Gun laws in California are restrictive, however, the effect of a recent 9th Circuit Case may reduce the chances of a criminal violation for some concealed weapons carriers. As an attorney who represents persons accused of unlawful possession of a firearm in the Golden State, however, I would caution holding too expansive of a view of this decision.
Background of California Gun Laws
A very emotional issue in California and the United States is a person’s right to carry a firearm including a concealed firearm in public. A recent Ninth Circuit Court of Appeals case, Peruta v. County of San Diego, arising out of a San Diego case dealing with permits to carry a concealed weapon just made it easier for now for Californians to obtain a permit to carry a concealed weapon. See http://www.sfgate.com/bayarea/article/Court-strikes-California-law-limiting-concealed-5232386.php In Peruta, the Ninth Circuit found that adding a requirement that a person needs “good cause” to carry a concealed weapon on top of passing a moral character requirement violates a person’s right to bear arms under the Second Amendment of the United States Constitution. Such ruling is inconsistent with other state’s and Circuit rulings which require some type of good cause to carry a concealed weapon including but not limited to being employed in a dangerous profession. The Peruta ruling is still being challenged by the County of San Diego who are seeking an en banc panel of 11 judges from the Ninth Circuit to rehear the case in Peruta. Regardless of the ruling in Peruta, a person arrested of a gun charge in California must still consult an experienced criminal defense lawyers as many of the guns laws in California including cases in Los Angeles, Orange, Riverside and San Diego County are still enforceable and carry serious penalties if convicted of a felony.
Limitations of the Peruta Decision on Firearms Possession Charges in CA
Under California Penal Code 29800, there are three groups of individuals who are prohibited from possessing a firearm: 1. Ex-Felons; 2. Persons convicted of certain, specified misdemeanors; and 3. Drug addicts and persons convicted of certain drug offenses. The Peruta ruling does not change the laws regarding a felon in possession of a weapon or firearm. If you are arrested for possessing a firearm, whether it is concealed or not and you have a prior felony conviction in California, you will face felony charges which will expose the person arrested to a state prison sentence. If you have a felony conviction in your past and, even if you have been charged with a minor offense and the police searched your person, home or vehicle to find a gun, you may be charged with “Ex-Felon with a Firearm, or other Weapon”. This happens even if the felony was the youthful indiscretion or long-forgotten offense and even if the possession of the gun was for hunting, sport or other innocent purpose. It is extremely important to make the right legal maneuvers to avoid a conviction for this offense as it may, again, mandate prison time. If you are a person described in one of the categories set forth above, you may not receive, own, possess or purchase a gun of any type including a rifle or handgun. Depending on the conviction, a person who violates Penal Code section 29800 will not be able to own a gun for 10 years, sometimes for life and if you are a juvenile you won’t be able to possess a gun until you are 30 years of age. Penal Code section 29800 can be complicated and does obtain exceptions that one should discuss with an experienced California Criminal Defense attorney.
Legal Defense to charges of unlawfully possessing a Firearm under Penal Code section 29800
a. Proving “Possession” of a Gun
There are variety of defense an experienced criminal defense attorney may use when defending a person charged with unlawfully possessing a firearm. A common scenario occurs when a group of people are stopped in a car and a gun is found either inside the car or in the trunk and one of the passengers has a prior felony. In order for that person to be convicted of unlawfully possessing such a firearm, the prosecution must prove that the person had knowledge of such firearm and was in possession of the gun. In order to prove that you had no “possession” of the gun one must show that the person arrested had no control over the gun. Lack of control can be shown that another person owned and had control of where the gun was placed.
b. Self Defense
Even if you are a felon or other person not allowed to possess gun, you may possess a gun for the amount of time for purposes of self-defense. Specifically, if a person convicted of a felony is under an immediate threat, they may have a defense to charges of unlawfully possessing a gun. In California, self-defense will excuse a person from criminal liability under Penal Code section 29800 if you reasonably believe that you or another person is in immediate and/or imminent danger of suffering a great bodily harm or injury, the firearm becomes available to you for defense without any prior plan to possess the firearm, you only possess the firearm for as long as it is necessary to defend yourself or another and there is no alternative way to defend yourself against the immediate harm or danger other than possessing the firearm.
To understand whether or not you have a viable self-defense to charges of unlawfully possessing a gun, you should immediately contact a California Criminal Defense lawyer.
c. Momentary Possession of Gun
An ex felon or others may be able to defend charges of possessing a gun if they can show that they only momentarily possessed the gun. To prove such a defense, a competent criminal defense attorney must show that you only possessed the firearm for a momentary period, that the possession of the firearm was for the purpose only of abandonment, destruction or disposal and that the momentary possession was not for the purpose of preventing the gun from being taken or seized by the police and/or other law enforcement officers.
Sentencing under California Penal Code section 29800
If a person is convicted for violating California Penal Code section 29800, they will face 16 months, 2 years or up to 3 years in california state prison and a fine up to $10,000.00. Depending on the facts of the case and a person’s prior criminal record, a competent criminal defense attorney may be able to get a person probation, no jail time and possibly a dismissal of gun charges. Thus, it is very important that once arrested for violating California’s gun laws, that you immediately contact and/or consult with an experienced California criminal defense attorney.
Importance of Hiring a CA Criminal Defense Law Firm With Experience in Defending Gun Possession Charges:
The Peruta decision and other court opinions have lessened some restrictions on retention of a handgun or rifle in CA but, most laws that relate to criminal penalties for having a weapon on you especially if you have felony or certain misdemeanor convictions are still in place. Given the harsh penalties that are not only possible but, likely in this hostile “anti-gun” environment, it is imperative that any person accused of unlawfully possessing or concealing a firearm immediately consult and retain a quality legal representative to defend against conviction of such charges. Having a lawyer that is familiar with gun cases can mean the difference between doing hard time or getting the charges either dismissed or reduced.