Felon in Possession of a Firearm in California

An individual who has been convicted of any felony criminal offense in California loses their right to possess a firearm. In fact, it is a felony criminal offense for an individual who has been convicted of a felony to do any of the following:

• Own a firearm
• Buy a firearm
• Receive a firearm from someone else, e.g., as a gift
• Possess a firearm.

The firearm does not have to be in working order for possession to be a criminal offense. If it is a weapon designed to deliver deadly force, it qualifies as a firearm under the law. In addition, 2 or more defendants can possess a firearm at the same time. An individual does not have to be touching or holding a firearm to possess it. A local California attorney would be able to explain the offense in more detail.

An individual who has been convicted of being a felon in possession of a firearm can be sentenced to 16 months to 3 years in a county jail and payment of a fine of as much as $10,000 or both. The individual convicted must also give up any firearms that they own.

In addition, convictions of firearm offenses can result in deportation.

To convict an individual of felon in possession, a California district attorney must prove the following elements of the crime beyond a reasonable doubt:

• That the individual owned, purchased, received, or possessed the firearm,
• That they knew that they had done this, and
• That they have been convicted of felony criminal offenses in the past.

To be considered a “felon,” as defined by the law, an individual has to have been convicted of a criminal offense that is classified as a felony. The individual could have been convicted in any of the 50 states in the U.S.

Of course, the federal government has its own system of criminal law, and an individual may have been convicted of a federal felony criminal offense, which also means that the individual may not possess firearms.

However, the law does not apply only to individuals who have been convicted of a felony. California law also forbids someone from owning or possessing a firearm if any of the following is true:

• There is a warrant for their arrest outstanding.
• They are addicted to a narcotic substance.
• They have been convicted of a misdemeanor criminal offense that involved violence and a firearm.

A “firearm” is any device designed for use as a weapon that uses an explosion or combustion to expel a projectile through a barrel. It does not need to be loaded or even in good working order.

A “firearm” includes the following:

• Long guns,
• Handguns, and
• Firearms that are concealed.

Possession does not mean that the person had the firearm on their person or in their hand. Possession can be actual and construction. The term “actual possession” is defined as knowingly having direct physical control over something.

“Constructive possession” means knowingly having control over something, whether the control is direct, e.g., because an individual has it in their hand, or indirect, which is having control through someone else.

The law concerning how “possession” is defined can be quite technical. An individual might want to consult with an attorney if they have been charged with a firearm possession offense.

What Is the Minimum Sentence for Felon in Possession of a Firearm?

An individual who has been convicted of being a felon in possession of a firearm may be sentenced to formal probation for a term of from 3 to 5 years instead of a term of incarceration or payment of a fine.

In addition, convictions of firearm offenses can result in deportation.

Can a Felon Be Around a Person With a Gun?

An individual who has been convicted of a felony would probably want to stay well away from firearms. This would mean avoiding the presence of others who have firearms because California law defines “possession” as having control over an item. There are two types of possession:

• Actual possession, and
• Constructive possession.

“Actual possession” means that the convicted felon has direct, physical control of a firearm. For example, they might have it on their person or in the glove compartment of their car.

The term “constructive possession” means having access to a firearm or the right to control it, even when the item is not within an individual’s actual physical possession. It is easy to imagine that a convicted felon in the presence of another who owns a gun that is physically accessible to both of them could be charged with the crime of possession.

Even if the convicted felon does not own the firearm, they might end up charged with possession and have to appear in court to argue that it was not theirs and they did not have constructive possession of it.

What Weapons Can a Felon Own To Protect Themselves?

As noted above, a “firearm” is any device intended to be used as a weapon and is powered by an explosion or combustion to expel a projectile through a barrel. To be convicted of the crime of being a felon in possession of a firearm does not require that the firearm is loaded or in good working order.

In California law, a “firearm” is any of the following:

• Long guns,
• Handguns,
• Pistols,
• Tasers,
• Rifles,
• Concealed firearms.

An individual who has been convicted of a felony might want to stay well away from firearms of all types. They might consider exercising extra caution in their activities to avoid any risk of harm and calling the police if their safety is threatened.

Can a Felon’s Gun Rights Be Restored?

California expungement is the sealing of a criminal record of misdemeanor or felony convictions. Sealing is not available for all felonies and there are specific requirements for sealing.

Among the felonies that cannot be sealed are sex crimes, crimes that involve violence, and crimes that require the individual convicted of them to register as a sex offender. Therefore, many felony convictions cannot be expunged in California.

Other methods of trying to get one’s gun rights restored are as follows:

• When fighting a criminal charge that is a felony, they should work to get the crime reduced to a misdemeanor, e.g., as part of a plea agreement.
• Obtain a Certificate of Rehabilitation and submit it to the Governor of California to request a pardon. This is not easy to do. Obtaining a Certificate of Rehabilitation involves waiting 7 to 10 years after release from prison and taking other steps as well.

The strategy most certain to bring success is not to commit any felonies.

Do I Need a Lawyer if I Am Charged With Felon in Possession of a Firearm?

If you have been charged with being a felon in possession of a firearm, there are defenses available to you. LegalMatch.com can connect you to a California criminal defense lawyer who can review your case and identify any defenses that might be available. Your lawyer would also know how to negotiate a plea agreement that may preserve your right to own a firearm. You will get the best result with a qualified California criminal defense lawyer.