§ 29825 PC – Poseer un arma de fuego en violación de una orden judicial

Penal Code § 29825 PC makes it a crime to possess , purchase , or have a firearm when there is a court order prohibiting you from doing so. This crime can be charged as a misdemeanor or a felony and carries up to 3 years in jail.

The language of the code section states the following:

29825 . (a) A person who purchases or receives, or attempts to purchase or receive, a firearm knowing that he or she is prohibited from doing so in any jurisdiction by a temporary restraining order or court order 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, court order, or protective order specified in this subdivision, that includes a prohibition on possessing or possessing a firearm, is guilty of a public offense, punishable by imprisonment in a county jail not to exceed one year or in a state prison, with a fine not to exceed one thousand dollars. ($1,000), or both imprisonment and a fine.

(b) A person who possesses or has a firearm knowing that he or she is prohibited from doing so in any jurisdiction by a temporary restraining order or court order 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, court order, or protective order specified in this subdivision, that includes a prohibition on possessing or having a firearm, is guilty of a public offense, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both. of imprisonment and fine.

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

(d) The Judicial Council shall provide notice in all protective orders issued within the state that the respondent is prohibited from 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 surrendered to the local law enforcement agency of that jurisdiction, sold to a licensed firearms dealer, or transferred to a licensed firearms dealer pursuant to Section 29830 during the period the protective order is in effect, and that proof of surrender or sale shall be provided within a specified time after receipt of the order. The order shall state the penalties for violating the prohibition. The order shall also state on its face the due date for surrender.

Court orders subject to PC 29825 include protective orders (also known as “restraining orders”), injunctions, and temporary restraining orders (TROs) . These are sometimes issued in domestic violence cases and are intended to prevent one person from harassing, stalking , or abusing another party.

Examples

• purchasing a rifle when the person is named in a restraining order.
• carrying a gun when the party is the subject of a TRO.
• not surrendering a weapon after the person is named in a court order.

Defenses

A defendant may raise a legal defense to challenge a charge under this law. Some defenses include:

• the accused was not aware of the court order,
• the defendant did not know he had a “firearm” and
• The defendant only possessed a weapon for a moment.

Sanctions

A violation of Penal Code 29825 is a hybrid offense . This means that a prosecutor can charge it as a misdemeanor or a felony .

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

A felony conviction is punishable by imprisonment in California jail or 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. Without knowledge of the order
  • 2.2. Without knowledge of a “weapon”
  • 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 ownership rights?
• 7. Are there any related crimes?
  • 7.1. Violation of a Restraining Order – PC 273.6
  • 7.2. Offender in Possession of a Firearm – PC 29800
  • 7.3. Possession of Firearms 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 owned, purchased, received, or was in possession of a firearm,
3. A court had ordered the defendant not to own, purchase, receive or possess 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 be in violation of this law even if the gun he or she had was inoperative . All that is required is that the object was designed to fire and appeared to be capable of firing ^.

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

1. protective orders (such as a domestic violence restraining order , which under the California Code of Civil Procedure prevents one person from harassing another person),
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 people who lose their gun rights include:

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

2. Are there any defenses for PC 29825?

Defense attorneys can use certain legal strategies to argue that law enforcement wrongfully arrested a person under these laws. These include showing that:

1. the accused was not aware of the court order.
2. the defendant did not know he had a gun.
3. The defendant possessed the weapon for only a moment.

2.1. Lack of knowledge of the order

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

2.2. Lack of knowledge of a weapon

Remember also that a party is only guilty under this law if:

1. owned, had, purchased or received a weapon, and
2. the defendant actually knew that the object was actually a weapon.

One defense, then, is that the defendant did not have this knowledge. For example, perhaps he had a baton gun and simply thought it was a baton.

2.3. Momentary possession

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

1. He possessed the weapon only for a momentary period ,
2. He possessed the weapon in order to get rid of it , and
3. was not intended to prevent a law enforcement agency or police officers from confiscating it. ⁵

3. What are the penalties?

A violation of this law is a hybrid offense . This means that a prosecutor can charge you with either a misdemeanor or a felony. A misdemeanor
conviction is punishable by:

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

4. Are there any immigration consequences?

A conviction under these laws can have negative immigration consequences.

California law says that serious crimes can result in a noncitizen defendant being:

• deported, or
• marked as inadmissible.

This means that a defendant will experience severe immigration consequences if:

1. is convicted of a felony under this law, and
2. the facts show that the crime 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 a prison sentence or probation .

However, a person cannot have a felony conviction expunged. Expungements are not allowed for crimes that result in prison sentences .

6. How does a conviction affect gun ownership rights?

The defendants in these cases will have already lost their gun rights through the restraining order.

Petty offenders can recover them after:

• complete his sentence, and
• comply with the court order.

However, criminals cannot get them back, as convicted felons lose all gun rights .

7. Are there any related crimes?

There are three offenses related to illegal possession of a weapon under PC 29825. These are:

1. violating a restraining order – PC 273.6,
2. Felon in Possession of a Firearm – PC 29800, and
3. Possession of a Firearm After a Misdemeanor Conviction – PC 29805.

7.1. Violation of a Restraining Order – PC 273.6

Penal Code 273.6 PC is the California law that makes it a crime for a person to violate the terms of a:

• restraining order,
• protective order, or
• restraining order.

Please note that if a person is subject to one of these orders and has a weapon, they can be charged with violating both:

• PC 273.6, and
• PC 29825.

7.2. Offender in Possession of a Firearm – PC 29800

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

• possess,
• buy, or
• possess a firearm.

This means that if a person is convicted of a felony under Penal Code 29825, they will permanently lose their gun rights.

7.3. Possession of a Firearm After a Misdemeanor Conviction – PC 29805

Penal Code 29805 PC is the California law that makes it a crime to own or possess a firearm, if the person has been convicted of certain misdemeanors.

Please note that a misdemeanor conviction for PC 29825 will not result in a person losing his or 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 the Shouse Law Group.

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