Firearms

Definitions

Loaded

"Loaded" while committing a felony means both the firearm and the ammunition are in the immediate possession of the person. "Loaded" in general means ammunition attached to the firearm under PC16840(b), former PC12031. People v. Clark (1996) 45 Cal.App.4th 1147, construed former PC12031's definition of loaded to mean the ammunition is in a place from which it can be fired. At issue in Clark were shotgun shells in a buttstock holder. The shotgun shells would have to be moved by hand from the buttstock holder into the shotgun's magazine in ordered to be fired.

Loss of rights

Firearms-related misdemeanor convictions

Under Penal Code section 29800, the following misdemeanor convictions are a lifetime ban from possessing firearms:

Code	Crime	Notes
PC245(a)(2)	Assault with a firearm
PC245(a)(3)	Assault with a machine gun, assault weapon, or a .50BMG rifle
PC245(d)	Assault with a firearm on a peace officer or firefighter
PC246	Malicious discharge of firearm at inhabited dwelling, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, or inhabited camper
PC417(a)(2)	Two or more convictions of brandishing a firearm
PC417(c)	Brandishing a firearm in the presence of a peace officer

Restoration of Rights

If a person is prohibited from possessing firearms because of a felony conviction, then their rights may be restored if that felony is reduced to a misdemeanor. A felony reduced to a misdemeanor under PC17(b)(3) is a misdemeanor for all purposes. (Gebremicael v. California Com. on Teacher Credentialing (2004) 117 Cal.App.4th 1477, 1485.) A felony which has been reduced to a misdemeanor under PC17(b) cannot be a predicate felony for felon in possession under PC29800, former PC12021. (People v. Culbert (2013) 218 Cal.App.4th 184; People v. Gilbreth (2007) 156 Cal.App.4th 53, 57.)

I personally consider it an open question whether a person whose felony has been reduced to a misdemeanor under PC17(b)(3) is considered a convicted felon or misdemeanant for purposes of federal law. Various 9th Circuit cases before the passage of the Firearms Owners Protection Act (FOPA) in 1986 held that even after a successful PC17(b), a reduced wobbler was still considered a felony. FOPA changed the definition of conviction of a felony to be in accords with . It is unclear if FOPA changed only whether or not someone was convicted is defined by state law, or changed whether or not a person was convicted of a felony offenses is defined by state law. Post-FOPA cases seem to indicate that federal courts will look towards the maximum penalty of the crime, regardless of what was actually imposed.

Statutes

Former Penal Code section 12031

(a)

(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

(f) As used in this section, "prohibited area" means any place where it is unlawful to discharge a weapon.

(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm.

(h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.

(j)

(1) Nothing in this section is intended to preclude the carrying of any loaded firearm, under circumstances where it would otherwise

be lawful, by a person who reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. As used in this subdivision, "immediate" means the brief interval before and after the local law enforcement agency, when reasonably possible, has been notified of the danger and before the arrival of its assistance.

(k) Nothing in this section is intended to preclude the carrying of a loaded firearm by any person while engaged in the act of making or attempting to make a lawful arrest.

(l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.

Penal Code section 16840

(a) As used in Section 25800, a firearm shall be deemed to be “loaded” whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person.

(b) As used in Chapter 2 (commencing with Section 25100) of Division 4 of Title 4, in subparagraph (A) of paragraph (6) of subdivision (c) of Section 25400, and in Sections 25850 to 26055, inclusive,

(1) A firearm shall be deemed to be “loaded” when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm.

(2) Notwithstanding paragraph (1), a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

Fish and Game Code 2006

(a) It is unlawful to possess a loaded rifle or shotgun in any vehicle or conveyance or its attachments which is standing on or along or is being driven on or along any public highway or other way open to the public.

(b) A rifle or shotgun shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in the firing chamber but not when the only cartridges or shells are in the magazine.

(c) The provisions of this section shall not apply to peace officers or members of the Armed Forces of this state or the United States, while on duty or going to or returning from duty.

18 U.S.C. § 922

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.