Penal Code 29810 PC – Relinquishment of Firearms by Convicted Persons

Penal Code 29810 PC is the California law governing the relinquishment of firearms following a conviction for certain crimes. The statute requires persons convicted of a felony, or certain misdemeanors, to relinquish all firearms that they own, possess, or have control over.

Examples of appropriate conduct under PC 29810 are:

• After being convicted of poisoning, a felony per Penal Code 347 PC, Anthony gives the two guns he owns to a local law enforcement agency.
• Following an assault conviction, per Penal Code 240 PC, Jose gives the Probation Department his rifle and ammunition.
• Martel, upon conviction of felony murder, per Senate Bill 1437, contacts his brother and gives him permission to relinquish his firearms to authorities.

Penal Code 29810, as it currently reads, is a result of Proposition 63 (passed in 2016). The law went into effect in January 2018. To date, the relatively new law has raised some interesting constitutional and immigration issues.

Defenses

Luckily, there are several legal defenses that a person can raise if he fails to comply with Penal Code 29810 PC. These include showing that an accused party was not:

• convicted of a crime;
• properly instructed by the court; and/or,
• late in relinquishment because of good cause.

Penalties

A defendant that does not take the appropriate steps, in time, to relinquish his firearm(s) is guilty of an infraction. The offense is punishable by a maximum fine of $100.

Further, if no relinquishment, a defendant may be guilty of the unlawful possession of a firearm, and could be penalized under Penal Code 29800 PC, which prohibits firearm access for certain people.

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

• 1. Are people convicted of crimes required to relinquish their firearms?
• 1.1 Constitutional and Immigration Issues with California Penal Code 29810 PC
• 2. Legal Defenses to PC 29810 Violations
  • 2.1 No Conviction
  • 2.2 Improper Instructions
  • 2.3 Good Cause
• 3. Penalties, Punishment, and Sentencing
• 4. Related Offenses
  • 4.1 Carrying a Concealed Weapon – PC 25400
  • 4.2 Felon with a Firearm Law – PC 29800
  • 4.3 Negligent Discharge of a Firearm – PC 246.3

1. Are people convicted of crimes required to relinquish their firearms?

In some cases, yes. California Penal Code 29810 PC states that if a person is convicted of a felony, or a certain misdemeanor, he must identify and relinquish all firearms that he

1. owns,
2. possesses, or
3. has control over.¹

In addition to stating this general rule, PC 29810 sets forth the procedures that a convicted person must follow to legally relinquish any firearms.

The important items regarding these procedures include:

• Upon conviction of a felony, or a certain misdemeanor, the court must instruct the defendant that he is prohibited from owning, possessing, or having any firearms, ammunition, and magazines.²
• The court must provide the defendant with a Prohibited Persons Relinquishment Form, developed by the Department of Justice.³
• Using this form, the defendant must identify any firearms, ammunition, or magazines that he has; and, he must designate a local law enforcement agency, or a third party, to relinquish them.⁴
• If the defendant designates a law enforcement agency, the agency has to take control over the items identified.
• If the defendant designates a third party, the third party has to either:

1. Relinquish any items identified to local law enforcement;
2. Sell the items to a licensed dealer; or,
3. Store the items with a licensed dealer.⁵

If the defendant is in custody following conviction, he must complete the Prohibited Persons Relinquishment Form and submit it within 14 days.⁶ If he is not in custody, he must complete and submit it within five days.⁷

1.1 Constitutional and Immigration Issues with California Penal Code 29810 PC

Penal Code 29810, as it currently reads, is a result of Proposition 63 (passed in 2016). The law went into effect in January of 2018. To date, the relatively new law has raised some interesting constitutional and immigration issues.

For example, depending on the specific facts of a case, compliance with PC 29810 may raise issues involving a person’s rights under the Fourth Amendment and Fifth Amendment to the U.S. Constitution.

In addition, there are a few immigration issues involving the Prohibited Persons Relinquishment Form. These issues have to deal with the nature of certain questions asked and the information that is requested.

Given these issues, it is critical for a defendant to consult with a skilled criminal defense attorney so that they are fully protected when complying with PC 29810.

2. Legal Defenses

A person accused of not complying with Penal Code 29810 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is essential for an accused to hire an attorney for the best defense.

Three common defenses to accusations of not complying with PC 29810 are:

1. No conviction;
2. Improper instructions; and/or,
3. Good cause.

2.1. No conviction

Penal Code 29810 only applies if a person has been convicted of a felony or a certain misdemeanor. Therefore, an accused does not have to relinquish a firearm if he is never convicted of a crime. Further, he does not have to relinquish a firearm if he is simply charged with a crime. Conviction, beyond a reasonable doubt, is necessary to trigger relinquishment.

2.2. Improper Instructions

Recall that some of the initial steps within the relinquishment process are that the court must:

• Instruct the defendant that he is prohibited from owning, possessing, or having any firearms, ammunition, and magazines; and,
• Provide the defendant with a Prohibited Persons Relinquishment Form.

This means that if the court never provides these instructions, or does not provide a form, then a defendant may have a defense to a charge under PC 29810. The same may hold true if the court provides the same but is not clear in doing so.

2.3. Good Cause

Remember that a defendant has five or 14 days to complete and submit a Prohibited Persons Relinquishment Form, depending on his custodial status. A defendant may complete the form but may fail to complete it on time. If this happens, the accused may ask the court for additional time to complete the form by showing some good cause for a time extension.⁸

3. Penalties, Punishment, and Sentencing

A defendant that does not timely complete and submit a Prohibited Persons Relinquishment Form is guilty of an infraction. The offense is punishable by a maximum fine of $100.⁹

Further, if a defendant fails to relinquish a firearm, then he may be guilty of the unlawful possession of a firearm.¹⁰ If so, he could get penalized under Penal Code 29800 – see Section 4.2 below.

4. Related Offenses

There are three laws related to Penal Code 29810. These are:

1. Carrying a concealed weapon – PC 25400;
2. Felon with a firearm law – PC 29800; and,
3. Negligent discharge of a firearm – PC 246.3.

4.1. Carrying a Concealed Weapon – PC 25400

Penal Code 25400 PC, California’s carrying a concealed weapon law, makes it a crime for a person to carry a concealed firearm on his person or in his vehicle.¹¹

This law applies to both loaded and unloaded firearms.

Further, a person must know that he is concealing a gun to be guilty under PC 25400.¹²

Absent aggravating circumstances, carrying a concealed firearm is a misdemeanor. If convicted of this misdemeanor, a person may be punished with:

• Up to one year in a county jail; and/or,
• A maximum fine of $1,000.¹³

A PC 25400 violation can be charged as a felony if certain aggravating circumstances are present in a case (e.g., the defendant has a prior conviction of a California firearm offense).

4.2. Felon with a Firearm Law – PC 29800

California Penal Code 29800 PC prohibits three groups of people from owning guns or ammunition. These groups are:

1. People who have been convicted of a felony offense,
2. People who have been convicted of certain misdemeanors, and
3. People who are addicted to any narcotic drug.¹⁴

Unlawful possession of a firearm under California Penal Code 29800 PC is a felony. The crime is punishable by:

• Imprisonment in the county jail for 16 months, two years, or three years; and/or
• A maximum fine of $10,000.¹⁵

A person guilty under PC 29800 may also have to forfeit his gun.¹⁶

4.3. Negligent Discharge of a Firearm – PC 246.3

Under California Penal Code 246.3 PC, a person commits the crime of “negligent discharge of a firearm” if he:

1. Willfully discharges a firearm;
2. In a grossly negligent manner; and,
3. The act could have caused someone’s injury or death.¹⁷

It may sound as if the crime of “negligently discharging a firearm” includes accidentally shooting a gun. However, this is not the case. A person commits the crime of PC 246.3 if he willfully—that is, intentionally—pulls the trigger.¹⁸

Negligently firing a gun is what is known as a “wobbler” under California law. A wobbler is an offense that can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, negligent discharge carries a maximum county jail sentence of one year.¹⁹

If charged as a felony, negligent discharge can lead to sixteen months, two years, or three years in county jail.²⁰

For additional help…

If you or someone you know has been accused of a crime per Penal Code 29810, we invite you to contact us for a free consultation.

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