Charged with Possession of a Firearm by a Felon (Penal Code § 29800) in California?

California’s gun laws are among the strictest in the nation, and they have become even more restrictive for individuals with prior felony convictions. Under California Penal Code § 29800, commonly known as “felon with a firearm,” it is illegal for convicted felons to own, possess, purchase, or have control over firearms. This law creates serious legal jeopardy for anyone with a felony record who comes into contact with firearms, even under seemingly innocent circumstances.

At David P. Shapiro Criminal Defense Attorneys, we’ve represented numerous clients facing weapons charges in San Diego and Chula Vista. This guide explains what you need to know about Penal Code § 29800, including the elements of the crime, potential penalties, and defense strategies that may help your case.

What Is Possession of a Firearm by a Felon Under California Law?

California Penal Code § 29800(a)(1) states:

“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, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”

This law not only applies to those with prior felony convictions but also to:

• People convicted of certain violent misdemeanors listed in Penal Code § 23515 (including assault with a deadly weapon and brandishing a firearm)
• People with two or more convictions for brandishing a firearm (PC § 29800(a)(2))
• Narcotic addicts
• People with outstanding warrants for any of the offenses listed in PC § 29800 who have knowledge of the warrant (PC § 29800(a)(3))
• People who were convicted of a felony as a juvenile but were prosecuted as an adult (PC § 29800(b))

Elements Prosecutors Must Prove

For a conviction under PC § 29800, prosecutors must prove beyond a reasonable doubt that:

1. You owned, received, possessed, or had control over a firearm
2. You were previously convicted of a felony or one of the specified misdemeanors, OR you are addicted to narcotics, OR you have an outstanding warrant for one of the specified offenses and know about the warrant

Let’s examine each of these elements:

Ownership, Possession, or Control of a Firearm

“Possession” under California law can be either:

• Actual possession: The firearm is physically on your person (such as in your hand or pocket)
• Constructive possession: You have access to and control over the place where the firearm is located (such as in your home or car)

You can be charged with violating PC § 29800 even if the firearm isn’t yours, isn’t registered to you, or isn’t immediately on your person—as long as you knowingly have control over it.

The term “firearm” is broadly defined to include:

• Pistols, revolvers, and handguns
• Rifles and shotguns
• Any device designed to be used as a weapon from which a projectile is expelled through a barrel by the force of an explosion or other form of combustion

This includes non-functioning and antique firearms but generally excludes BB guns, pellet guns, and airsoft guns unless they use an explosive to propel the projectile.

Prior Felony Conviction or Specified Status

The prosecution must prove that you have a qualifying prior conviction or status, which includes:

• Any felony conviction in any jurisdiction (federal, state, or foreign)
• Certain specifically enumerated misdemeanors involving weapons
• Two or more convictions for brandishing a firearm
• Addiction to narcotics
• Knowledge of an outstanding warrant for certain offenses

For federal felony convictions, PC § 29800(c) adds additional requirements:

1. The federal conviction must be for an offense that would be punishable as a felony under California law or
2. You must have been sentenced to more than 30 days in a federal correctional facility or fined more than $1,000, or both

Penalties for Possession of a Firearm by a Felon

Violation of Penal Code § 29800 is a felony, punishable by:

• 16 months, 2 years, or 3 years in prison
• A fine of up to $10,000
• Formal probation

These penalties can increase significantly if:

• The firearm was loaded or easily accessible ammunition was present
• You have prior convictions for the same offense
• You were in possession of multiple firearms
• The firearm was stolen or had an altered or removed serial number

Additionally, a conviction under PC § 29800:

• Can be used to enhance sentences for future convictions
• Can result in federal prosecution under federal firearms laws
• May affect the immigration status of non-citizens

Federal Consequences

It’s important to note that being a felon in possession of a firearm also violates federal law (18 U.S.C. § 922(g)), which can carry penalties of up to 10 years in federal prison. While most cases are prosecuted at the state level, more serious cases (such as those involving multiple firearms, other criminal activity, or interstate elements) may be prosecuted federally.

Common Defense Strategies

Several defense strategies may be effective when facing charges under PC § 29800:

Lack of Knowledge or Possession

To be guilty under this statute, you must knowingly possess, control, or have access to the firearm. If you didn’t know the firearm was present or didn’t have control over the area where it was found, this may provide a defense.

For example, if a firearm was found in a common area of a home you share with others, and you didn’t know it was there, you might have a legitimate defense.

Momentary Possession

California recognizes a limited defense of “momentary possession,” which may apply if you:

1. Possessed the firearm only for a momentary or transitory period
2. Possessed it in order to abandon, dispose of, or destroy it
3. Had no intention of preventing law enforcement from seizing it

For instance, if you briefly took possession of a firearm to prevent someone else from using it or to dispose of it safely, this might provide a defense.

Illegal Search and Seizure

If the firearm was discovered during an illegal search that violated your Fourth Amendment rights, your attorney might file a motion to suppress the evidence, potentially resulting in dismissal of the charges.

The Prior Conviction Was Not Qualifying

Your attorney may challenge whether your prior conviction actually qualifies under the statute. For example:

• Your rights may have been restored through a pardon or other legal process
• The prior conviction may have been reduced to a misdemeanor
• A federal conviction may not meet the criteria under PC § 29800(c)
• The prior conviction may have been obtained unconstitutionally

Justification or Necessity

In rare circumstances, a necessity defense might apply if you temporarily possessed a firearm to prevent a greater harm, such as in a genuine emergency situation.

Restoring Gun Rights in California

If you have a prior felony conviction, there are limited pathways to restore your firearm rights in California:

1. Governor’s pardon: A full and unconditional pardon from the governor may restore your gun rights
2. Reducing certain felonies to misdemeanors: For some “wobbler” offenses (crimes that can be charged as either felonies or misdemeanors), you may petition to have the felony reduced to a misdemeanor under Penal Code § 17(b)
3. Certificate of rehabilitation: While this doesn’t automatically restore gun rights, it can be a step toward obtaining a governor’s pardon

These processes are complex and success is not guaranteed. It’s essential to consult with an experienced attorney before pursuing any of these options.

The Importance of Experienced Legal Representation

Weapons charges involving prior convictions require specialized defense strategies because:

1. The penalties are severe and include mandatory felony status
2. The definition of “possession” is broad and can be proven through circumstantial evidence
3. Technical legal defenses related to search and seizure issues are often critical
4. The interplay between state and federal firearms laws creates additional complexity
5. The stakes include potential strikes under California’s Three Strikes Law

How David P. Shapiro Criminal Defense Attorneys Can Help

Our experienced San Diego defense team brings specific advantages to your firearm possession case:

• Thorough case analysis: We meticulously review the evidence to identify weaknesses in the prosecution’s case
• Constitutional expertise: We examine potential Fourth Amendment violations that may have occurred during the search and seizure
• Prior conviction analysis: We review your criminal history to determine if prior convictions actually qualify under the statute
• Strategic defense planning: We develop customized defense strategies based on the specific circumstances of your case
• Negotiation skills: When appropriate, we engage with prosecutors to explore charge reductions or dismissals
• Trial representation: We provide aggressive advocacy if your case goes to trial

We understand the serious nature of weapons charges and work diligently to protect your rights, freedom, and future.

Frequently Asked Questions About Firearm Possession by Felons

Can I handle or touch a firearm if I have a felony conviction?

Generally, no. Even momentary handling or touching of a firearm can constitute “possession” under the law, with limited exceptions for momentary possession to dispose of or prevent harm.

Does a misdemeanor conviction prohibit firearm possession?

Most misdemeanors do not prohibit firearm possession, but certain specific misdemeanors listed in Penal Code § 23515 (including assault with a deadly weapon and domestic violence offenses) do result in firearm prohibitions, typically for 10 years (at the state level).

If I’m convicted in another state, does the prohibition apply in California?

Yes. PC § 29800 applies to felony convictions from any jurisdiction—federal, other states, or even foreign countries.

Can I own a BB gun or air rifle with a felony conviction?

Generally, yes, if not on probation. Most BB guns, air rifles, and airsoft guns are not considered “firearms” under California law because they use air pressure rather than explosive force to propel projectiles. However, there are exceptions, so it’s best to consult with an attorney.

Can I live in a house where firearms are present if I have a felony conviction?

This creates a legally dangerous situation. Even if the firearms belong to someone else, you could be charged with constructive possession if you have access to them. The safest approach is to ensure no firearms are present in your residence unless Penal Code § 25135 is strictly adhered to.

Contact a San Diego Firearms Defense Attorney Today

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.