MCGREGOR LAW CORP.
Southern California Criminal Defense
Frequently asked questions about:
WEAPONS LAWS IN CALIFORNIA
WHEN DO I HAVE TO GIVE UP MY GUN?
Arrest or Protective Order
Depending on the circumstances of your arrest, you may need to turn in your weapons. The most common example of this situation is if you are arrested for domestic violence, battery, or simply issued a restraining order. If properly issued and served, these restraining orders have an immediate effect on your gun ownership rights.
Certain restraining orders prohibit you from buying, possessing or receiving firearms. The law imposes criminal penalties for disobeying these court orders. These penalties can lead up to a felony conviction with three years in state prison plus a $1,000 fine. Even a misdemeanor conviction for violating a restraining order can cause a ten-year prohibition against firearms ownership. That order may require that you turn in your firearms. It is important that you read all official documents given to you by law enforcement or police. If you are unclear, ask the police officer serving you the restraining order if it prevents you from owning or possessing firearms. If you are not comfortable communicating with law enforcement, immediately contact an attorney, show them the document, and ask them to clarify what your status is.
It is a felony crime for a convicted felon to be in possession of a gun. The law states: Any person who has been convicted of a felony and who owns, purchases, receives, or has in his possession, or under his custody or control, any firearm is guilty of a felony. Cal. Penal Code §12021 (West)
A person can lose the right to possess a firearm subject to certain convictions, classes of persons, and some misdemeanors. Cal. Penal Code § 29805 (West)
Specific convictions that restrict firearm possession may include but not limited to:
Brandishing a weapon
Cal. Penal Code § 29805 (West)
Specified people that are restricted from possessing a firearm:
Under 18 years old
Prohibited by court order (like a protective order)
Prohibited by probation (as a condition of probation)
Prohibited by federal law to possess a firearm
Cal. Penal Code § 29805 (West)
WHAT IS CONSIDERED A "FIREARM" IN CALIFORNIA?
There are various California Laws regarding prohibitions of firearms, some include:
Storage, sale, manufacture, lease, transfers
Special rules relating to particular people
Special rules relating to particular types of firearms
A “firearm” includes:
Any weapon (including a starter gun) which will, is designed to, or can be converted to eject a bullet by the action of an explosive
The frame or receiver of any such weapon
Any firearm muffler or firearm silencer
Any destructive device
Cal. Penal Code § 29800 (West)
WHAT IS A “CONCEALED” WEAPON?
A person is guilty of carrying a concealed firearm when the person is doing so knowingly:
Within any vehicle under the person's control, or as an occupant
On the body or capable of being concealed on the body
Openly in a belt holster that is not concealed
Punishment for concealed weapon possession occurs when a person:
Previously convicted of any felony
Is active in a criminal street gang (felony)
In unlawful possession of the firearm
Within a class prohibited from possessing a firearm
Had knowledge it is stolen (felony), or firearm is stolen
Convicted of crime against a person, property, narcotics, dangerous drug violation or by imprisonment in a county jail for under 1 year, or by a fine under $1,000, or by both imprisonment and fine
Cal. Penal Code § 25400 (West)
WHAT WEAPONS ARE ILLEGAL IN CALIFORNIA?
Illegal weapons under California law are not limited to guns, and charges arising from illegal weapons are not something to take lightly. The list below is pursuant includes generally prohibited weapons to possess in California. Cal. Penal Code § 16590 (West)
Short-barreled rifle or shotgun
Containing flechette dart
Bullet with explosive agent
Camouflage firearm container
Military practice hand grenade
Multiburst trigger activator
HOW DO I GET MY GUN BACK FROM THE POLICE?
To determine if you may receive property back from police, the first question to ask yourself is why the police seized the property. Police, who seized property during an arrest, must provide you with a receipt.
Lawful justifications for police to seize property:
If a prosecutor will not voluntarily return property that was seized for evidence purposes after the case is over, McGregor Law may file a petition for return of legal property with the court.
If the property seized is considered contraband, police will not return it for any reason.
If Police seized the property for safekeeping, you have options for obtaining property back.
A. LEGR Application
Submit a Law Enforcement Gun Release (LEGR) application. A LEGR Application is appropriate in situations where your case resolved without you obtaining a conviction listed above:
Details about LEGR Application:
With the California Department of Justice, Bureau of Firearms
Available at http://ag.ca.gov/firearms/forms/pdf/legr.pdf
Pursuant to California Penal Code § 33855
Limited to firearm owner, while property is under law enforcement’s custody
Establishes eligibility to lawfully possess under state and federal law at time of submission
With a handgun return, owner must have a record on file in the Department of Justice’s Automated Firearms System (proving you legally the owner)
Fee begins at $20
Requires information about the firearm, handgun, agency that has it, owner
B. Motion to reduce felony to misdemeanor, California Penal Code §17b
If you were convicted of felony that disqualifies you from gun ownership McGregor Law may, under the correct circumstances and dependent on whether your felony qualifies, submit a motion to request a reduction of a felony conviction to a misdemeanor. This is accomplished pursuant to Penal Code section 17b.
Reducing a felony to a misdemeanor makes it a misdemeanor for all purposes, including for purposes of gun ownership. Case law states: "When a crime is punishable by state prison, fine, or imprisonment in county jail, it is a misdemeanor ‘for all purposes.’ The motion may be granted if there was not enough evidence to support a conviction of a firearm by a convicted felon, because the prior felony conviction for that charge has been reduced to a misdemeanor after successfully completing probation. Thus, under some circumstances, a defendant's possession of a firearm by a convicted felon may be reversed." Cal. Penal Code § 17 (West). People v. Gilbreth, 156 Cal. App. 4th 53, 57, 67 Cal. Rptr. 3d 10, 12 (2007)