§ 29800(a)(1) PC – Felon in Possession of a Firearm

California Penal Code § 29800(a)(1) prohibits convicted felons (or persons with active felony warrants) from owning, purchasing, or possessing firearms. This restriction also applies to narcotics addicts and persons with two or more convictions for certain misdemeanor offenses.

Violating PC 29800(a)(1) is a felony 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 following graphic shows people barred from possessing guns under PC 29800 and related statutes.

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

You can assert a defense if you are accused of being a felon with a firearm. Common defenses include:

• momentary possession,
• justifiable possession, and/or
• illegal search and seizure.

Penalties

The following table shows the felony sentence for possessing a firearm as a prohibited person.

PC 29800(a)(1) Punishments in California
Jail	16 months, 2 years, or 3 years
Fines	Up to $10,000
Probation	Formal probation for 3 to 5 years

The key language of PC 29800(a)(1) reads as follows:

“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.”

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

• 1. Elements of the Crime
• 2. Defenses
• 3. Sentencing
• 4. Deportation
• 5. Restoring Gun Rights
• 6. Federal Law
• 7. Related Offenses
• Additional Reading

1. Elements of the Crime

California Criminal Jury Instruction “CALCRIM” 2510 spells out the elements for possessing a firearm by a prohibited person. For you to be convicted of violating PC 29800, prosecutors must prove beyond a reasonable doubt the following three elements:

1. you either:
   • have been convicted of (or have an outstanding warrant for) a felony, or
   • are a drug addict, or
   • have two or more convictions for brandishing a weapon (PC 417(2)(a)), or
   • have been convicted of the violent use of a firearm (PC 23515); and
2. you owned, purchased, received, or possessed a firearm;¹ and
3. you knew of the presence of the gun.²

We discuss these elements below.

“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, including:

• 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

“Addicted to Narcotics with a Firearm”

If you are addicted to any controlled substance, you are prohibited from having gun rights under these laws.⁴ “Addiction” requires that you be both:

• emotionally dependent on the narcotic, and
• physically dependent on the drug.⁵

You must also have an increased tolerance to its effects.

“Firearm”

An object is a “firearm” if:

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.⁶

“Firearms” are generically referred to as “guns.” Examples 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. Either one will result in a conviction under PC 29800.

“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.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

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with gun crimes, including being a felon in possession of a firearm. In our experience, the following six defenses have proven very effective with judges, juries, and prosecutors.

You Possessed the Gun Only for a Moment to Get Rid of it

Perhaps someone planted the gun on you. Or perhaps you found an old one in your house you had forgotten was there. We have seen prosecutors dismiss PC 29800(a)(1) charges as long as we can show:

1. you possessed the gun only for a momentary or a transitory period,
2. you possessed the gun in order to dispose of it, and
3. you did not intend to prevent law enforcement officials from seizing the gun.¹¹

You Had a Firearm Because You Took it from Someone Committing a Crime

Just because you are no longer permitted to possess firearms does not mean you cannot exercise self-defense (or defense of others) when necessary. Under California law, it is justifiable to temporarily possess a gun when:

1. you took the firearm from a person who was committing a crime against you (or someone else),
2. you possessed the gun no longer than was necessary to deliver it to the police, and
3. if you were transporting the firearm to the police, you gave prior notice that you would be delivering the gun.¹²

The key to this defense is full transparency since the truth is your best defense. Often we can find eyewitnesses and surveillance video to corroborate your account.

The Police Found Your Firearm Through an Illegal Search and Seizure

We have rarely had a case that did not involve some degree of police misconduct. One of the most common scenarios is when the police conduct a warrantless search without a justifiable reason.

If the police found a gun on your property without a valid search warrant – or without a valid exception to the search warrant requirement – we can ask the judge to suppress that gun as evidence. If granted, it will most likely lead to the case being dismissed.

You Were Unaware the Gun Was There

You cannot legally be in possession of a firearm if you are unaware of the gun being there.

Perhaps your housemate brought in a gun without telling you, or perhaps a guest left their gun at your place by accident.

Whatever the case, prosecutors have to prove beyond a reasonable doubt that you were aware of the gun. If we can convince the D.A. that you had no idea the firearm was in the proximity, they should drop the charges.

You Were Never in Possession of a Firearm

Just because you are in a room with guns or otherwise near guns does not automatically put you in possession. For example, if you attend a party with people who carry guns or have guns, you are not in possession as long as you do not take physical control of one of them.

In these cases, we would rely on eyewitnesses and any available surveillance video to show that you were never in actual, constructive, or joint possession of any firearm. As long as there is reasonable doubt, the D.A. should dismiss the case.

You Were Falsely Accused

It is common for people to levy false allegations out of anger, jealousy, or a misunderstanding.

If someone wrongfully accuses you of having a firearm, we would comb through their communications (especially text messages and voicemails) for proof of their motivation to lie. In many cases, we have been able to impeach the credibility of accusers with their own words.

Once we can show the prosecutors that the accuser lacks trustworthiness, they may be forced to drop the charge.

3. Sentencing

If you are convicted of violating Penal Code 29800(a)(1), you face up to 3 years of jail and fines of up to $10,000. However, a judge may award felony (or formal) probation in lieu of jail time. ¹³

4. Deportation

California law says that convictions for firearm offenses – which includes PC 29800 convictions – can result in deportation.¹⁴ Non-citizens therefore should contact legal counsel as soon as possible to try to get their charge reduced to a non-deportable offense.

5. Restoring Gun Rights

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

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).

Reduction in Charges

You may be able to regain gun rights by getting a felony offense reduced to a misdemeanor.

This can sometimes happen with wobblers, which are crimes that can be charged as a misdemeanor or a felony. The prosecutor makes this decision 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.

Certificate of Rehabilitation / Governor’s Pardon

You may be able to apply for a Certificate of Rehabilitation, which is a is a court order declaring that you are rehabilitated. This application is available for certain:

• felony offenses, and
• specified misdemeanor sex offenses.

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. Federal Law

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. Related Offenses

• Penal Code 186.22 PC – gang sentence enhancement
• Penal Code 245 PC – assault with a deadly weapon
• Penal Code 417 PC – brandishing a weapon/firearm
• Penal Code 417.6 PC – brandishing a firearm causing injury
• Penal Code 12022.53 PC – 10-20-life – use a gun and you’re done
• Penal Code 16590 PC – possessing dangerous weapons
• Penal Code 17500 PC – possessing a deadly weapon to assault
• Penal Code 22810 PC – unlawful use of tear gas
• Penal Code 25400 PC – carrying a concealed firearm
• Penal Code 25850 PC – carrying a loaded firearm in public
• Penal Code 29805 PC – Firearm possession after misdemeanor domestic battery conviction
• Penal Code 30210 PC – bullets containing explosives
• Penal Code 30305(a)(1) PC – possession of ammunition by a prohibited person
• Penal Code 33215 PC – short-barreled rifles
• Penal Code 32310 PC – large-capacity magazines
• Penal Code 30315 PC – armor-piercing bullets

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Time To Reload: The Harms Of The Federal Felon-in-possession Ban In A Post-Heller World – Duke Law Journal.
• Problematic Presumptions: Why The Current State of Felon-in-Possession Law Risks Punishing the Innocent – University of Pennsylvania Law Review.
• Notice(ing) Ex-Offenders: A Case Study of the Manifest Injustice of Passively Violating a Felon-in-Possession Statute – Wisconsin Law Review.
• Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. Sec. 922(g)(1) – Penn State Law Review.
• In Defense of Felon-in-Possession Laws – Cardozo Law Review.

Also, see our related page on Can a felon own a gun in California?

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