Penal Code § 29805 PC – Firearm Possession After Misdemeanor Convictions

Penal Code 29805 PC makes it a crime to own or possess a firearm if you were convicted of (or with an outstanding warrant for) certain misdemeanor offenses. This is provided that the ownership or possession comes within ten years from the date of the conviction or warrant.

29805 PC states that “any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation…and who, within 10 years of the conviction, or if the individual has an outstanding warrant, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense…”

Some of the misdemeanors covered under this statute include:

• assault, per Penal Code 240 PC
• domestic battery, per Penal Code 243e1 PC, and
• stalking, per Penal Code 646.9 PC.

Note that a conviction on or after January 1, 2019 of corporal injury to a spouse or cohabitant under Penal Code 273.5 PC carries a lifetime firearm ban.

Examples

• trying to buy a rifle after an assault conviction that took place 5 years ago.
• carrying a handgun after a battery conviction.
• having an automatic weapon in a garage after committing a domestic violence crime.

Defenses

A defendant can use a legal defense to contest a charge under this statute. Common defenses include:

• momentary possession,
• justifiable possession, and/or
• illegal search and seizure.

Penalties

A violation of this law is a wobbler offense. This means that it can be charged as either:

• a misdemeanor, or
• a felony.

If a misdemeanor, the crime is punishable by custody in county jail for up to one year.

If a felony, the offense is punishable by county jail or state prison for up to three years.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What constitutes a crime under Penal Code 29805 PC?
• 2. Are there defenses to the charge?
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Are there related offenses?
• Additional resources

Penal Code 29805 PC is the statute that makes it a crime for persons convicted of certain misdemeanors to own or possess a gun.

1. What constitutes a crime under Penal Code 29805 PC?

PC 29805 imposes a 10-year ban on owning/possessing a gun after certain misdemeanor convictions.

A prosecutor must prove the following “elements of the crime” to convict a person of a crime under this statute:

1. the accused committed a specific misdemeanor listed under the statute, or
2. the accused had an outstanding warrant for a listed misdemeanor, and
3. the defendant owned, purchased, received, or possessed a firearm, and
4. the defendant did so within 10 years from the date of the conviction/warrant.¹

Questions often arise under this statute on the meaning of:

1. what misdemeanors are subject to the law,
2. “firearm,” and
3. “possession.”

Misdemeanors subject to the law

Penal code 29805 does not apply to every misdemeanor conviction. The law only imposes a 10-year ban on firearm possession for certain misdemeanor convictions.

The misdemeanors subject to this law are specifically listed within the statute. Some of the main ones are:

• assault, per Penal Code 240 PC,
• battery, per Penal Code 242 PC,
• domestic battery, per Penal Code 243e1 PC,
• shooting at an unoccupied vehicle or building, per Penal Code 247bPC,
• brandishing a weapon or a firearm, per Penal Code 417 PC,
• criminal threats, per Penal Code 422 PC,
• stalking, per Penal Code 646.9 PC, and
• possession of a deadly weapon with intent to assault, per Penal Code 17500 PC.²

“Firearm”

An object is a “firearm,” under this statute, if it meets the following requirements:

1. it is a device designed to be used as a weapon,
2. a projectile expels through the device’s barrel, and
3. the projectile gets expelled via force or an explosion.³

“Firearms” are sometimes generically referred to as “guns.” Examples of firearms are:

• pistols,
• revolvers,
• rifles (including short-barreled rifles),
• shotguns (including short-barreled shotguns), and
• tasers.⁴

Pellet guns and BB guns do not qualify as firearms under these laws.

Note that it does not matter if a firearm is loaded or unloaded for purposes of this offense. Either one will result in a conviction under this statute.

“Possession”

California law says that “possession” is having control over an item.

There are two types of possession:

1. actual possession, and
2. constructive possession.⁵

“Actual possession” means that a person has direct, physical control of a firearm. For example, a person has an object on his/her body or in a backpack.⁶

“Constructive possession” means that a person has access to a firearm or the right to control it. An example is storing a firearm in a garage or dresser drawer.⁷

2. Are there defenses to the charge?

Here at Shouse Law Group, we have represented literally thousands of people charged with firearm offenses. In our experience, the following three defenses have proven very effective with judges, juries, and prosecutors, and can result in a case getting reduced or dismissed.

You had only momentary possession of the gun to get rid of it

If you lose your gun rights, practically speaking you have to possess your guns for at least a little while in order to surrender them to police or otherwise dispose of them.

Our advice in these situations is to have a relative or friend dispose of your guns so you never have to touch them. That way, there is no opportunity for police to wrongly presume you were in unlawful possession.⁸

You had the gun only because you took it from someone committing a crime

Again, this defense admits that you had a firearm, but it says that you had it for a justifiable reason: You took it from someone committing a crime.

We must prove the following for the defense to work:

1. you took the firearm from a person who was committing a crime against you,
2. you possessed the gun no longer than was necessary to deliver it to the police, and
3. if you were transporting the firearm to the police, you gave them prior notice.⁹

Typical evidence we rely on in these cases includes eyewitness accounts, surveillance video, and recorded communications.

The police found the gun through an illegal search and seizure

We have seen many cases where police executed searches with faulty warrants or without a lawful excuse to conduct a warrantless search. When police commit this type of misconduct, it calls into question the validity of any evidence they find.

Therefore if the police obtained the firearm in your case from an unlawful search or seizure, we would ask the judge to exclude it from the case. If the judge agrees, the prosecutor may be forced to drop your case for lack of evidence.

A violation of this law can result in a prison sentence.

3. What are the penalties?

A violation of this statute is a wobbler offense. This means that a prosecutor can charge it as either:

• a misdemeanor, or
• a felony.

If a misdemeanor, the crime is punishable by custody in county jail for up to one year.¹⁰

If a felony, the offense is punishable by a term in county jail or state prison for up to three years.¹¹

4. Are there immigration consequences?

A conviction under this statute will not likely have negative immigration consequences.

California law says that some criminal convictions can result in deportation.¹²

For example, a conviction of an aggravated felony may produce this result.

But at least one California court has said that a PC 29805 conviction will not adversely affect a person’s immigration status.¹³

5. Can a person get a conviction expunged?

A person can get a conviction of these laws expunged if the crime is charged as a misdemeanor.

California law says that a felony conviction leading to a prison term cannot get expunged.

However, an expungement is available for misdemeanor convictions.

This is provided that the defendant successfully completes:

• a jail term, or
• probation (whichever was imposed).

6. Are there related offenses?

There are four crimes related to the possession of a gun after a misdemeanor. These are:

1. felon in possession of a firearm – PC 29800
2. possession of a firearm by a juvenile ward prior to age 30 – PC 29820
3. possession of a firearm by a felon convicted of a violent crime – PC 29900
4. possession of ammunition by a person prohibited – PC 30305(a)(1)

Additional resources

For more information, refer to the following:

• Gun Safety Rules – National Rifle Association
• Firearms Q&As – Bureau of Alcohol, Tobacco, Firearms and Explosives
• Handguns Certified for Sale – California Attorney General
• Bureau of Firearms – California Department of Justice
• National Instant Criminal Background Check System (NICS) – Federal Bureau of Investigation

Legal References: