California P.C. 29800: Felon in Possession of a Firearm

In California, the consequences of a felon in possession of a firearm may require a person to serve a state prison sentence. Prosecutors and law enforcement treat all firearm allegations seriously in an effort to prevent firearms from being distributed within the black market or used in the commission of a crime. However, firearm cases are more burdensome to a prosecutor than one would think and there are a number of defenses available to this charge. The best approach in defending firearm cases is to retain a criminal defense attorney at the earliest possible stage. Los Angeles Criminal Defense Attorney John Rogers has experience and success handling numerous firearm cases.

Felon in Possession of a Firearm Defined by California Statute

In California, felon in possession of a firearm is formally defined under Penal Code 29800(a)(1) which 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 who is addicted to any narcotic drug, and who owns, purchases, receives, or has in possession of under custody or control any firearm is guilty of a felony.”

Elements of the Crime

In order for someone to be found guilty of felon in possession of a firearm in California, the prosecution must prove:

  1. Defendant owned, purchased, received, or possessed a firearm
  2. Defendant knew they owned, purchased, received, or possessed a firearm
  3. Defendant was previously convicted of a felony or certain misdemeanor offense

The firearm need not be in working order but only that the firearm was designed to shoot and appeared to be in working order. Additionally, a firearm is loaded when there is an unexpended cartridge or shell in its firing chamber or magazine clip.

What are the Legal Defenses to Felon in Possession of a Firearm?

  • Your prior felony conviction was reduced to a misdemeanor. In some instances, individuals have their records reduced to misdemeanors. In that case, you will not be considered a “felon” because you had your felony reduced. This defense may also depend on other factors such as whether you are a known drug abuser or the misdemeanor conviction carries a 10 year firearms ban.
  • Police unlawful searched or seized you in violation of your Fourth Amendment rights. The law requires law enforcement be armed with probable cause to conduct a search of someone or their belongings. If the firearm was discovered in violation of your search and seizure rights, the firearm will then be suppressed and the prosecution will be unable to proceed.
  • You were not in “possession” of the firearm. Most firearm cases deal with this vary issue. It’s more burdensome that one would think to prove that one was in possession of a firearm if they were not actually touching it.
  • You did not “know” you were in possession of a firearm. If someone did not know that they were in possession of a firearm – e.g., in the back seat of their car left by a prior passenger – then you are not guilty of this offense. This argument is common if you were not in actual possession of the firearm.
  • You were disposing the firearm or transporting it to law enforcement. This is also known as “momentary possession” or “justifiable possession.”
  • You were falsely accused. This may occur if someone points the finger at you in an effort to save themselves from being arrested or prosecuted.

What is the Punishment for Felon in Possession of a Firearm?

The consequences of a felony conviction under felon in possession of a firearm are:

  • 16 months, 2, or 3 years in county jail
  • Formal Probation or Parole Supervision
  • Up to $1,000 in Fines
  • Permanent Firearm Ban
  • Immigration Consequences
  • Temporary Loss of Search & Seizure Rights

What Does “Possession” Mean?

The term “possession” does not mean that someone must be holding a firearm in their hand or in their pocket. Instead, there are two types of possession, actual and constructive. Actual possession means the firearm was on the person or in their vehicle. Constructive possession is defined vaguely as “when a person has control or the right to control” the firearm even through a third person.

What does “felon” Mean?

A “felon” in accordance with this statute, does not require a person have a prior felony conviction. Instead, persons who are addicted narcotics users or person convicted of certain misdemeanors qualify as a “felon” in terms of this statute.


Dan was on his motorcycle when he was stopped by a police officer. The police officer detained Dan and eventually searched a locked compartment. The police officer discovered a hand gun that was registered to a friend of Dan. In this case, Dan has numerous defenses his attorney can bring. First, there is no justification to detain Dan nor conduct a search of a locked compartment absent probable cause or a search warrant. Also, if Dan did not know the hand gun was in the locked compartment, perhaps his friend left it in there for safe keeping, Dan would then not be guilty of this crime because he did not know the firearms presence.

Dan was in an abandoned warehouse with type friends. There was a gun placed on a table. Police officers raid the warehouse and detain Dan and his friends. Police officers ran a criminal background check on Dan and discovered he was convicted of drug sales year prior. Thinking Dan was the possessor of the gun, police officers arrested and charged him with felon in possession of a firearm. In this case, Dan’s criminal defense attorney would argue that Dan is not guilty because there is no evidence to connect Dan to the gun other than being present. Moreover, no evidence links Dan to the gun. In addition, it’s equally plausible that the gun could belong to one of his friends who were present.

Free Los Angeles Firearms Lawyer Consultation

If you have been arrested or charged with a felon in possession of a firearm, contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers immediately. Mr. Rogers is located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call 877-888-9820 for a free confidential consultation concerning your rights and defenses.