§ 29825 PC – Possession of a Firearm in Violation of a Court Order

Penal Code § 29825 PC is the California statute that makes it a crime for a person to own, purchase, or possess a firearm when there is a court order prohibiting that person from doing so. A person commits this offense even if the gun involved does not work. A violation of this section can lead to felony charges and time in jail or prison.

The language of the code section states as follows:

29825. (a) A person who purchases or receives, or attempts to purchase or receive, a firearm knowing that the person is prohibited from doing so in any jurisdiction by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, or by a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a temporary restraining order, injunction, or protective order specified in this subdivision, that includes a prohibition from owning or possessing a firearm, is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

(b) A person who owns or possesses a firearm knowing that the person is prohibited from doing so in any jurisdiction by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, or by a valid order issued by an out-of-state jurisdiction that is similar or equivalent to a temporary restraining order, injunction, or protective order specified in this subdivision, that includes a prohibition from owning or possessing a firearm, is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

(c) If probation is granted upon conviction of a violation of this section, the court shall impose probation consistent with Section 1203.097.

(d) The Judicial Council shall provide notice on all protective orders issued within the state that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect. The order shall also state that a firearm owned or possessed by the person shall be relinquished to the local law enforcement agency for that jurisdiction, sold to a licensed firearms dealer, or transferred to a licensed firearms dealer pursuant to Section 29830 for the duration of the period that the protective order is in effect, and that proof of surrender or sale shall be filed within a specified time of receipt of the order. The order shall state the penalties for a violation of the prohibition. The order shall also state on its face the expiration date for relinquishment.

The court orders subject to 29825 PC include protective orders (also referred to as “restraining orders”), injunctions, and temporary restraining orders (“TROs”). These are sometimes issued in cases involving domestic violence and are meant to prevent a person from harassing, stalking, or abusing another party.

Examples

• buying a rifle when the person is named in a restraining order.
• carrying a handgun when the party is the subject of a TRO.
• failing to give up a gun after the person gets named in a legal injunction.

Defenses

A defendant can raise a legal defense to dispute a charge under this statute. Some defenses include:

• the accused did not know of the court order,
• the defendant did not know that he had a “firearm,” and
• the defendant only possessed a gun for a moment.

Penalties

A violation of Penal Code 29825 is a wobbler. This means a prosecutor can charge it as either a misdemeanor or a felony.

A misdemeanor conviction is punishable by custody in county jail for up to one year.

A felony conviction is punishable by imprisonment in jail or California state prison for up to three years.

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

• 1. When is it a crime to have a gun after a court order?
• 2. Are there legal defenses to 29825 PC?
  • 2.1. No knowledge of the order
  • 2.2. No knowledge of a “gun”
  • 2.3. Momentary possession
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. How does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Violating a restraining order – PC 273.6
  • 7.2. Felon in possession of a firearm – PC 29800
  • 7.3. Firearm possession after a misdemeanor conviction – PC 29805

1. When is it a crime to have a gun after a court order?

A prosecutor must prove the following to convict a person under this California law:

1. the defendant owned, purchased, received, or was in possession of a firearm,
2. the defendant knew that he/she owned, purchased, received, or had firearm possession,
3. a court had ordered that the defendant not own, purchase, receive, or have possession of firearms, and
4. the defendant knew of the court’s order.¹

The State of California says that a “firearm” is:

• any device designed to be used as a weapon, and
• from which a projectile is expelled through a barrel by the force of an explosion.²

It is not necessary under PC 29825 that the deadly weapon be a loaded firearm.

Note that a person will violate this law even if the gun that he/she had was not working. All that is required is that the object was designed to shoot and appeared to be capable of shooting.³

As to the third element above, the following court orders are subject to this law:

1. protective orders (such as a domestic violence restraining order which under California’s Code of Civil Procedure prevents a person from harassing another),
2. TROs, and
3. injunctions.⁴

This law is one of several California laws that prevent certain people from owning, possessing and purchasing a gun. Examples of other persons that lose their gun rights include:

• persons convicted of domestic violence (this is true under both California law and the federal laws of the United States),
• persons addicted to the use of any narcotic drug, and
• parties convicted of a felony offense.

2. Are there defenses to 29825 PC?

Defense lawyers can draw upon certain legal strategies to say that law enforcement officials wrongly arrested a person under these laws. These include showing that:

1. the accused did not know of the court order.
2. the accused did not know that he/she had a gun.
3. the defendant possessed the firearm for only a moment.

2.1. No knowledge of the order

Recall that a person is only guilty under PC 29825 if the defendant actually knew that he/she had been named in a restraining order. This means it is always a defense for an accused to say that he/she did not have this knowledge.

2.2. No knowledge of a gun

Recall too that a party is only guilty under this statute if:

1. he/she owned, possessed, purchased, or received a gun, and
2. he/she actually knew that the object was in fact a firearm.

A defense, then, is for the defendant to say that he/she did not have this knowledge. For example, maybe he/she had a cane gun and just thought it was a cane.

2.3. Momentary possession

“Momentary possession” is always a defense to these charges. To use it, the defendant must show that he/she:

1. possessed the firearm only for a momentary period,
2. possessed the firearm in order to dispose of it, and
3. did not intend to prevent a law enforcement agency or police officers from seizing it.⁵

3. What are the penalties?

A violation of this statute is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony.

A misdemeanor is punished by:

• imprisonment for up to one year in county jail, and/or
• a maximum fine of one thousand dollars.⁶

A felony conviction is punishable by:

• custody in jail or state prison for up to three years, and/or
• a maximum fine of one thousand dollars.⁷

4. Are there immigration consequences?

A conviction under these laws may have negative immigration consequences.

California law says that aggravated felonies can result in a non-citizen defendant being either:

• deported, or
• marked as inadmissible.

This means a defendant will experience harsh immigration results if:

1. convicted of a felony under this statute, and
2. the facts show that the felony was “aggravated.”

5. Can a person get a conviction expunged?

A person can get a conviction expunged if:

1. the conviction was for a misdemeanor, and
2. the defendant successfully completed either a jail term or probation.

A person, though, cannot get a felony conviction expunged. Expungements are not allowed for crimes that lead to prison terms.

6. How does a conviction affect gun rights?

Defendants in these cases will have already lost their gun rights via the restraining order.

Misdemeanants may get them back, though, after:

• completing their sentence, and
• complying with the court order.

Felons cannot get them back, however, since convicted felons lose all gun rights.

7. Are there related offenses?

There are three crimes related to the illegal possession of a gun under PC 29825. These are:

1. violating a restraining order – PC 273.6,
2. felon in possession of a firearm – PC 29800, and
3. firearm possession after a misdemeanor conviction – PC 29805.

7.1. Violating a restraining order – PC 273.6

Penal Code 273.6 PC is the California statute making it a crime for a person to violate the terms of a:

• restraining order,
• protective order, or
• stay-away order.

Note that if a person is subject to one of these orders and has a gun, then he/she can be charged with both a violation of:

• PC 273.6, and
• PC 29825.

7.2. Felon in possession of a firearm – PC 29800

Penal Code 29800 PC is the statute that makes it a felony for a convicted felon (or a person with an outstanding warrant for a felony) to:

• own,
• purchase, or
• possess a firearm.

This means that if a person is convicted of a felony under Penal Code 29825, he/she will permanently lose his/her gun rights.

7.3. Firearm possession after a misdemeanor conviction – PC 29805

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 certain misdemeanor offenses.

Note that a misdemeanor conviction of PC 29825 will not result in a person losing his/her gun rights under this law.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

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