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Possession of Firearm by Person Prohibited Due to Conviction—No Stipulation to Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)

The Elements Simplified

In most cases, the prosecution will seek to prove simply:

  1. You possessed a firearm;

  2. You knew the firearm was in your possession; and 

  3. You were previously convicted of a felony or another offense disqualifying you from owning or possessing a firearm.

Note: In many cases, the prosecution will only need to prove the first two elements, not the third one. That's because you can agree or "stipulate" before the trial that the prosecution does not need to prove the third element -- that you were previously convicted of a felony; that way, the jury doesn't hear evidence about a prior felony, which could lower the risk of a jury prejudging you or your case. In other words, as a matter of strategy, it may make more sense to agree that the third element is already proven.

Punishment if Convicted?

This is felony that cannot be reduced down to a misdemeanor. If a judge refuses to give you probation, you are facing one of three possible terms of prison: 16 months, 2 years, or 3 years. And that is not local prison time; you would have to serve that at a state prison. With probation, the court would give anywhere from 0-364 days.

Important Points to Know

  • Two or more people may possess something at the same time.

  • A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.

Recognized Defense: Momentary Possession

In order to establish this defense, the defendant must prove that:

  1. You possessed the firearm only for a momentary or transitory period;

  2. You possessed the firearm in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy) it; AND

  3. You did not intend to prevent law enforcement officials from seizing the firearm.

Recognized Defense: Justifiable Possession

Possession of a firearm is not unlawful if you can prove that you were justified in possessing the firearm. To establish this defense, you must prove that:

  1. You (found the firearm/took the firearm from a person who was committing a crime against the defendant); AND

  2. You possessed the firearm no longer than was necessary to deliver or transport the firearm to a law enforcement agency for that agency to dispose of the weapon AND

  3. If the defendant was transporting the firearm to a law enforcement agency, he gave prior notice to the law enforcement agency that you would be delivering a firearm to the agency for disposal.

Do you have to prove anything if you present one of these defenses?

Yes, the defense, not the prosecution, has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true.

The Elements of the Offense - More Complete Version

To prove you guilty, the prosecution must prove that:

  1. You (owned/purchased/received/possessed) a firearm;

  2. You knew that you (owned/purchased/received/possessed) the firearm; AND

  3. You had previously been convicted of (a felony/two offenses of brandishing a firearm/a misdemeanor offense listed in Pen. Code, § 29805 or Pen. Code, § 23515(a), (b), or (d), or a juvenile finding from Pen. Code, § 29820).

If charged under Pen. Code, § 29805, the prosecution must also prove the previous conviction was within 10 years of the date you possessed the firearm. 


And if charged under Pen. Code, § 29820, the prosecution must prove you were under 30 years old at the time you possessed the firearm.

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