In California, having a felony conviction subjects you to a lifetime ban on owning, possessing, buying, or receiving a firearm. It is not a temporary restriction. It is a dire consequence of having a felony record in the state. The law providing for this prohibition is Penal Code Section 29800, which applies to most felony crimes, whether violent or not.

You may wonder if there are any exceptions or avenues to restoring your Second Amendment rights upon a felony conviction. Those channels are few and complex. Although specific legal procedures, like a Certificate of Rehabilitation or a Governor's Pardon, may relieve you of your record, these procedures do not necessarily guarantee restoring your firearm rights.

In many cases, specific felony categories, especially involving violence or firearms, may result in a lifetime firearm ban under California and federal law. It is necessary to understand these strict rules if you have a felony conviction because their violation may result in grave new legal penalties.

An Overview of Penal Code 29800

Under PC 29800(a)(1), you are generally prohibited from owning, possessing, or purchasing a firearm if you have been convicted of any felony. This law has a broad scope and applies to conventional guns and other devices that can be easily transformed into firearms.

Importantly, this is a lifetime ban. Your right to own or receive firearms is revoked permanently unless you can obtain a specific and often challenging legal remedy to have your firearm rights reinstated. This permanent ban is another reminder of the state's interest in ensuring the population's safety by disarming individuals who have proven themselves capable of committing a serious crime.

A breach of PC 29800 has grave implications, creating a new felony offense against you. Upon conviction, you may face a prison term of 16 months, two years, or three years, along with a substantial fine of up to $10,000.

What Amounts to Possession of a Firearm

In California, possessing a firearm means more than simply holding the weapon. The law recognizes two important types:

  • Actual possession

  • Constructive possession

Actual possession is the easiest to understand. It is where the gun is on your person, like in your hand or waistband. It is the closest you can be to having control over a weapon, and there is not much doubt about your immediate access to it.

Nevertheless, most people unknowingly break the law through constructive possession. Constructive possession does not require physical contact. It depends on whether you can control or access the weapon.

Think of it as the ability to control or guide the location and use of the gun, even though it may not be on your person. This expanded view of possession intends to ensure that people who should not have guns do not find ways to go around the prohibition by having the guns readily accessible, but not actually on their person.

Below are examples of how constructive possession could result in a serious charge:

  • A gun in a glove box of a car you are driving — Although the firearm may belong to another person and you never touch it, being in control of the vehicle means you can access the glove box contents.

  • A gun in a nightstand in a bedroom you share — You are aware of the gun in the nightstand and can retrieve it. You may be considered to be in constructive possession of the gun, irrespective of who the legal owner of the nightstand or the firearm is.

  • A gun in a household safe with the combination — If you know the combination, you have access and control, even though you may not own the safe or the gun in the safe. This is deemed constructive possession.

Under these circumstances, you may still be accused of illegal possession, even when the gun does not belong to you and you do not even touch it physically.

What Counts as a Prohibiting "Felony"

The term 'felony' carries specific implications for your firearm rights. Although a simple felony conviction virtually causes an automatic lifetime prohibition, there are nuances to consider, especially regarding:

  • Wobbler offenses

  • Out-of-state convictions, and

  • Juvénile adjudications

It is important to understand these differences to determine your eligibility to own guns.

  1. Wobbler Offenses

Wobbler offenses are a distinctive category of crime in California, which may be prosecuted and sentenced as either a felony or a misdemeanor, depending upon the decision of a prosecutor or the court. This latitude affords that what was initially charged as a felony might ultimately end up as a misdemeanor conviction.

The key to your gun rights depends on the ultimate sentence. When a wobbler crime is ultimately classified as a misdemeanor, the lifetime felony firearm prohibition does not apply. On the other hand, if it is still a felony conviction, you will fall under the lifetime ban of PC 29800.

  1. Out-of-State or Federal Convictions

Gun prohibitions do not apply only to convictions in California state courts. The state will administer an equivalency test in case you were convicted of a crime in a different state or a federal court. This means that, should the offense of which you were convicted have been a felony under California law, you will be subject to the California firearm ban. This applies irrespective of how it was classified in the jurisdiction where you were convicted.

This provision ensures that people with serious criminal records in other jurisdictions do not just escape the strict gun laws in California.

  1. Juvénile Adjudications

In the case of juvenile adjudications, the consequences to firearm rights are more precise and limited.

A juvenile adjudication could result in a temporary firearm ban until age 30 if the offense falls under WIC 707(b), but typically does not lead to a lifetime ban unless followed by an adult felony. In particular, if you were declared a ward of the court because of committing one of the offenses enumerated in Welfare and Institutions Code (WIC) 707(b). For example, if you are subject to a firearm prohibition for murder or robbery, you can be subject to a firearm prohibition.

They are usually violent and serious offenses that, when perpetrated by an adult, would constitute felonies. Even then, the firearm ban usually lasts until you are old enough, usually 30 years, unless another adult felony conviction occurs, which would result in a permanent ban.

Other Firearm Prohibitions You Need To Be Aware Of

In addition to felony convictions, other laws may prohibit you from owning or possessing firearms, temporarily or permanently. These additional limitations show the thoroughness with which the state treats firearm regulation. It considers a wide range of situations that can serve as possible indicators of a threat to general safety. These limitations apply to:

  • Misdemeanor convictions (PC 29805) — A conviction of a few specified misdemeanors listed in Penal Code 29805 can also result in a 10-year gun ban. These misdemeanors include offenses such as:

    1. Domestic battery (PC 243(e)(1))

    2. Assault (PC 240)

    3. Stalking (PC 646.9)

After the 10 years have elapsed, and if no other prohibiting circumstances exist, your gun rights are automatically restored for these convictions.

  • Narcotics addiction — If a court finds you currently addicted to a narcotic drug, you are prohibited from owning or possessing firearms under California law. However, the prohibition is contingent on the ongoing addiction status.

  • Domestic violence convictions — Domestic violence convictions carry some of the strictest firearm prohibitions. A misdemeanor crime of domestic violence conviction results in a lifetime firearm ban under federal law, the Lautenberg Amendment. Although the California law also provides a 10-year prohibition on certain misdemeanors related to domestic violence, the federal lifetime prohibition takes precedence. In certain California domestic violence felonies, or even certain serious misdemeanors like Penal Code 273.5 (inflicting corporal injury on a spouse or cohabitant) committed on or after January 1, 2019, a lifetime prohibition is also imposed under state law.

  • Mental health holds (WIC 5150) — If you are placed on a 72-hour mental health hold (sometimes called a 5150 hold) because you were deemed to be a danger to self or others as a result of a mental disorder, you will be subject to a 5-year firearm prohibition in California, from the day you are released from the facility. If you are admitted for dangerousness twice within one year, it may result in an indefinite state-level prohibition, which you can contest in court.

  • Active restraining orders — If you have been served with a protective or restraining order by a court, you are temporarily prohibited from owning firearms for the duration of the order. This is the case with different kinds of restraining orders, including domestic violence restraining orders, civil harassment restraining orders, and gun violence restraining orders. You are expected to turn over any guns you have or possess within a brief period, for example, 24 to 48 hours after being served with the order.

Restoring Your Gun Rights

A typical felony expungement under PC 1203.4 will not reinstate your firearm rights. This is a serious misconception that could result in profound legal consequences. Although an expungement could provide immense value concerning employment and professional licensure, the expungement does not remove the underlying conviction about firearm prohibition. To restore your gun rights, you need to follow specific legal options that would directly deal with the firearm ban.

  1. Path 1: Mitigating a Wobbler Crime (PC 17(b) Motion)

Under certain circumstances, if your felony conviction involved a wobbler offense that could have been filed as a felony or a misdemeanor, you can potentially restore your gun rights using a Penal Code 17(b) motion. This motion requests that the court retroactively reduce your felony conviction to a misdemeanor.

Should it be granted, then your conviction will be considered a misdemeanor "for all purposes," which generally includes the reinstatement of your state firearm rights. However, federal law still applies, especially offences categorized as violent or domestic violence-related. You could still be subject to a ban, so it is important to consult an attorney to clarify both state and federal consequences.

Eligibility for a PC 17(b) motion is generally limited to those:

  • Whose wobbler offense was not sentenced to state prison (county jail time is usually permissible)

  • Who completed probation

In evaluating whether to award the motion, a judge will look at several factors, among them:

  • The nature and gravity of the original crime

  • Your criminal record

  • Your behaviour and rehabilitation efforts since the conviction, and

  • Whether you have adhered to all the conditions of probation

By showing that you have a clean record and that you have engaged in a considerable amount of law-abiding behavior since the time of your conviction, you significantly strengthen your case. It is sometimes California's most viable and effective path toward gun rights restoration.

  1. Path 2: Obtaining a Governor’s Pardon

The broadest, yet most challenging and uncommon, way to restore firearm rights in California is through a Governor's Pardon. This usually takes two steps:

Obtaining a Certificate of Rehabilitation

A Certificate of Rehabilitation (COR) is a court document stating that you have been rehabilitated and have led an honest and upright lifestyle since your conviction. It is usually requested after a significant length of time, usually 7 to 10 years, has elapsed since you were released from custody or were discharged from parole or probation, in which time you have to show good behavior and moral standing.

Although receiving a COR is significant and can assist with some licensing and job prospects, a COR will not reinstate your firearm rights upon most felony convictions. Instead, the COR is mostly an official court suggestion to the Governor that you deserve a pardon.

Applying the Governor’s Pardon

After you obtain a Certificate of Rehabilitation, it automatically requests that the Governor grant a pardon. If you cannot receive a COR, for example, your conviction was out-of-state or a specific misdemeanor, you can apply for a direct pardon.

Pardons are solely at the discretion of the Governor and are usually only granted in exceptional circumstances where the person has demonstrated their rehabilitation and contributed significantly to their communities. It is a lengthy, strenuous procedure that entails extensive investigations on the part of the Board of Parole Hearings.

Due to its rarity and strict requirements, a Governor’s Pardon should be viewed as a remedy of last resort, not a particular method of restoring gun rights. It is an extraordinary solution, not a routine procedure that applies to most people with felony records.

What Types of Firearms Are Banned for Felons in California?

When it comes to firearm restrictions on felons in California, the law does not limit itself to the standard modern-day firearms. Instead, it expands its definition to what some consider exceptional cases. This is to the extent of including antique firearms, black powder guns, and even some air-powered instruments. These nuances are important, and their misunderstanding may cause significant felony charges.

  1. Vintage and Black Powder Firearms

Due to differences between state and federal law, there is a commonly misunderstood gray area regarding antique and black powder firearms.

Although federal law 18 U.S.C. 921(a)(16) typically excludes "antique firearms," those manufactured in or before 1898, or replicas using obsolete ammunition, a "firearm" as applied to the federal felon-in-possession prohibitions, California has a much more inclusive definition. Penal Code 16520 defines a firearm as a device designed to be used as a weapon, from which it is expelled through a barrel, a projectile by the force of an explosion or other form of combustion. This definition generally encompasses black powder firearms and many antique weapons, regardless of age or ignition method, so long as they can expel a projectile by combustion.

  1. BB Guns and Air Rifles

The status of BB guns and air rifles among felons in California is also a nuanced area. Low-powered BB guns and spring-operated airsoft guns are generally not considered firearms under California law, but higher-powered air rifles may be, depending on their capabilities and intent. The difference is, however, critical with more powerful air rifles or pellet guns.

When an air rifle projects a projectile via the power of air or gas pressure through a barrel, and when the air rifle is "intended to be used as a weapon," then it could be considered a firearm under Penal Code 16520. This means that a powerful air rifle capable of causing serious injury or death could be legally considered a firearm, despite not using gunpowder. Therefore, as a felon, having this device could lead to felony prosecution in violation of PC 29800.

The particular power and construction of the air gun are the main elements, with the help of which one can understand whether it is a kind of prohibited firearm.

Find a Criminal Defense Lawyer Near Me

Can a Felon own a gun in California? The answer is, with few exceptions, no. California laws are among the strictest in the country, with a broad net that captures everything up to and including modern guns, along with unexpected groups like antique guns, black powder guns, and even some high-powered air rifles. An unintentional violation of these complicated rules, even with the best intentions, may result in serious felony prosecutions and more jail terms.

When you are convicted of a felony, knowing these restrictions is in your best interest to avoid placing yourself in even greater legal jeopardy. You can ask a qualified Los Angeles lawyer for legal counsel suited to your situation. Call the LA Criminal Defense Law Firm at 310-935-1675 for guidance and representation if you or a loved one is arrested for gun violations as a felon.