CA Penal Code 12021

Felon with a Firearm

Felon with a Firearm Charges

In California, there are three specific groups of people who are not allowed to carry a firearm. These three groups include:

  1. Anyone who has been convicted of a felony
  2. Anyone who has been convicted of a specific list of misdemeanors
  3. Anyone who is addicted to narcotics

In order to be convicted of CA Penal Code 12021[1] the prosecutor must prove the three elements of the crime:

  1. That you can be categorized into one of the groups mentioned above
  2. That you owned, purchased, received, or possessed a firearm
  3. That you knew the firearm was in your possession

If the prosecutor cannot prove these three elements of the crime then you will not be convicted of CA Penal Code 12021.

However, if the prosecutor can prove the elements of the crime and you are convicted, then you will face:

  • Up to three years in state prison
  • Fines up to $10,000
  • You will have to give the weapon to the police

Some related offenses include:

CA Penal Code 12021(c)[2] states that if you are caught with a firearm and have been convicted of either:

Then you will face up to three years in state prison and fines up to $1,000

CA Penal Code 12021(e)[3] states that if you were convicted for any of the following, as a minor, and are caught with a gun before you turn 30 years old:

  • CA Penal Code 211 – Robbery
  • CA Penal Code 206 – Torture
  • CA Penal Code 205 – Aggravated Mayhem

Then you will face up to three years in state prison and fines up to $1,000

CA Penal Code 12021(g)[4] states that if you are caught with a gun in violation of a restraining order then you will face up to three years in state prison and fines up to $1,000

Prosecuting Felon with a Firearm – CAPenal Code 12021

As previously mentioned, in order to convicted of CA Penal Code 12021 the prosecutor must prove the following elements of the crime:

  1. That you can be categorized into one of the groups mentioned above
  2. That you owned, purchased, received, or possessed a firearm
  3. That you knew the firearm was in your possession

The first element of the crime is that you fall into one of the groups mentioned above, the first group is that you are a felon. In order to be considered a felon in California you must have had a prior felony conviction that resulted in felony punishment, or that you had a prior felony conviction that resulted in 30 or more days in a federal correctional facility and/or more than $1,000 in fines.

The third group categorizes all people who are addicted to narcotics. Addicted is defined as being both emotionally and physically dependent on a drug and have an increased tolerance to its effects.

The second element of the crime is that you owned, purchased, received or possessed a firearm. California defines a firearm as, “any device, designed to be used as a weapon, from which is expelled through a barrel, a projective by the force of any explosion or other form of combustion.[5].

The final element of the crime that the prosecutor must prove is that you knew of the firearm that was in your possession. Possession in California is defined broadly and falls into two different categories: actual possession and constructive possession. Actual possession means that you have physical control of the firearm, meaning if you are holding a firearm then you have actual possession of it. Comparatively, constructive possession means that you know have access to the firearm or the right to control it. In other words, you have constructive possession of a firearm if you are not near the firearm but you know where it is.

These varying definitions of possession are important because in order to be convicted of the crime the prosecutor must prove that you knew you possessed the firearm. If you were in actual possession of the firearm then it’s not difficult to prove; however, if the firearm was in constructive possession then it becomes increasingly difficult.

Defending Felon with a Firearm – CA PenalCode 12021

There are a myriad of defenses that your criminal defense can employ to prove your innocence. Firstly, your criminal defense attorney will see if you were in possession of the gun, either actual possession or constructive possession. If your attorney can prove that you were not in possession of the gun then you cannot be found guilty of felon with a firearm.

Next, your criminal defense attorney will investigate whether or not you knew about the presence of the gun. If your attorney can prove that you were unaware of the guns presence then you cannot be found guilty of felon with a firearm. Your attorney will look into the police report and analyze the details of the arrest, perhaps you were in a friend’s car or a friend’s apartment and was unaware of the gun’s presence.

Your attorney will also see if you were in immediate danger. California protects its citizens from being punished from having a gun if:

You reasonably believe that you are in imminent danger of death or suffering great bodily injury, and

  • You didn’t act with a preconceived plan, and
  • The firearm became available to you, and
  • You only used the gun to defend yourself, and
  • There was not an alternative way to protect yourself

If you used the gun in accordance to California’s self-defense law then you are not guilty of felon with a firearm.

A viable defense is if you only had temporary possession of the firearm. There are three scenarios that exempt you from a CA Penal Code 12021 conviction:

  1. That you only possessed the firearm momentarily
  2. That you possessed the firearm for the sole purpose of abandonment, disposal, or destruction
  3. That your possession wan’t for the purpose of preventing the firearm from being seized by law enforcement

If your attorney can prove that any of the above scenarios pertain to your case then you will not convicted of CA Penal Code 12021.

Another viable defense that your criminal defense attorney can employ is to prove that your possession of the gun was justifiable. In order for a felon to have a justifiable possession of a felony, it must fall under one of the following scenarios:

  1. That you took the firearm from a person who was committing a crime against you
  2. That you possessed the gun only long enough for you to deliver it to a law enforcement agency
  3. Prior to leaving to deliver the firearm, you contacted the appropriate law enforcement agency

If any of the aforementioned scenarios pertain to your case then you will not be convicted of CA Penal Code 12021.

One defense that is not viable is to claim that you were practicing your Second Amendment right to bear arms. California practices strong gun regulations, so if you act in such a manner as to appear as a threat then you no longer have the right to bear arms.

 

References

[1] 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 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

http://theacademy.ca.gov/docs/CA%20Penal%20Code%2012021.pdf

[2] (c) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision. However, the prohibition in this paragraph may be reduced, eliminated, or conditioned as provided in paragraph (2) or (3).

http://theacademy.ca.gov/docs/CA%20Penal%20Code%2012021.pdf

[3] (e) Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025, subdivision (a) of Section 12031, or subdivision (a) of Section 12034, and (2) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025, subdivision (a) of Section 12031, or subdivision (a) of Section 12034, shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years. A violation of this subdivision shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision. Notwithstanding any other law, the forms required to be submitted to the department pursuant to this subdivision may be used to determine eligibility to acquire a firearm.

http://theacademy.ca.gov/docs/CA%20Penal%20Code%2012021.pdf

[4](g) Every person who purchases or receives, or attempts to purchase or receive, a firearm knowing that he or she is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

http://theacademy.ca.gov/docs/CA%20Penal%20Code%2012021.pdf

[5] http://ag.ca.gov/firearms/forms/pdf/cfl.pdf

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