three years.

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

man holding a revolver
Penal Code 29805 PC is the statute that makes it a crime for persons convicted of certain misdemeanors to own or possess a gun.

1. What is a crime under Penal Code 29805 PC?

PC 29805 imposes a 10-year ban on owning/possessing a gun after certain misdemeanor convictions.

A prosecutor must prove the following to convict a person of a crime under this statute:

  1. the accused committed a specific misdemeanor listed under the statute, or
  2. the accused had an outstanding warrant for a listed misdemeanor, and
  3. the defendant owned, purchased, received, or possessed a firearm, and
  4. the defendant did so within 10 years from the date of the conviction/warrant.1

Questions often arise under this statute on the meaning of:

  1. what misdemeanors are subject to the law,
  2. “firearm,” and
  3. “possession.”

1.1. Misdemeanors subject to the law

Penal code 29805 does not apply to every misdemeanor conviction. The law only imposes a 10-year ban on firearm possession for certain misdemeanor convictions.

The misdemeanors subject to this law are specifically listed within the statute. Some of the main ones are:

1.2. “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.3

"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.4

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 this offense. Either one will result in a conviction under this statute.

1.3. “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.5

Actual possession” means that a person has direct, physical control of a firearm. For example, a person has an object on his/her body or in a backpack.6

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.7

2. Are there defenses to the charge?

A defendant can potentially beat a 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/she 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. the accused possessed a firearm only for a moment,
  2. the accused possessed the firearm in order to dispose of it, and
  3. the defendant did not prevent the police from seizing the gun.8

2.2. Justifiable possession

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

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

  1. he/she took the firearm from a person who was committing a crime against him/her,
  2. he/she 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/she gave them prior notice.9

2.3. Illegal search and seizure

Police can only search a person, or seize property, by means of a lawful warrant. Or, if no warrant, they must have a lawful reason for not having one.

If cops obtained a firearm from an unlawful search or seizure, it can be excluded from the case. This may lead to a charge being reduced or dismissed.

man behind bars
A violation of this law can result in a prison sentence

3. What are the penalties?

A violation of this statute is a wobbler offense. This means that a prosecutor can charge it as either:

  • a misdemeanor, or
  • a felony.

If a misdemeanor, the crime is punishable by custody in county jail for up to one year.10

If a felony, the offense is punishable by imprisonment in state prison for up to three years.11

4. Are there immigration consequences?

A conviction under this statute will not likely have negative immigration consequences.

California law says that some criminal convictions can result in deportation.12

For example, a conviction of an aggravated felony may produce this result.

But at least one California court has said that a PC 29805 conviction will not adversely affect a person's immigration status.13

5. Can a person get a conviction expunged?

A person can get a conviction of these laws expunged if the crime is charged as a misdemeanor.

California law says that a felony conviction leading to a prison term cannot get expunged.

However, an expungement is available for misdemeanor convictions.

This is provided that the defendant successfully completes:

  • a jail term, or
  • probation (whichever was imposed).

6. Are there related offenses?

There are three crimes related to the possession of a gun after a misdemeanor. These are:

  1. felon in possession of a firearm – PC 29800,
  2. possession of a firearm by a juvenile ward prior to age 30 – PC 29820, and
  3. possession of a firearm by a felon convicted of a violent crime – PC 29900.

6.1. Felon in possession of a firearm – PC 29800

Penal Code 29800 PC is the California statute that makes it a felony for a:

  • convicted felon (or a person with an outstanding felony warrant),
  • to own, purchase, or possess a firearm.

The crime is commonly referred to as "felon with a firearm.”

6.2. Possession of a firearm by a juvenile ward prior to age 30 – PC 29820

Penal Code 29820 PC relates to juvenile offenders.

The law makes it a crime for:

  1. a person to possess a firearm before the age of 30, and
  2. to do so when that person committed a “serious juvenile offense.”

“Serious juvenile offenses” are listed under Welfare and Institutional Code 707b.

6.3. Possession of a firearm by a felon convicted of a violent crime – PC 29900

Penal Code 29900 PC makes it a crime for:

  1. a person to possess a firearm, and
  2. to do so when that person committed a “violent crime.”

“Violent crimes” are listed under Penal Code 29905 PC.

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Legal References:

  1. California Penal Code 29805 PC.

  2. See same.

  3. CALCRIM No. 2510 - Possession of Firearm. Judicial Council of California Criminal Jury Instructions (2017 edition).

  4. People v. Norton (1978) 80 Cal.App.3d Supp. 14.

  5. CALCRIM No. 2510.

  6. See same.

  7. See same. See also People v. Showers (1968) 68 Cal.2d 639.

  8. CALCRIM No. 2510.

  9. See same.

  10. California Penal Code 29805 PC.

  11. California Penal Code 1170h PC.

  12. 8 USC 1227 - Deportable aliens.

  13. United States v. Aguilera-Rios (9th Cir. Cal. 2014), 754 F.3d 1105.

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