Felon in Possession of a Firearm in San Diego
Imagine that you have a prior felony conviction and you are borrowing a car when you get pulled over by San Diego Police Department for a traffic violation. As the officer reviews your license and registration documents, he sees a firearm in the glove compartment. Up until that moment you did not have knowledge about the character of the firearm. You try to explain to the officer that the car is borrowed, you had not noticed that the firearm was in there and it must belong to the owner of the vehicle. The officer immediately forces you from the vehicle and arrests you for the unlawful possession of a firearm. The officer seizes the firearm without giving you an opportunity to explain the circumstances. Now you are back in the criminal justice system, with a prior criminal record and facing serious charges under California Penal Code section 29800. You already did your time and are trying to turn your life around, you deserve a chance to explain the circumstances and should not have to wait in custody hoping for it all to be cleared up. Do not let this happen to you, you need an attorney who is ready to begin working on your case immediately. At Monder Law Group we are ready to speak to you today and answer any questions that you may have.
Understanding Penal Code Section 29800
Penal Code section 29800 makes it clear that “any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony”. This means that people in these categories are not allowed to own, possess, receive or purchase a firearm or ammunition.
In order to prove that you are a felon in possession of a firearm in violation of Penal Code section 29800, the prosecutor in your case must prove beyond a reasonable doubt that you:
Have previously been convicted of a felony or
Are addicted to the use of narcotic drug; and
Owned, received, purchased or possessed a firearm.
Who is considered a felon?
Under Penal Code section 29800 there are four categories of felons:
People convicted of a felony offense in any state, government, or country.
Juveniles who have been prosecuted as adults.
People convicted under federal criminal defense whose state law equivalent conviction results in felony punishment.
People convicted under federal law who were sentenced to a federal correction facility for more than 30 days and/or received a fine of more than $1,000.
What is possession?
Under Penal Code section 29800 there are two ways to exercise possession of a firearm:
Actual Possession requires you to have direct physical control of the firearm.
Constructive Possession requires you to have the access to the firearm.
What is a firearm?
A firearm is any device designed to be used as a weapon, that discharges a projectile through a barrel by the force of a combustion.
Persons ineligible to possess firearms or ammunition?
Under Penal Code section 29800 there are three groups of people:
Narcotic drug addicts
Anyone convicted of two or more misdemeanor brandishing a weapon convictions.
Understanding the Limited Scope of the Fourth Amendment for Convicted Felons
The fourth amendment of the U.S. constitution establishes “the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by an oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” Thereby guaranteeing all citizens are the right to be free from unreasonable government searches and seizures of their persons, homes, businesses, and property.
It is very important that you understand that you may waive your fourth amendment right to privacy by consenting to a search and seizure. In the criminal justice system the fourth amendment is limited for convicted felons who are out on probation. This is because probationers are required to sign a temporary Fourth Amendment Waiver as a condition of their release. Effectively you waive your reasonable expectation of privacy and consent to searches and seizures without a search warrant and without probable cause. The Fourth Amendment Waiver remains valid your probation period has been legally terminated, at which time your fourth amendment right to privacy resumes. However, until that happens, law enforcement agencies are allowed to search and seize your person, your home, your vehicle and your personal effects.
Prior Gun Convictions Elevate Wobbler Gun Charges to Felonies
Generally, California firearm charges are considered wobblers and can be filed by the issuing district attorney as either a misdemeanor or a felony. The District Attorney’s Office makes the determination to wobble up or down the firearm charges based on the following factors:
The circumstances of the allegations;
The severity of the offense;
Whether you took responsibility for your actions; and
Your prior criminal record.
However, if you have a prior felony conviction for a firearm in your criminal record, the current firearm charge will be elevated to a felony. A felony conviction for possession of a firearm by a convicted felon can result in:
Sentence to state prison for 16 months, two or three years’
A maximum fine of $10,000;
Up to one year of formal probation;
Loss of right to own weapons;
Temporary loss of fourth amendment right; and
Loss of Firearms Rights
Firearms convictions carry serious second amendment consequences with bans that prohibit the possession, ownership, and acquisition of firearms. Such bans range from 10 years for misdemeanor convictions to a lifetime for felony convictions and specific misdemeanor convictions.
Firearms Ban for 10 years:
Misdemeanor Possession of an Illegal Weapon with the Intent to Use it
Single Misdemeanor Brandishing a Weapon
Misdemeanor Witness Intimidation
Misdemeanor Spousal Battery
Misdemeanor Violating a Protective Order
Lifetime Firearms Ban:
All Felony Convictions
Misdemeanor Assault with a Firearm
Misdemeanor Shooting an Inhabited Dwelling
Misdemeanor Domestic Violence Crimes
Two Consecutive Misdemeanors Brandishing a Weapon
Immigration Consequences of a Firearms Conviction
Pursuant to Title 8 U.S. Code section 1227(a)(2)(C) “any alien who at any time after admission is convicted under any law of purchasing, selling, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any destructive device in violation of any law is deportable”. This means that if you are not a U.S. citizen and you are facing a firearms conviction you will be considered deportable. Firearms convictions carry serious immigration implications, it is very important that you to hire an attorney who is both skilled in criminal defense and knowledgeable on the nuances of immigration consequences. Our San Diego criminal defense firm has vast experience handling firearms cases with immigration ramifications, give us a call today so that we may begin preparing the best defense for your specific circumstances.
Defenses for Felon in Possession of Firearms
These are some of the criminal defenses that we can assert on your behalf to help you overcome the firearms sentencing enhancements under Penal Code section 29800:
You did not have actual or constructive possession of the firearm.
Your possession of the gun was only momentarily and in order to dispose of it.
You did not know that the firearm was present.
You acted in self-defense under an immediate threat.
A valid self-defense claim requires that you have the reasonable belief that you or someone else was in imminent danger of suffering bodily injury. That without a preconceived plan, a firearm becomes available to you and you only possessed the firearm for as long as it was reasonably necessary for you to defend yourself or another because there was no alternative to avoid the imminent danger.
Charged with a Felony in Possession of Firearms? Your Go-to Criminal Lawyer in San Diego
If you find yourself in a situation where you could be charged with a felony involving a firearm it is imperative that you contact San Diego criminal defense attorney Vik Monder to protect your second amendment right to bear arms. This is the time to act, if you wait too long and are found guilty under Penal Code section 29800 you will be subject to a lifetime ban. This means that for the rest of your life you will not be allowed to possess, own, and acquire firearms. Once you receive the conviction of a felon in possession of a firearm it is impossible for you to have your second amendment right restored. Do not let this happen to you! Fight these charges with an criminal defense attorney who understands what is at stake and is ready to launch the strong criminal defense you need to avoid these consequences. We can help you with any firearm-related charge, including possession of firearms in the commission of a crime. Call now!