The law on the crime of possession of a firearm by a felon is found at California penal code 29800(a)(1).

 

To be found guilty of PC 29800(a)(1) the district attorney will need to prove that the defendant:

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• Purchased, received, or possessed a firearm

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• Knew that he received or possessed the firearm, and

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• Had previously been convicted of a felony, or two brandishing a firearm offenses

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A firearm, for purposes of PC 29800(a)(1), is defined as a weapon, from which a projectile is discharged through a barrel by the force of an explosion or combustion.

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PC 29800(a)(1) covers guns, handguns, rifle, shotguns, pellet guns, BB guns, and paintball guns; however, spring-loaded air soft type weapons and guns that are obviously toys are not covered under PC 29800(a)(1).

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According to PC 29800(a)(1) possession of a firearm does not mean that the defendant had to actually touch a gun, rifle, or shotgun, etc.; a person may be in possession by either actual or constructive possession.

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Actual possession of a firearm means that the defendant is holding the firearm. Constructive possession means that the defendant had the right to control the firearm or the right to control the person who actually possessed the firearm.

 

For example, if a gun is found in the trunk of vehicle that is driven by the defendant, and the defendant is the only person on the registration of the vehicle, then the defendant may be said to have constructive possession of the gun. Another example of constructive possession might be when the police find a gun in a defendant's bedroom or safe.

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Note: Fleeting possession does not necessarily equal actual or constructive possession. for example, if a defendant is handed a gun wrapped in a cloth, and the defendant held the gun wrapped in a cloth for only a breif period of time beore he or she realized what he or she was holding is consdiered fleeting possession. Fleeting possession, without more evidence that the defendant knew what he or she had in his or her possession, should not lead to criminal convictions. Fleetin gpossession might also be found where a convicted felon is taking a firearm from another person in self defense or in an emerency to secure a firearm from third person harm.

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According to PC 29800(a)(1), it does not matter if the gun or firearm does not actually work. If the gun or firearm appears to be in working order it is sufficient to charge a defendant. Also, ammunition by itself is not covered under the felon in possession of a firearm law; however, a felon in possession of ammunition for a firearm may be charged under California penal code 30305(a)(1), which covers those offenses.

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Punishment for PC 29800

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The crime of felon in possession of a firearm, charged under PC 29800(a)(1), is classified as a felony in California. If found guilty of PC 29800(a)(1), the defendant could face up to three years in prison.

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Probation Sentence: A probation sentence is period of supervision (as opposed to jail or prison). Probation sentences may be allowed in both felony and misdemeanor PC 29800 cases depending on the facts of the case. Usually, probation sentences for convictions of felon in possession of a firearm crimes include some order for work release (manual labor) or house arrest (electronic monitoring) as a condistion of probation.

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PC 1170(h): If the defendant is found guilty of PC 29800 crimes, and he or she is not granted probation, the defendant must his or her incarceration in a state prison (as opposed to a local county jail (also called county prison). Also, any prison time ordered as part of the defendant conviction is not subject to being suspended (not served) or split (partially served)

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Note: PC 29800(a)(1) is not considered a Strike under California's Three Strikes Law and credit for time served is accrued at fifty percent (50%) for good time behavior while in jail or prison.

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Additional penalties for convictions of felon in possession of a firearm includes longer probation and parole terms, penalty fines, restraining orders, increased punishment for future criminal convictions, loss of immigration status, loss of professional licensing, and more.

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Defenses to PC 29800

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The most common defense to a PC 29800(a)(1) criminal charge is lack of sufficient evidence to prove the defendant had actual or constructive possession of the firearm.

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Also, if the defendant had only momentary possession, without intent to possess a firearm, then the crime has not committed (fleeting possession). Other defenses to PC 29800(a)(1) can include entrapment, statute of limitations, suppression of evidence, double jeopardy, coerced confessions, mistake of fact (believing gun to be a toy), self-defense, defense of others, emergency or necessity, Failure to timely prosecute (Serna Motion) and more.

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Self Defense: In 2024, the 9th Circuit Court of appeals held, in U.S. v. Duarte, that some convicted, non-violent felons, may have a right to possess a firearm for self-defense in limited situations. The court also held that a convicted felon, after his sentence is complete, might have his right to possess a firearm restore. This is new and developing law. Please check back here for updates on application of U.S. v. Duarte in 2024.

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If you or someone you know is charged with the crime of felon in possession of a firearm, or PC 29800, contact our criminal defense attorneys today for a free consultation. our criminal defense lawyers are always available to assist you with case a free case evaluation. Call today!

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909-913-3138​

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