California law prohibits certain persons from possessing firearms.
These prohibitions can either last for a defined period of time, an uncertain period of time pending some event, or for a lifetime.
If you are found in possession of a firearm while you are prohibited from doing so under any number of different California laws, you may face criminal penalties ranging from fines and probation to years in jail.
However, there are many defenses in these cases, and an experienced California criminal defense attorney focused on CA gun crimes will be able to help you navigate through the complexities of California gun laws to achieve the best result in your circumstances.
Below are some of the different time periods certain persons are prohibited from possessing firearms and an overview of the laws people are most frequently prosecuted under.
Firearm Possession Prohibition – Various Time Periods
Felony Convictions – “Felon in Possession”
Any person convicted of a felony is prohibited from possessing a firearm in the State of California for the rest of their life.
CA Penal Code section 29800 provides in relevant part,
“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…and who owns, purchases, received, or has in possession or under custody or control any firearm is guilty of a felony.” (Pen. Code, § 29800, subd. (a)(1).)
Therefore, if you have been convicted of a felony and you have a firearm, you may be guilty of another felony, and face 16 months, or two (2) or three (3) years in county jail, and/or a maximum fine of $10,000. You may also face deportation and other immigration consequences if you are a legal immigrant or alien.
What is also important to note about this law is that it not only applies to prior California felony convictions, it also applies to prior felony convictions in other states, governments, and countries.
Case law has held that regardless of whether the prior offense would have been punishable as a felony in California, a person is prohibited from possessing a firearm simply because they have a felony in another state. (People v. Shear (1999) 71 Cal.App.4th 278, 282.)
However, if someone has been convicted of an offense under federal law, that is considered a felony for the purposes of Penal Code section 29800 if (1) conviction of a like offense under California law can only result in imposition of felony punishment, or (2) the defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
A skilled criminal defense attorney will be able to evaluate the facts and circumstances of your case and determine whether one of the many defenses to this charge are available to you.
For example, an essential element of the offense is that the District Attorney must prove that you actually possessed the firearm. Further, it must be proven that you knew that you were in possession of a firearm. If either of these elements are not proven, a person is not guilty of this crime.
The legal meaning of “possession” can be complicated, and whether or not a person possessed something under the law is significantly dependent upon the unique facts of each case. On one hand, two or more persons can legally be considered to be in possession of a firearm at the same time, and a person does not have to actually touch a firearm to possess it – it is enough if the person has either control over the firearm or the right to control it, either personally or through another person. (Judicial Council of California Criminal Jury Instructions CALCRIM 2510)
On the other hand, a person may be not guilty of this crime if they had momentary (transitory) or justifiable possession of a firearm, or if they possessed the firearm in self-defense or in defense of others if the circumstances of their possession meet the specific requirements of these defenses.
Knowledgeable criminal defense attorneys are intimately familiar with the complexities of this law and can spot any applicable factual or legal defenses and there is always a defense or potential amelioration of your circumstance.
“Violent Offense” Convictions – “Violent Offender in Possession”
Similar to the lifetime firearm prohibition on persons convicted of a prior felony, a person who has been convicted of a “violent offense” as defined in Penal Code section 29905 is prohibited from possessing a firearm in the State of California for the rest of their life.
Under Penal Code section 29900, a person previously convicted of any of these violent offenses who owns or has in possession or under custody or control any firearm is guilty of a felony, and faces 16 months, or two (2) or three (3) years in county jail, and/or a maximum fine of $10,000.
Additionally, even if probation is granted in such a case, or if the imposition or execution of the sentence is suspended, the law mandates that as a condition of probation or suspension, the defendant must serve at least six (6) months in a county jail. (Pen. Code., § 29900, subd. (a)(3).)
Unfortunately, even if that prior violent offense conviction was dismissed pursuant to Penal Code section 1203.4a (commonly referred to as an “expungement”), it still counts as a prior violent offense convicted under this law. (Id. at subd. (a)(2).)
What constitutes a “violent offense” is defined in Penal Code section 29905, and includes many obvious violent offenses, such as:
- Rape, and
but also includes robbery, arson, carjacking, and other certain crimes involving the use of a firearm as defined in Penal Code section 23515.
What is significant about this law is that even if your prior conviction was a misdemeanor rather than a felony, if it is one of the offenses listed in Penal Code section 29905, it is nevertheless a “violent offense” and the lifetime ban applies.
Many of the same defenses are applicable in these cases as in felon in possession cases, and a close examination of the prior conviction and the facts surrounding the alleged possession is necessary for proper legal representation of a person charged with this crime.
Convictions for Offenses Involving the Violent Use of a Firearm
Also prohibited from possessing a firearm in California for life are persons previously convicted of an offense involving the violent use of a firearm as listed in subdivisions (a), (b), and (d) of Penal Code section 23515. (Pen. Code, § 29800, subd. (a).)
These offenses include:
Assault with a firearm (Penal Code section 245(a)(2)), shooting at an inhabited dwelling or occupied vehicle (Penal Code section 246), and unlawfully drawing or exhibiting a firearm in the presence of a peace officer (Penal Code section 417(c)). (SeePen. Code, § 23515.)
Much of the same analysis is required in such cases as in the previously discussed offenses because they all fall under the umbrella of the same statue, Penal Code section 29800(a).
Therefore, a close study of each individual case is necessary to determine if a prior conviction fits under this lifetime prohibition and what defenses are available to a person charged with this crime.
Two (2) Prior Convictions of Brandishing a Firearm
Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Penal Code section 417 and who owns, purchases, receives, or has in their possession or under their custody or control is guilty of a felony. (Pen. Code, § 29800, subd. (a)(2).)
Penal Code section 417(a)(2) is the law that provides that every person who, except in self-defense, in the presence of any other persons, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is guilty of a crime. This crime is commonly referred to a “brandishing a firearm.”
This means that if you have two (2) prior convictions of brandishing a firearm under Penal Code section 417(a)(2), you are also prohibited from possessing a firearm for life in California. What is important to note is that Penal Code section 417(a)(2) is only punishable as a misdemeanor. Therefore, even if you have never been convicted of any felony, you may still have a lifetime prohibition on owning or possessing a firearm if you have two prior convictions for brandishing a firearm under Penal Code section 417(a)(2).
Again, whether or not something is “possessed” under the law can be counterintuitive, and whether the possession was lawful or what other defenses are available will be carefully analyzed by a criminal defense attorney representing someone charged with this offense.
If you are facing a lifetime prohibition on firearm possession, the gun crime lawyers at Tully-Weiss can help. In fact as criminal law specialists we have two decades' experience helping gun owners unfairly targeted. Give us a call to learn your options, it's confidential and there is no cost or obligation.
Contra Costa 925.229.9700 | Alameda 510.269.9227 | North Cal 530.776.0840
10-Year Prohibitions – Specified Misdemeanor Convictions
Felons are not the only persons with firearm restrictions in California. As discussed above, even persons with certain misdemeanor convictions can be prohibited from possessing a firearm for life.
Additionally, there are a number of different misdemeanor convictions that result in a ten (10) year ban from owning or possessing a firearm. Penal Code section 29805 list these offenses, and if a person owns, purchases, receives, or has in their possession or under their custody or control any firearm within 10 years of one of these prior misdemeanor convictions, they are guilty of a crime. (Pen. Code, § 29805.)
This crime is known as a “wobbler”, meaning that the prosecution (District Attorney) can either charge it as a misdemeanor or felony depending upon the circumstances of the case, the defendant's criminal history, or other such factors.
If prosecuted as a misdemeanor, a defendant faces up to one year in the county jail, a fine up to $1,000, or both that imprisonment and fine. If prosecuted as a felony, a defendant faces 16 months, two (2) years, or three (3) years in state prison, and/or a maximum fine of $1,000.
Common misdemeanors covered by this ban include:
- Intimidating witnesses or victims (Penal Code section 136.1)
- Assault (Penal Code sections 240, 241)
- Battery (Penal Code sections 242, 243)
- Assault with a deadly weapon other than a firearm, or with force likely to produce great bodily injury (Penal Code section 245)
- Discharging a firearm in a grossly negligent manner (Penal Code section 246.3)
- Inflicting corporal injury upon a spouse or significant other (Penal Code section 273.5)
- Willfully violating a domestic protective order (Penal Code section 273.6)
- Drawing, exhibiting, or using a deadly weapon other than a firearm (Penal Code section 417(a)(1)&(2))
- Criminal threats (Penal Code section 422)
- Stalking (Penal Code section 646.9)
This 10-year ban also covers various other offenses, including numerous misdemeanor firearm offenses. (Pen. Code, § 29805.) A gun-experienced criminal defense attorney will be able to determine, from your specific circumstance, whether certain prior misdemeanor convictions could result in this 10-year ban, and decide what defenses are available to a person charged with violating Penal Code section 29805.
Interestingly, police officers who have certain prior misdemeanor convictions may have relief from this 10-year ban.
Penal Code section 29855 provides that any person employed as a peace officer whose employment or livelihood is dependent on the ability to legally possess a firearm but is prohibited from doing so because of a prior conviction for corporal injury upon a spouse or significant other (Penal Code section 273.5), willfully violating a domestic protective order (Penal Code section 273.6), or stalking (Penal Code section 646.9), may petition the court for relief from the prohibition and be allowed to own or possess a firearm.
Any person who has been taken into custody as a danger to themselves or others, assessed, and admitted into a mental health facility under Welfare and Institutions Code sections 5150, 5151, and 5152 is prohibited from owning, possessing, controlling, receiving, purchasing, or attempting to own, possess, control, receive or purchase any firearm for five (5) years after they are released from the facility. (Welf. & Inst. Code, § 8103, subd. (f).)
Involuntary psychiatric holds, commonly referred to as “5150's” are incredibly common, and simply being subject to this hold, even if it does not result in any criminal prosecution whatsoever, places a five (5) year prohibition on any person subject to the hold.
However, a person who has been the subject of a 5150 hold may petition the court for an order that they be allowed to possess a firearm despite this prohibition. (Welf. & Inst. Code, § 8103, subd. (f)(5).) At this hearing, the prosecution bears the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.
If this burden of proof is not met, the court must order that the person is not subject to the five-year prohibition. (Welf. & Inst. Code, § 8103, subd. (f)(6)&(7).) An experienced California gun crime defense attorney can guide you through the court process to file and argue such a petition to eliminate your five-year prohibition on possessing a firearm.
Additionally, any person who communicates to a licensed psychotherapist a serious threat of physical violence against a reasonably identifiable victim is prohibited for five (5) years from possessing, having under their custody or control, purchasing, receiving, or attempting to purchase receive any firearm or any other deadly weapon commencing from the date that the therapist report to the local law enforcement agency the identity of the person making the communication.
However, much like the 5-year prohibition based on 5150 holds, a person subject to this ban may petition the court for relief. (Welf. & Inst. Code, § 8100.)
Other Firearm Prohibitions
In addition to all of the above prohibitions, California law also places firearm bans on particular persons that are triggered by certain events or last while some condition exists. Below are some examples of these miscellaneous firearm prohibitions:
Conditions of Probation
A person may be denied firearm possession as a condition of probation pursuant to Penal Code section 29900(c).
Pending Felony Charge
Any person charged with a felony offense, pending resolution of the matter. (18 U .S .C . § 922(g))
Mental Health Patients/Conservatorships
Any person while he or she is either a voluntary patient in a mental health facility or under a gravely disabled conservatorship (due to a mental disorder or impairment by chronic alcoholism) and if he or she is found to be a danger to self or others . (Welf . & Inst . Code, § 8103, subd . (e) .)
Any person addicted to the use of narcotics (Pen. Code, § 29800, subd. (a).)
Any person who is subject to a protective order as defined in Family Code section 6218 or Penal Code section 136.2, or a temporary restraining order issued pursuant to Code of Civil Procedure sections 527.6 or 527.8 .
Any person who has an outstanding warrant for a felony is prohibited from possessing a firearm. (Pen. Code, § 29800, subd. (a).) Additionally, any person who has an outstanding warrant for a misdemeanor offense listed in Penal Code section 29805 is similarly prohibited from possessing a firearm. (Pen. Code, § 29805.)
If your right to possess a firearm is at risk or has already legally taken away, Tully and Weiss lawyers can often help. Call our San Francisco Bay Area, Contra Costa and Alameda County gun crimes lawyers to learn what's possible and your options in a no-cost confidential consultation.