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
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

Unlawful user of controlled substance under federal law

ATF issued an Open Letter to gun dealers saying that dealers could not legally sell firearms to users of medical marijuana. Even if medical marijuana may be legal under a state's law, it is still considered a Schedule I Controlled Substance under federal law and thus illegal to use. The Open Letter further ruled that a medical marijuana card would be sufficient to have reasonable cause to believe one is an unlawful user of a controlled substance. The 9th Circuit in Wilson v. Lynch (9th Cir. 2016, No. 14-15700) held that the ATF's interpretation of the law under the Open Letter was constitutional under the Second Amendment and the Fifth Amendment.

Restoration of Rights

Reduction to misdemeanor under Penal Code section 17, subdivision (b)

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.) Likewise, a felony from a foreign jurisdiction, such as Oregon, that has been reduced under that state's law to a misdemeanor are considered misdemeanors for gun prohibition purposes. (People v. Lewis (2008) 164 Cal.App.4th 533.) However, if it's still a felony, even if that state provides a restoration of firearm rights, that foreign felony conviction still prevents possession of firearms in California. (People v. Shear (1999) 71 Cal.App.4th 278.)

Reduction to misdemeanor under Prop 47, Penal Code section 1170.18

A reduction of a felony to a misdemeanor under Prop 47 does not restore gun rights as Penal Code section 1170.18, subdivision (k) explicitly states that "that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."

There are a couple of arguments that can be made. One is that PC1170.18(k) only refers to "resentencing." A "resentencing" refers to the procedure in PC1170.18(a) and (b)in which a person currently serving a sentence petitions to be resentenced for a misdemeanor. Person who have completed a sentence instead apply to have their convictions "designated" as a misdemeanor. PC1170.18(k) explicitly refers to both resentencing and designation, so the prohibition on guns should only apply to resentencing under PC1170.18(a) and (b) and not to designations under PC1170.18(f) and (g). Don't expect California Department of Justice to look upon this argument favorably.

Another argument that may be made is that PC1170.18(k)'s continued ban on misdemeanants violates Equal Protection. Under Prop 47, there are two similarly situated groups that are being treated differently. One group are people convicted of Prop 47-eligible offenses before November 5, 2014. That group are denied firearm rights. The other group are those people convicted of Prop 47 offenses after November 5, 2014. Their cases start off as misdemeanors and end as misdemeanors. They never trigger the prohibition for felons. So people convicted of crimes before Nov. 5, 2014 and people convicted of crimes after Nov. 5, 2014, are being treated differently. Since this is not about a suspect class, this would be subject to rational basis review.

Federal law

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. United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987); United States v. Pruner, 606 F.2d 871 (9th Cir. 1979); United States v. Houston, 574 F.2d 104 (9th Cir. 1976). FOPA changed the definition of conviction of a felony to be in accords with state law. 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. One Post-FOPA cases seem to indicate that federal courts will look towards the maximum penalty of the crime, regardless of what was actually imposed. Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2012).

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. § 921

(a) As used in this chapter—

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B)any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

(33)

(A) Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

(B)

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

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.