POSSESSION OF FIREARM BY PERSON PROHIBITED DUE TO CONVICTION IN CALIFRONIA

POSSESSION OF FIREARM BY FELON

In California, if you are a felon, it is illegal to possess a firearm. No felon may purchase, receive, own or possess a firearm.
But what does “possession” of a firearm mean? Who is defined a felon? Is there any exception from this regulation? Below, we will introduce you the main elements of the California Gun Laws related to the firearm possession by a felon. Additionally, in the resources of our site you can find detailed information about different kind of firearm offenses and defenses to them in California.

1. Restrictions in California Gun Laws
2. Firearm Possession Prohibitions
3. Criminal Elements of the Possession of Firearm by Person Prohibited Due to Conviction
4. Particularities of the Proof of Prior Conviction
5. Can I Use Possess Firearm if I am a Felon? / Defenses to Charges with Possession a Firearm by a Felon
a) Possession of Firearm by Person Prohibited by Statute: Self-Defense
b) Possession of Firearm by Person Prohibited by Statute: Momentary Possession
6. What Penalties Can I face for breaking California Penal Code 12021 PC?
7. Related Articles
We are ready to provide answers to your initial questions concerning firearm charges in California for free. You may file your request online, by telephone or by mail. 818-990-0418

1. Restrictions in California Gun Laws
According to California Gun Laws, there are certain classes of individuals who may not possess a firearm:
1. Felons. Any person who is convicted of a crime (violent or not) and this crime is punished by prison time more than one (1) year is considered to be a felon.
2. Persons convicted of certain misdemeanors.
3. Persons addicted to a narcotic drug.

Now, let’s take a closer look at the firearm possession by a felon.

2. Firearm Possession Prohibitions for a Felon
Under California Penal Code 12021, no person convicted of a felony may purchase, receive, own or possession a firearm.
Who is a Felon? A felon is considered to be any person who has been convicted of a felony offense resulted in a felony punishment, or sentenced in a federal establishment for more than thirty (30) days and a fine of more than $1.000. It does not matter where he or she has been punished or this conviction has been under state or federal law.

3. No Stipulation to Conviction
In order to prove that the defendant is guilty of this crime, the prosecutor must prove that:

1. The defendant owned, purchased, received, or possessed a firearm;
2. The defendant knew that he or she owned, purchased, received ,or possessed the firearm;
3. The defendant had previously been convicted of a felony or two offenses of brandishing a firearm or of one the crimes stated under California Penal Code Section 12021(c), 12001.6(a), (b), or (d), or a juvenile finding from California Penal Code Section 12021(e).

If the defendant is charged under California Penal Code Section 12021(c), the prosecutor must in addition establish the following fact:
– The previous conviction was within 10 years of the date the defendant possessed the firearm.

If the defendant is charged under California Penal Code Section 12021(e), the prosecutor must in addition establish the following fact:
– The defendant was under 30 years old at the time (he/she) possessed the firearm.

Let’s try to clarify certain terms of the crime elements.
Concerning the firearm, it is not required to be in working order. It has to be designed to shoot and appears capable of shooting.
It is not obligatory that only one person possesses the firearm. In order to establish the possession, it is enough to prove that the defendant personally controlled it or it was controlled through another person.

4. Particularities of the Proof of Prior Conviction
Regardless of what the defendant reasonably believed, or what the attorney may have told, the defendant is deemed to know that a convicted felon is forbidden to possess concealable firearms.
If the defendant has been convicted out-of-state, it is sufficient to prove that the offense is a felony under the laws of the “convicting jurisdiction. The prosecution must not establish that the offense is a felony under the laws of California.
Note that the lack of knowledge of being deprived of the right to possess a firearm due to conviction is not a defense.
Moreover, a felon who submitted a false application to obtain a firearm may not be prosecuted for an attempt to possess a firearm.

5. What Defenses Can I Use Against Charges with Possession of Firearm Due to Conviction?
a) Possession of Firearm by Person Prohibited by Statute: Self-Defense
Under California Penal Code 12021(h) PC, if the person prohibited from possessing a firearm possesses it under justifiable conditions. In particular, it is allowed to possess a firearm in self-defense.

The defendant cannot be found guilty of unlawful possession of a firearm if he or she temporarily possessed the firearm in self-defense or defense of another. In order to establish it, the defendant must prove the following facts:

1. The defendant reasonably believed that he/she or someone else was in imminent danger of suffering significant or substantial physical injury;
2. It was reasonably believed that the immediate use of force was necessary to defend against that danger;
3. The defendant did not plan and did not prepare on his or her part a firearm became available;
4. The possession of the firearm was temporarily (for a period no longer than was necessary or reasonably appeared to have been necessary for self-defense);
5. There were not any other available means of avoiding the danger of injury;
6. The defendant’s use of the firearm was reasonable under the circumstances.

The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not temporarily possess the firearm in self-defense or defense of another. If this requirement is not met, the defendant must be found not guilty of this crime.

b) Possession of Firearm by Person Prohibited by Statute: Momentary Possession
If the defendant possessed a firearm, it was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:

1. Possession of the firearm was for a momentary or transitory period;
2. Possession of the firearm aimed at abandoning, disposing or destroying it,
3. There was no intention to prevent law enforcement officials from seizing the firearm.

The prosecution must prove that you knew about the presence of a firearm and possessed it. Even if you prohibited from possessing a firearm, your relatives still have this right. And you do not break the law until you control the firearm.

6. Penalties Under California Penal Code 12021 PC
The conviction under Penal Code Section 12021 can lead to harsh consequences. In particular, the defendant can face imprisonment in a county jail or state prison, fines, and confiscation of the firearm(s).

7. Related Articles
Firearm Offenses
Gang-Related Firearm Enhancement
Possession of a Firearm without a Permit
Assault with a Deadly Weapon
Possession of Firearm by Person Addicted to a Narcotic Drug
California’s Law against the Unlicensed Sale of Firearms

 

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