What Does Possession of a Firearm Mean?
In California, if you have ever been convicted of a felony crime or have an outstanding warrant for one, you cannot legally own a gun.
In addition to convicted felons, California Penal Code 29800 PC also states the following people cannot legally possess a firearm in the state:
- Those convicted of, or has an outstanding warrant for, a felony or federal crime anywhere in the United States or any other country.
- Those convicted of certain misdemeanors, including domestic violence and assault with a firearm.
- Those convicted with any Narcotic drug
- Any juvenile prosecuted as an adult and convicted of particular felony crimes, including assault with a deadly weapon.
If you’re convicted of any misdemeanor charges on this long list, you cannot possess a firearm for at least a decade. Some of these misdemeanor charges include:
- Theft of a firearm
- Selling firearms
- Driving a vehicle and letting someone in the car discharge a gun
- Possessing a deadly weapon with the intent to commit an assault
- Shooting a firearm at an unoccupied vehicle or house
- Assault with a stun gun or taser
What Does Possession Mean?
California Penal Code 29800 PC defines “possession” in various ways, including:
- Owning
- Purchasing
- Receiving
- Has in possession or under custody or control
So, in other words, a convicted felon found with a gun can be found guilty of illegally possessing a firearm even if they did not pay for it — if it’s in your possession in any way, you can be charged.
And it does not matter if the firearm is loaded or not — even possessing an unloaded gun or rifle is illegal.
You should also be aware that California law recognizes two types of possession:
- Actual Possession: If you have a gun in your purse or in the waistband of your jeans where it’s on you, and you have direct access to it, then you are in actual possession of the firearm. This also means no one else, but you had access to it when you were arrested.
- Constructive Possession: This one gets tricky, as constructive possession says the gun isn’t on your person, but you have access to it, so maybe it’s in the house you own or rent, or it’s in the trunk of the car you own.
What Legal Defenses Could a Criminal Defense Attorney Use?
Let’s say you are a California resident convicted of multiple misdemeanor crimes where under California Penal Code 29800 PC you cannot legally be in possession of a firearm. You’re stopped while walking down the street by a police officer, who says they have probable cause to search you. During the search, they find an unloaded gun in your waistband and arrest you for illegally possessing a firearm.
There are a few defenses a criminal defense attorney could use in this situation.
- You had “justifiable possession” of the gun as you were taking it to the police. Say you somehow took the gun from someone who was trying to harm you with it. A criminal defense attorney could argue you had justifiable possession of the firearm as you were on your way to the police to turn it in and only held on to the gun to do just that.
- You had “momentary possession” of the firearm because you had found it and needed to get rid of it. If you found the unloaded gun on the ground somewhere and picked it up to take it to a safe place — like a police station — your criminal defense attorney could argue you only had momentary possession of the firearm. And during this time, you had no intention of hiding it from the police — you had it concealed to keep it safe.
- Was the gun found on your person done so legally? Suppose the arresting police officer had no probable cause or reasonable articulable suspicion to search you or had not had a warrant. In that case, your criminal defense attorney could argue they found the gun during an illegal search and seizure, which is a violation of your Fourth Amendment rights.
Best Advice for Illegal Possession of a Firearm
If you or a loved one finds themselves arrested and charged under California Penal Code 29800 PC, they will need a well-respected and knowledgeable criminal defense lawyer on their side. For more than a decade, the H Law Group has been defending the residents of Los Angeles, Orange County, Riverside, Ventura, and San Diego. Call them today at (213) 370-0404 for a free consultation.
