Actual and Constructive Gun Possession in California and Implications for Former Felons

One of the constitutional rights that are permanently relinquished when an individual is convicted of a felony is the right to bear arms. A person who has a felony on his record is likely aware that the consequences can be more state time if caught with a weapon. However, what constitutes possession is open to some gray areas, particularly in regard to the distinction between actual and constructive possession.

California Penal Code 12021 prohibits anyone who has been convicted of a felony from purchasing, receiving, owning or possessing a firearm. Much of the code may seem straightforward, but what really, for instance, constitutes purchasing a weapon? If a person buys the contents of a storage locker at auction sight-unseen and a gun happens to be in the locker, has he violated the law? Ownership has gray areas as well. If your wife owns a firearm – which under California family law is considered community property – and you are convicted of a felony, does this automatically leave you in violation of the law?

What constitutes possession of a gun is also more complex than one may assume. The law distinguishes between actual and constructive possession. Actual possession is defined as direct physical custody, care, or control. Constructive possession, on the other hand, is often used to establish intent to possess. An individual in this case has the ability and/or intent to exercise dominion and control over the weapon. An illustration may help clarify this distinction: If you are stopped by an officer while driving, and a handgun is found under the passenger seat, you are considered to be in actual possession. If, however, a passenger is with you, you may be charged with constructive possession.

Even constructive possession leaves room for interpretation. You may not be aware that the weapon was under the seat. Perhaps you just bought the car recently, and the gun was there at purchase. Indeed, what might have seemed a fairly clear case of constructive possession, People v. Sifuentes, was appealed and the previous conviction overturned. The defendant was arrested in a motel room which he shared with an associate. Police raided the room and found a semiautomatic handgun under the mattress adjacent where the defendant slept. The appellate court found that because the prosecution failed to prove beyond a reasonable doubt that either defendant was about to use the gun in a defensive or offensive manner, there was no foundation upon which to establish that either had the right or intention to control the gun.

It is important to note that the defendant won his case, but only after appeal. Because appellate issues can be extremely complex and difficult, it is imperative that you have an experienced attorney in your corner in order to prevail. Similarly, you will have the best chance of winning a criminal weapons charge if you hire strong legal counsel.

The attorneys at Wallin & Klarich have over 40 years’ experience defending individuals just like you. For all types of criminal defense matters call us today at 1-888-749-0034 or visit us online at www.wklaw.com.