Cal Pen Code § 12021
(2004)
§ 12021. Possession of firearm by convicted felon or other specified
persons; Exemptions
(a) (1) Any person who has been convicted of a felony under the
laws of the United States, of 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, 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.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 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.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6, when that
conviction results from certification by the juvenile court for prosecution as
an adult in an adult court under Section 707 of the Welfare and Institutions
Code, who owns or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.
(c) (1) 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, 417.1, 417.2, 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 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).
(2) Any person employed as a peace officer described in
Section 830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm, who is
subject to the prohibition imposed by this subdivision because of a conviction
under Section 273.5, 273.6, or 646.9, may petition the court only once for
relief from this prohibition. The petition shall be filed with the court in
which the petitioner was sentenced. If possible, the matter shall be heard
before the same judge that sentenced the petitioner. Upon filing the petition,
the clerk of the court shall set the hearing date and shall notify the
petitioner and the prosecuting attorney of the date of the hearing. Upon making
each of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the prohibition,
or otherwise grant relief from the prohibition as the court deems appropriate:
(A) Finds by a preponderance of the evidence that the
petitioner is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited
class as specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence that the
petitioner is a person described in Section 8100 or 8103 of the Welfare and
Institutions Code.
(C) Finds that the petitioner does not have a previous
conviction under this subdivision no matter when the prior conviction occurred.
In making its decision, the court shall consider the
petitioner's continued employment, the interest of justice, any relevant evidence,
and the totality of the circumstances. The court shall require, as a condition
of granting relief from the prohibition under this section, that the petitioner
agree to participate in counseling as deemed appropriate by the court. Relief
from the prohibition shall not relieve any other person or entity from any
liability that might otherwise be imposed. It is the intent of the Legislature
that courts exercise broad discretion in fashioning appropriate relief under
this paragraph in cases in which relief is warranted. However, nothing in this
paragraph shall be construed to require courts to grant relief to any
particular petitioner. It is the intent of the Legislature to permit persons
who were convicted of an offense specified in Section 273.5, 273.6, or 646.9 to
seek relief from the prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by
this subdivision because of a conviction of an offense prior to that offense
being added to paragraph (1) may petition the court only once for relief from
this prohibition. The petition shall be filed with the court in which the
petitioner was sentenced. If possible, the matter shall be heard before the
same judge that sentenced the petitioner. Upon filing the petition, the clerk
of the court shall set the hearing date and notify the petitioner and the
prosecuting attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the prohibition, impose
conditions on reduction or elimination of the prohibition, or otherwise grant
relief from the prohibition as the court deems appropriate:
(A) Finds by a preponderance of the evidence that the
petitioner is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited
class as specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence that the
petitioner is a person described in Section 8100 or 8103 of the Welfare and
Institutions Code.
(C) Finds that the petitioner does not have a previous
conviction under this subdivision, no matter when the prior conviction
occurred.
In making its decision, the court may consider the interest
of justice, any relevant evidence, and the totality of the circumstances. It is
the intent of the Legislature that courts exercise broad discretion in
fashioning appropriate relief under this paragraph in cases in which relief is
warranted. However, nothing in this paragraph shall be construed to require
courts to grant relief to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted relief
pursuant to paragraph (2) or (3) shall be immune from any liability for false
arrest arising from the enforcement of this subdivision unless the person has
in his or her possession a certified copy of the court order that granted the
person relief from the prohibition. This immunity from liability shall not
relieve any person or entity from any other liability that might otherwise be
imposed.
(d) (1) Any person who, as an express condition of probation,
is prohibited or restricted from owning, possessing, controlling, receiving, or
purchasing a firearm and who owns, purchases, receives, or has in his or her
possession or under his or her custody or control, any firearm but who is not
subject to subdivision (a) or (c) 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 provided by the Department
of Justice, shall notify the department of persons subject to this subdivision.
The notice shall include a copy of the order of probation and a copy of any
minute order or abstract reflecting the order and conditions of probation.
(2) For any person who is subject to subdivision (a), (b), or
(c), the court shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant prohibited by
this section from owning, purchasing, receiving, possessing or having under his
or her custody or control, any firearm. The notice shall inform the defendant
of the prohibition regarding firearms and include a form to facilitate the
transfer of firearms. Failure to provide the notice shall not be a defense to a
violation of this section.
(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,
or 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, or any offense enumerated in paragraph
(1) of subdivision (c) 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.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the
(1) Conviction of a like offense under
(2) The defendant was sentenced to a federal correctional
facility for more than 30 days, or received a fine of more than one thousand
dollars ($ 1,000), or received both punishments.
(g) (1) 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
issued pursuant to Section 136.2 or 646.91 of this code, or by 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.
(2) Every person who owns or possesses 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 by
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, by a fine not exceeding
one thousand dollars ($ 1,000), or by both that imprisonment and fine.
(3) Judicial Council shall provide notice on all protective
orders that the respondent is prohibited from owning, possessing, purchasing,
receiving, or attempting to purchase or receive a firearm while the protective
order is in effect . The order shall also state that the firearm shall be
relinquished to the local law enforcement agency for that jurisdiction or sold
to a licensed gun dealer, and that proof of surrender or sale shall be filed
within a specified time of receipt of the order. The order shall state the
penalties for a violation of the prohibition. The order shall also state on its
face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of
this subdivision, the court shall impose probation consistent with the
provisions of Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e)
is justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a
person who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was
necessary to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement
agency, it was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to the law
enforcement agency that he or she is transporting the firearm to the law
enforcement agency for disposition according to law.
(2) Upon the trial for violating subdivision (a), (b), (c),
(d), or (e), the trier of fact shall determine whether the defendant was acting
within the provisions of the exemption created by this subdivision.
(3) The defendant has the burden of proving by a
preponderance of the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
(i) Subject to available funding, the Attorney General,
working with the State Judicial Council, the California Alliance Against
Domestic Violence, prosecutors, and law enforcement, probation, and parole
officers, shall develop a protocol for the implementation of the provisions of
this section. The protocol shall be designed to facilitate the enforcement of
restrictions on firearm ownership, including provisions for giving notice to
defendants who are restricted, provisions for informing those defendants of the
procedures by which defendants shall dispose of firearms when required to do
so, provisions explaining how defendants shall provide proof of the lawful
disposition of firearms, and provisions explaining how defendants may obtain
possession of seized firearms when legally permitted to do so pursuant to this
section or any other provision of law. The protocol shall be completed on or
before January 1, 2005.