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Felon with a Gun | CA Penal Code 29800 PC
If you get convicted of any felony offense, you will lose your gun rights in California. In fact, if you have a felony conviction on your criminal record, it is itself a felony offense to own, purchase, receive, or possess a firearm.
Convictions carry up to 3 years in prison. However, there are several ways for you to get your firearms rights restored.
“Felon With a Firearm” Law
In California, if you have a prior conviction for a felony offense, you cannot own a gun. Doing so violates California Penal Code section 29800 PC – the state’s “felon with a firearm” law.
If you are a felon, this statute also prohibits you from:
- purchasing,
- receiving, or
- having possession, custody, or control
of a firearm.
To convict you under this statute, California district attorneys have to prove the following elements:
- you owned, purchased, received, or possessed the firearm,
- you knew that you had done it, and
- you are a felon or someone else covered by the statute.1
They have to prove these elements beyond a reasonable doubt.
To be considered a “felon” under the law, you must have been convicted of a felony offense. That conviction can be anywhere in the United States. It can also be a felony conviction for a violation of federal law.2 It can even be a juvenile court finding.3
However, the law is not strictly confined to convicted felons. The statute also forbids you from owning or possessing a firearm if:
- you have an outstanding warrant for a felony offense,
- you are addicted to a narcotic drug, or
- you have been convicted of a violent firearm crime, even if it is a misdemeanor.4
A “firearm” is any device intended to be used as a weapon and that uses an explosion or combustion to expel a projectile through a barrel. It does not need to be loaded or even in working order.5
A “firearm” includes:
- long guns,
- handguns, and
- concealed firearms.
Possessing the firearm does not necessarily mean that it was on your person or in your hand. Possession includes both
- actual and
- constructive possession.
Actual possession is when you knowingly have direct physical control over something. You have constructive possession over something when you can knowingly control it, whether directly or through someone else.6
For example: Gerald puts a sawed-off shotgun in the backseat of his car, gets out of the vehicle, and closes the door.7
However, possession of a firearm requires more than just momentary possession. It is not considered possession if you can show that, by a preponderance of the evidence, you:
- possessed the weapon for only a momentary or transitory period of time,
- had the gun in order to dispose of it, and
- did not intend to prevent law enforcement from seizing the weapon.8
If convicted under California’s “felon with a firearm” law, you can face up to 3 years in prison. Once released, a common condition of probation for this offense is to not possess firearms.
Misdemeanor Convictions
Certain prior misdemeanor convictions can also strip you of your right to own or possess a firearm for life. Many more misdemeanor offenses will lead to a 10-year prohibition against owning or possessing a firearm.
Prior misdemeanors that lead to a lifetime ban against owning or possessing a firearm are:
- two or more prior convictions for brandishing a firearm or weapon (Penal Code 417 PC), or
- violent use of a firearm under Penal Code 23515 PC, which includes:
- assault with a firearm (Penal Code 245(a)(2) PC),
- assault with a machine gun or assault weapon (Penal Code 245(a)(3) PC),
- assault with a firearm, machine gun, or assault weapon on a peace officer or firefighter (Penal Code 245(d) PC), and
- shooting at an inhabited dwelling or an occupied vehicle (Penal Code 246 PC).9
Some of these offenses are wobblers. They can be prosecuted as either a felony or as a misdemeanor.
If any conviction was a felony, it will strip you of your gun rights. If the conviction was a misdemeanor, but was for one of these criminal offenses, it will still deprive you of your gun rights for life.
Many other misdemeanor offenses can carry a 10-year ban against firearm possession in the state of California. Some of these include:
- assault (Penal Code 240 PC),
- assault with a deadly weapon (Penal Code 245(a)(1) PC),
- violation of a protective order or restraining order (Penal Code 273.6 PC),
- criminal threats (Penal Code 422 PC), and
- possession of firearms in a school zone (Penal Code 626.9 PC).
Out-of-State Federal Convictions
Out-of-state or federal convictions can count for California’s firearm laws, as well.
If the out-of-state conviction was a felony in that state, it will prevent gun ownership in California.
However, if the conviction was for a federal offense, it will strip you of your right to bear arms if:
- a conviction for a similar offense in California could only be considered a felony, or
- you were sentenced to a federal prison for more than 30 days, or were fined more than $1,000, or both.10
Therefore, if the federal offense would have been a wobbler under California law, it should not implicate your gun rights.
However, there is an important exception for misdemeanor crimes of domestic violence. California state law imposes a 10-year ban on firearm possession for domestic violence offenses.
Federal law, though, imposes a lifetime ban and trumps California’s law.11 Anyone with one of these misdemeanor offenses on your criminal history can commit a federal firearms offense if you possess a gun. Convictions carry up to 10 years in federal prison.12
(Scroll down for more discussion about federal firearm laws.)
Restoring Gun Rights
Under California’s gun laws, there are three ways for you to restore or preserve your gun rights:
- get a reduction in the criminal charge,
- expunge the conviction, and
- obtain a Certificate of Rehabilitation and a Governor’s pardon.
Establishing an attorney-client relationship with a criminal defense attorney from a reputable law firm and getting their legal advice is the best way to restore your gun rights.
Reduce the original charge
Reducing the original charge can preserve or restore your right to bear arms.
This can happen during the criminal case, often through a plea deal. If you are charged with a felony, you may be able to plead guilty to a lesser misdemeanor offense. If this works, your right to own a gun may be protected.
If the criminal offense was a wobbler, the prosecutor pursued it as a felony, and you got convicted, then you can petition the court, later on, to reduce the felony to a misdemeanor. If the court grants the petition, it can restore your gun rights.
Expungement
Expungement is the act of setting aside a conviction and sealing the record of it. When there is no record of the conviction, you do not have to deal with the hardships that come with the blemish on your criminal history.
However, not all crimes can be expunged in California. Importantly for Second Amendment rights, many convictions that led to time in state prison (which includes many felonies) are ineligible for expungement. Therefore, many felony convictions cannot be expunged.
Certificate of Rehabilitation and pardon
Certain felony offenses can be pardoned. This process requires you to apply for a Certificate of Rehabilitation. If the court grants this application, it will issue a court order declaring that you are rehabilitated.
The Certificate of Rehabilitation is forwarded to the Governor’s Office. There, it becomes an application for a pardon from the Governor. If granted, your gun rights will be restored.
Having a Gun & Living With a Felon
You can still own a gun if you live with a felon in California. However, it is not a good idea to keep your gun in your home; instead, you should keep it in an offsite storage unit under only your name.
If you keep a gun in your home, the felon you live with could potentially be charged with constructive possession of the firearm – even if you keep the gun locked in a safe. Plus a prosecutor may try to charge you with aiding and abetting a felon to obtain a firearm.13
Federal Firearm Ban
Federal law prohibits you from possessing a firearm if either:
- You have been convicted of a crime punishable by at least one year of prison (this includes both federal and state felonies as well as certain misdemeanors that are punishable by more than two years in prison);
- You are the “adverse party” in a domestic violence restraining order;
- You have been convicted of misdemeanor domestic violence;
- You are addicted to a controlled substance;
- You have been adjudicated as mentally defective or committed to a mental institution;
- You are an undocumented person;
- You have been dishonorably discharged from the military; or
- You have renounced your U.S. citizenship14
You can try to get your firearm rights restored through a presidential pardon. However, these are rarely granted. Plus even if you get a presidential pardon, it applies only to federal offenses: It does not affect state laws that may still prohibit you from possessing firearms.15
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-co*cked: 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.
Legal References:
- California Criminal Jury Instructions (CALCRIM) No. 2510.
- California Penal Code 29800 PC.
- CALCRIM No. 2510.
- California Penal Code 29800 PC.
- CALCRIM No. 2510.
- People v. Azevedo, (1984) 161 Cal.App.3d 235.
- Facts from People v. Azevedo.
- CALCRIM No. 2510. See also People v. Reyes (Cal. App. 1st Dist. 2019), 247 Cal. Rptr. 3d 247, 35 Cal. App. 5th 538.
- California Penal Code 29800(a)(1)-(2) PC.
- California Penal Code 29800(c) PC.
- 18 U.S.C. 922(g)(9).
- 18 U.S.C. 924(a)(2).
- See also People v. Jeffers (Cal. App. 5th Dist. 1996), 41 Cal. App. 4th 917, 49 Cal. Rptr. 2d 86.
- 18 U.S.C. 922(g) & 921(a).
- U.S. Department of Justice, Office of the Pardon Attorney, “Frequently Asked Questions.”
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
