Firearm Possession

Circumstances Where You Will Probably Be Charged With Firearm Possession

You will probably be charged with firearm possession, or the officers will make this decision when they reasonably suspect that you are violating certain sections of the Penal Code that address firearms. This is usually decided at the moment of an arrest or during an investigation where a gun is found under conditions that indicate unlawful ownership or carrying.

Circumstances that may lead to firearm possession accusations and further charges are:

1. In a Traffic Stop or Vehicle Search

If police officers pulled you over during a traffic stop and the police saw a gun in plain view or had probable cause to search your car, that is, they smelled marijuana or suspected other criminal activity, then they could discover the gun. Charges can be decided instantly if:

• You do not possess a concealed carry permit (CCW)
• The firearm is either concealed or loaded in contravention of PC 25400 or PC 25850
• You are prohibited from possessing one

2. Police Have a Search Warrant for Your Home or Property

If the police have obtained a search warrant on your home or other property and find a gun(s), they will subsequently determine whether you are qualified to own those gun(s). Charges will probably be filed against you if:

• You are a convicted felon
• Have certain violent misdemeanor convictions
• Are the subject of a restraining order,
• You are in any other category of persons prohibited by PC 29800

3. Response to a Call for Service

Responding officers may face firearms even at incidents that appear minor. Take a scenario where there is a domestic conflict and a gun is involved, and one of the parties is not supposed to have the firearm or where the gun is being carried illegally; then charges can be made as a result of that incident.

4. In an Arrest for Another Crime

Suppose you are arrested on another criminal offense, and a firearm is discovered on your person, in your immediate control, or in a vehicle or residence related to you. In that case, the officers will determine whether possessing that firearm is legal based on your condition and the situation. It may result in other gun possession charges if your possession is illegal.

5. Post-Investigation and Evidence Collection

In some instances, charges are not instant. For example, when the firearm is taken, connected to you via DNA, fingerprints, or other forensic tools, and you turn out to be a prohibited person, you may be charged, even though you were not arrested when the firearm was discovered. Likewise, when it becomes known that you, as a prohibited person, have obtained a gun, an inquiry may be made, resulting in a charge.

Understanding Firearm Possession

To grasp the firearm regulation satisfactorily, it is important to distinguish between the prohibited possession and the illegal carrying. Every crime, regulated by separate sections of the Penal Code, has elements that the prosecutor must demonstrate beyond a reasonable doubt. This difference is crucial to any individual who wants to understand the peculiarities of gun control in the state.

1. Prohibited Possession (PC 29800)

Section 29800 of the Penal Code makes it a strict felony offense for people who have been convicted of a felony, some violent misdemeanors or are under specific court orders, to own or possess a gun. This law ensures that guns do not end up in the possession of individuals who are considered to pose a greater danger to the safety of people.

For the jury to find you guilty of a PC 29800 violation, the prosecution must demonstrate three elements, namely:

Your Prohibited Status

Your prohibited status includes proving that you fit into one of the categories that are prohibited by law from possessing firearms, including;

• Having a prior felony conviction
• Having a conviction for certain specified violent misdemeanors
• Being under a domestic violence restraining order

This factor only looks at your legal status and whether you have a history of behavior that would bar you from owning a gun or are under legal limitations that would bar ownership of a firearm.

You Were in Possession of the Gun

The prosecution has to establish that you had the gun. This aspect may be in two ways: actual possession or constructive possession.

Actual possession means having the gun in your hand or a pocket. Constructive possession, on the other hand, is the control of the firearm, even when it is not physically in your possession. It could mean that the gun is in your car, your house, or any other place where you possess dominion and control over the object, which is evidence that you can access or utilize the object.

Knowledge that the Weapon Was a Firearm

The prosecution should prove that you had the “knowledge” that the object was a firearm. The state does not have to show you knew you illegally possessed the gun. They just have to demonstrate that you knew that the object you held was, in fact, a firearm.

For example, if officers caught you with a gun, the prosecution has to prove only that you were aware that it was a gun, not that you knew PC 29800 or that your particular situation would not allow you to possess it. This emphasis on what that object is, not whether it is legal to possess, simplifies the burden on the prosecution.

2. Unlawful Carrying (PC 25400 and PC 25850)

In addition to unlawful possession, the law also covers illegal possession of firearms by carrying them, mainly under:

• Penal Code 25400, carrying a concealed weapon
• Penal Code 25850, carrying a loaded firearm in public

These laws focus on the means and place of firearm ownership, and they are used to control the population’s safety by limiting how firearms can be carried. Although PC 29800 concerns the person’s identity with a gun, the sections are concerned with how and where a firearm may be carried.

To convict someone of PC 25400, carrying a concealed weapon, the prosecution must prove the following elements:

• You were in possession of the gun — Prosecutors have to demonstrate that you had a gun hidden on your body or in a car in your possession. This means that the weapon was not in plain sight but concealed so that the common eye could not see it.
• You knew of the gun’s presence — The prosecution must prove that you were aware of the firearm’s presence. It is not enough to be accidentally in close contact with a hidden weapon to be convicted. You must know it is there.
• You concealed the firearm — The state should demonstrate that the weapon was significantly concealed in plain view. A person of ordinary observation would not easily notice its presence.

However, in a PC 25850 conviction, involving carrying a loaded weapon in public, the prosecution has to meet other standards.

• You were in possession of a loaded firearm — The definition of a loaded firearm in California is that the firearm has an unexpended cartridge or shell in the firing chamber or in a magazine or clip that is attached to the firearm. This definition explains when a weapon can be said to be ready at any time.

• You were in a public place or on a public street — This is widely interpreted to include any areas open to the general population.
• You were in possession of the firearm — Just like PC 25400, this factor focuses on the knowledge of possession, rather than the knowledge of the law itself. The PC 25400 and PC 25850 are more focused on controlling the visibility and accessibility of firearms in the streets, which supplements the limitations on owning items established by PC 29800.

Penalties You Would Likely Face

A conviction of a gun crime may result in a harsh range of punishments, which go far beyond an immediate prison term or a fine. The impacts may essentially change your life, making it very difficult in several ways, including your freedom and your opportunities in the future.

1. Incarceration

The first and the most straightforward effect of a gun crime conviction is imprisonment.

In the case of a conviction of Penal Code 29800 that requires some individuals not to possess firearms, you will be subject to felony incarceration, which could be 16 months, 2 years, or 3 years in state prisons. The exact form you will be given will be based on your case facts and criminal history.

Conversely, unlawful carrying crimes, including PC 25400 (carrying a concealed weapon) and PC 25850 (carrying a loaded firearm in public), are treated as wobblers. It means they may be tried as either a misdemeanor or a felony, depending on the nature of the crime and your criminal history, at the prosecutor’s discretion.

If the state pursues misdemeanor charges, you might serve one year in county jail. Nevertheless, when charged as a felony, these crimes may also be punishable by up to three years of state prison, the same number of years as the PC 29800 offense.

2. Earning a Strike on Your Record

In addition to the original term of imprisonment, a PC 29800 is a serious felony, though it usually does not count as a ‘strike’ under the Three‑Strikes Law. This legislation aims to sentence repeaters of felony crimes to much greater terms.

A conviction for possessing a firearm by a prohibited person under PC 29800 will result in a strike. In case you already have one previous strike on your record, a new felony conviction, like a PC29800 offense, can lead to the doubling of your sentence.

If you obtain two previous strikes and then get found guilty of a third severe or violent felony, you may be sentenced to life imprisonment with a minimum term of 25 years. This status raises the ante exponentially, because if convicted of a future non-violent felony, you could face harsher prison sentences.

Economic and Lifetime Costs

The economic and lifetime costs of these convictions are also significant. In addition to the possibility of long prison terms, you might be fined heavily, with fines running up to $10,000, court costs, and restitution.

More permanently, a felony firearm conviction almost always means that you will permanently lose your Second Amendment rights. You will be permanently prohibited from owning, possessing, or buying firearms. It is a fundamental limitation that may affect your freedom and leisure.

Lasting Impacts of a Felony Conviction

Moreover, a felony conviction, especially with a weapon offense, brings about a vast range of collateral consequences that are broader than the immediate punitive actions. These are legal disadvantages and disabilities that can significantly impact your life after you have served your time. Some common lasting impacts include:

• Employment challenges — Felony conviction poses serious employment obstacles, as most employers run background checks and are hesitant to hire someone with a felony conviction record, especially when the job requires trust or access to resources.
• Inability to secure housing—It can also be incredibly challenging to find stable housing, and most landlords are unwilling to rent out to those with a felony conviction.
• Professional licensing challenges—Licenses to practice as a professional, in areas including healthcare and real estate, may be denied or revoked, thereby closing whole career paths to you.
• Immigration consequences—To non-citizens, a felony firearm conviction may have harsh immigration consequences, including deportation or the permanent inability to enter the United States again. These interrelated effects create a complicated network of problems, and reintegration into society is a daunting task for the convicts.

The Defenses That You Could Employ to Fight Firearm Possession Charges

When charged with gun-related offenses, there are several defense strategies that you can use to dispute the case against the prosecution. These defenses are often based on challenging the legality of how the evidence was collected or the inability to prove beyond a reasonable doubt the elements of the crime.

A competent defense counsel will carefully analyze each detail of your case to find the best line of defense.

1. Objection to Evidence Itself (4th Amendment Violations)

Challenging the evidence is one of the most consequential defenses against gun charges. The Fourth Amendment to the U.S. Constitution offers vital protection, which keeps you safe against unreasonable checks and arrests by the police. This constitutional protection requires law enforcers to follow strict legal procedures in conducting investigations and collecting evidence. If a firearm is found due to an act that does not follow these protocols, then that evidence is inadmissible in a court of law. Some of these situations include:

• When officers conduct an unlawful traffic stop without reasonable suspicion
• When officers search your residence without a legitimate search warrant,
   Officers search your car without probable cause or your voluntary consent

Your criminal defense attorney may strategically file a Motion to Suppress unlawfully acquired evidence, in most instances, under California Penal Code Section 1538.5. This pre-trial request is a formal request to the court to refuse to use the evidence against you. The judge will grant this motion if they carefully examine the situation under which the evidence was collected and conclude that your Fourth Amendment rights were infringed.

The effective suppression of the gun can be a critical turning point in a gun case, since it can seriously undermine the prosecution’s ability to prove their case. In the absence of the physical gun, the gun possession charges against you often result in a dismissal, because the prosecution no longer possesses the necessary legally acceptable evidence to go to trial.

2. Lack of Knowledge

When it comes to the charges of firearm possession, one of the most critical defense tactics is claiming that you were not aware that there was a gun. This defense directly challenges the knowledge element, which the prosecution should prove beyond a reasonable doubt to secure a conviction.

For example, suppose that you had just borrowed a car, and the gun was found in it, or you had a shared house where people had access to a shared living space. In these situations, it is plausible to state that you did not know the gun existed or where it was.

The law behind this is that you cannot knowingly possess something when you do not even know that it exists. This defense creates a reasonable doubt by proving that the prosecution does not have enough evidence to prove that you were aware of the firearm, so you could not have committed the crime willingly.

3. Imminent Possession Under Justifiable Reason

You can claim that you only temporarily possessed the firearm and did it for a legally reasonable purpose and not with a criminal motive. Using case precedents and jury instructions, the law has identified certain limited circumstances in which a brief, temporary firearm possession is not a law violation.

For example, this defense could apply when you momentarily grabbed a gun in self-defense of your own life or the life of others when there was an imminent and credible threat to your life or the lives of others, and you had no other reasonable choice.

Likewise, in a situation where you found a firearm, which was abandoned, say, in a park or even in your own house, in case it was brought there by a third party. All you wanted to do was keep it safe and hand it over to the police immediately. This temporary possession may be considered legal.

The basis of this defense is that it is centered in the context of the situation, limited intent on your part, and the brief period of control you exercised over the weapon, to distinguish this temporary handling from the general, illicit possession that the statute aims to deter.

4. The Absence of Control

The other defense option, especially in the constructive possession case, is that you were not in control of the place where the gun was discovered. If a firearm is found in a common area, like a common area in a multi-tenant apartment or a multi-person vehicle, the prosecution must show that you had dominion and control over that particular firearm.

Your lawyer can prove that other people had equal or even more access to the place, or that there is no direct connection between you and the weapon, for example, through fingerprints or DNA. This will be a strategy to cast reasonable doubt on your claim that you controlled the gun.

5. Non-Operational Firearm

A non-operational firearm defense may also be made because the object involved was not legally operational. California law defines a firearm. If the object is broken, missing key parts, a reproduction, or cannot operate in some other way, it may not fall within the legal definition necessary to convict.

Your lawyer may be able to call expert testimony or other evidence to show that the object discovered was not a functioning firearm as defined in the Penal Code, thereby creating a serious problem with a fundamental aspect of the prosecution’s case against you.