Criminal Defense » Penal password » 29800(a)(1) computer - Felon with a Firearm » 29800(a)(1) computer - Felon v a Firearm
1. Is it a crime for a felon to be in possession the a firearm?
Yes. PC 29800 prohibits three groups of human being from own firearms. These are people:who have actually been judge of a felony offense anywhere (or who have an exceptional warrant because that a felony), who space addicted come any drug drug1
A prosecutor must prove the following three elements of the crime to do a case for felon in possession of a firearm:the accused falls into one of the above categories, the owned, purchased, received, or possessed a firearm, and also the defendant knew the the visibility of the gun.2
Questions regularly arise under this statute on the an interpretation of:each of the categories prohibited from possessing a firearm, “firearm,” and also “possession.”
1.1. Felons through a firearm
Convicted felons space prohibited native owning/possessing a pistol in California.
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A “felon” is everyone who has been convicted of a felony offense anywhere. This includes:in any kind of state, or by any type of other government or country.
A human is additionally a “felon,” in part situations, if he has been convicted under a federal law.3
1.2. Addicted narcotics through a firearm
Persons addicted to any controlled substance space prohibited from having gun civil liberties under these laws.
“Addiction” calls for that a person be both:emotionally dependence on the narcotic, and also physically dependency on the drug.
The addict must additionally have one increased tolerance to its effects.4
1.3. Specific prior firearm convictions
Penal code 29800 prohibits a person from owning/possessing a total if he has specific prior convictions entailing a firearm.
These “certain” convictions include:
An thing is a “firearm,” under this statute, if the meets the adhering to requirements:it is a maker designed come be supplied as a weapon, a projectile expels through the device’s barrel, and also the projectile it s okay expelled via pressure or one explosion.6
“Firearms” are occasionally generically described as “guns.” instances of firearms are:pistols, revolvers, rifles (including short-barreled rifles), shotguns (including short-barreled shotguns), and tasers.7
Pellet guns and BB weapons do not qualified as weapons under these laws.
Note the it does not issue if a firearm is loaded or unloaded for purposes of these laws. One of two people one will an outcome in a conviction under this statute.
California law says that “possession” is having actually control over one item.
There are two varieties of possession:actual possession, and also constructive possession.8
“Actual possession” way that a person has direct, physics control the a firearm. Because that example, he has actually it is on his human or in a backpack.9
“Constructive possession” way that a person has actually access come a firearm or the appropriate to regulate it. An instance is save a firearm in a garage or dresser drawer.10
2. Space there legitimate defenses?
There are several legal defenses obtainable to a person charged through being a felon in possession of a firearm.
Three usual defenses space to show that:the defendant only possessed a gun because that a moment to remove it, the accused had a firearm since he take it it from who committing a crime, and/or the police found the defendant’s firearm due to an unlawful search and seizure.
2.1. Short-term possession
This defense admits the the accused had actually a gun. Yet it claims that that only had it because that a minute in stimulate to remove it.
The defendant have to prove the complying with for the defense to work:he possessed a gun just for a momentary or a transitory period, he own the gun in order come dispose that it, and he did no intend come prevent legislation enforcement officials from seizing the gun.11
2.2. Justifiable possession
Again, this defense admits that the defendant had actually a firearm. However he says that he had actually it because that a justifiable reason. The factor being he take it it from who committing a crime.
An accused have to prove the complying with for the defense come work:he take it the ﬁrearm native a human who was committing a crime against the defendant, he own the gun no longer than to be necessary to deliver it come the police, and if the defendant was transferring the ﬁrearm to the police, he gave prior notice that he would be delivering the gun.12
2.3. Illegal search and seizure
Authorities often charge this crime after ~ finding a total via a find of who or a seizure that property.
But police can only find a person, or grab property, by way of a lawful search warrant. Or, if no warrant, thesearch must fall under among the exceptions to the warrant requirement.
Ifpolice acquired a firearm indigenous an unlawful find or seizure, the defense can carry a motion to suppress evidence.If granted, the will many likely bring about the case being dismissed.
3. What room the penalties for a 29800(a)(1) pc conviction?
People who allegedly violate this criminal law challenge felony charges.
The crime is punishable by:custody in county jail for up to three years, and/or a maximum fine of $10,000.13
A judge might award felony (or formal) probation in lieu of jail time.
4. Go a felon through a firearm conviction lead to deportation?
A conviction under this statute can have negative immigration consequences.
California legislation says the convictions for firearm offenses can an outcome in deportation.14
“Convictions because that firearm offenses” contains convictions under pc 29800.
5. How deserve to a human being restorethe ideal to very own or own a gun?
A felony conviction subjects people to a lifetime ban from owning or own a pistol in California unless their guns rights room restored.15
A person can shot to restore gun legal rights by way of:one expungement a reduction in the charge, or a Certificate the Rehabilitation / Governor’s pardon
An expungement method that a criminal conviction gets set aside.
The act clears many of the hardships that come with a criminal conviction. This has restrictions on gun rights.
Note the an expungement is generally available listed that a defendant completes his:jail term, or probation (whichever is applicable).
Expungements, though, room not enabled if a defendant to be convicted of:a significant sex offense, or
5.2. Palliation in charges
A defendant may be maybe toregain gun civil liberties by obtaining a felony violation reduced to a misdemeanor.
This can sometimes happen, because that example, with wobblers.
A wobbler is an offense that a prosecutor deserve to charge as either a misdemeanor or a felony. The decision is make based on:the facts of the case, and also the criminal history of the defendant.
If a defendant was convicted of a felony wobbler, his or she attorney can petition the court to alleviate it to a misdemeanor.
If a judge grants the petition, a human may be able to gain backthe rights to own/buy a gun.
5.3. Certificate that Rehabilitation / Governor’s pardon
Some world in California can use for a Certificate of Rehabilitation. This applications is obtainable for certain:felony offenses, and also specified misdemeanor sex offenses.
A Certificate that Rehabilitation is a court order heralding that a convict is rehabilitated.
If granted, it is forwarded to the Governor through the court. Once received, it i do not care an application for a California governor’s pardon.16
If the pardon is granted, thiscan gain back a person’s gun rights.
6. Room there federal regulation restrictions on gun rights?
Federal law places constraints on certain people indigenous owning a gun. Some include:world under indictment for a crime punishable by more than one year in prison, those dishonorably discharged from the military, illegal aliens, world who have renounced their us citizenship, fugitives native justice.17
7. Room thereoffenses?
There are 4 crimes pertained to a felon with a gun. This are:corridor sentencing enhancements – computer 186.22, 10-20-life legislation – pc 12022.53, and also firearm possession after ~ conviction for details misdemeanors – pc 29805, and also possession the ammunition through a person prohibited – computer 30305(a)(1)
7.1. Gang sentencing enhancements – computer 186.22
Penal password 186.22 pc is the California statute that makes it a crime to take part in a street gang.
The law additionally imposes a sentencing enhancement if a human being commits a crime because that the benefit of a gang.
An enhancement method the human serves time in prison that is in addition to any kind of time offered for the underlying offense.
7.2. 10-20-life law – pc 12022.53
Penal password 12022.53 pc is California’s “10-20-life – usage a gun and you’re done” law.
It gives an “enhancement” come a California state prison sentence for:particular serious felonies when, the perpetrator supplies a gun in the the supervisory board of the crime.
It “enhances” sentence by make them significantly longer.
Penal code 12022.53 pc adds to a felony sentence:10 years in jail for “using” a gun, twenty years for firing a gun, or 25 year to life for killing or serious injuring an additional person through a gun.
7.3. Firearm possession ~ conviction because that misdemeanor domestic battery – computer 29805
Penal password 29805 pc prohibits a human being from owning or own a pistol if:he cursed a details misdemeanor, and also he do the efforts to very own or own the gun within 10 years from the day of the conviction.
The law imposes a 10-year ban on possessing a total for particular misdemeanor convictions.
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Some of these misdemeanors include:
(Note that a misdemeanor conviction ~ above or after January 1, 2019, that Penal code 273.5 PC- corporal injury come a spouse or cohabitant – dead a lifetime gun ban.)
7.4. Possession of ammunition through a human prohibited – computer 30305(a)(1)
Penal code 30305(a)(1) computer makes the a California crime for people who may not possess weapons to own ammunition together well. Other terms for this offense are “felon in possession of ammunition” and “unlawful possession of ammunition.”
A wobbler, unlawful possession the ammunition have the right to be a misdemeanor carrying up to one year in prison or a felony transferring up to three years in prison.