Fighting a Constructive Possession of a Firearm Charge in California
How to Beat a Constructive Possession of a Firearm Charge
Facing a constructive possession of a firearm charge can feel overwhelming, especially if the gun wasn’t actually found on you. In California, prosecutors don’t need to prove you had a weapon in your hand to file charges. Instead, they often rely on the theory of “constructive possession”—claiming you knew about the firearm and had the ability to control it, even if it was stored in a car, bedroom, backpack, or other shared space.
But being near a gun is not enough for a conviction. To prove constructive possession beyond a reasonable doubt, the prosecution must show both knowledge of the firearm and control over it. These are not always easy to establish, and they open the door for strong defenses.
At The Law Offices of Arash Hashemi, we have over 20 years of experience defending clients in Los Angeles against firearm and weapons charges. We know how to challenge weak evidence, attack flawed assumptions of possession, and fight for dismissal when prosecutors can’t meet their burden.
What Does California Consider “Possession” of a Firearm?
California law recognizes two forms of firearm possession under statutes such as:
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Penal Code § 29800(a)(1) – Felon or prohibited person in possession of a firearm
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Penal Code § 25400 – Carrying a concealed firearm
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Penal Code § 25850 – Carrying a loaded firearm in public
To convict, the prosecution must prove possession, which can take two forms:
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Actual possession – The firearm is physically on you (for example, in your hand, waistband, or backpack you are carrying).
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Constructive possession – The firearm is not on your person, but prosecutors argue that you knew it was there and had the ability to control it (such as in a car glove box, bedroom closet, or shared workspace).
Importantly, mere proximity to a firearm is not enough to convict. Simply being in the same room or vehicle where a gun is found does not establish constructive possession. The state must connect you directly to both knowledge of the firearm’s presence and the ability to exercise control over it.
This distinction is critical when you are trying to understand how to beat a constructive possession of a firearm charge—because if prosecutors cannot prove knowledge and control, the case may fall apart.
Common Situations That Lead to Constructive Possession Charges
Prosecutors often file constructive possession cases when a firearm is discovered in a place that more than one person uses. Typical scenarios include:
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A handgun found in the glovebox, center console, or under the seat of a borrowed or shared car
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A firearm stored in a closet, garage, or bedroom used by multiple people in a home
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A gun discovered in a backpack, duffel bag, or luggage that others had access to
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A weapon registered to someone else but located in a shared area
These situations immediately raise doubts:
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Did you actually know the gun was there?
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Did you have the ability to control it?
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Or was the firearm under someone else’s ownership or access?
Because the answers are rarely straightforward, these cases often turn on the credibility of witnesses, fingerprints, DNA evidence, or the absence of proof tying you to the weapon. That’s why understanding how to beat a constructive possession of a firearm charge often begins with challenging whether the prosecution can meet its burden on these two key elements: knowledge and control.
How to Beat a Constructive Possession of a Firearm Charge in California
Constructive possession cases are often built on shaky ground. To convict, prosecutors must prove not just that a firearm was nearby, but that you knew about it and had the ability to control it. A skilled defense attorney can attack those assumptions using several proven strategies:
Lack of Knowledge
If you didn’t know the firearm was present, you cannot be guilty of possession. This defense frequently applies in cases involving borrowed cars, ride-shares, or shared homes where others had equal or greater access to the weapon.
No Dominion or Control
Even if you were aware of a gun somewhere in the environment, the prosecution must also prove you had the right or ability to control it. If the firearm belonged to someone else, was locked away, or otherwise inaccessible, possession is not established.
Shared Access = Reasonable Doubt
When multiple people could have placed or accessed the firearm — in a living room, glovebox, or backpack — the state cannot simply guess. Reasonable doubt about ownership or control can be enough to defeat the charge.
Illegal Stop, Search, or Seizure
If police violated your constitutional rights, the firearm evidence may be thrown out. Examples include:
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A traffic stop without reasonable suspicion
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A search without probable cause or beyond the scope of a warrant
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Coerced consent during detention
Your attorney can file a motion to suppress under Penal Code § 1538.5. Without the gun itself, most constructive possession cases fall apart.
Problematic Statements or Phone Evidence
Prosecutors often try to use statements or digital data to tie someone to a firearm. But if police questioned you without proper Miranda warnings or pulled data from your phone without a valid warrant, that evidence can be excluded.
Proof Problems
Many cases crumble because the physical evidence doesn’t hold up. Common issues include:
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No fingerprints or DNA on the weapon
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Contradictory police reports
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Body-cam footage that undermines the officer’s testimony
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Sloppy chain of custody or lab work
Each weakness creates doubt — and in criminal court, doubt means the state cannot meet its burden of proof.
What Are the Penalties for a Constructive Possession of a Firearm Charge in California?
The consequences of a constructive possession case depend on the statute charged and your criminal history. California law treats firearm possession very seriously, even when the gun was not found directly on you.
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Penal Code § 29800 (Felon or Prohibited Person in Possession of a Firearm):
This is always a felony. A conviction can lead to years in state prison, a lifetime ban on possessing firearms, and significant collateral consequences. -
Penal Code § 25400 (Carrying a Concealed Firearm):
This can be filed as either a misdemeanor or felony (“wobbler”), depending on the facts. Penalties may include jail time, probation with strict search conditions, fines, and a criminal record that affects your employment and future. -
Penal Code § 25850 (Carrying a Loaded Firearm in Public):
Also a wobbler, this charge can result in jail or prison time, probation, fines, and loss of firearm rights if filed as a felony.
Beyond prison or jail time, a conviction can impact immigration status, professional licensing, and background checks for jobs or housing. For many people, these collateral consequences are just as damaging as the direct penalties.
This is why understanding how to beat a constructive possession of a firearm charge is critical. An experienced defense attorney can challenge the state’s case before it gets that far — often making the difference between walking away clean and living with a felony record.
Speak With a Los Angeles Criminal Defense Lawyer About Your Firearm Case
A constructive possession of a firearm charge can put your freedom and future on the line — but the right defense can make all the difference. These cases often turn on fine details like who had access to the weapon, whether you knew it was there, and if the police followed the law in their search. The earlier you have an experienced lawyer fighting for you, the better your chances of getting the charges dismissed, reduced, or resolved without a conviction.
Our Los Angeles criminal defense attorney has over 20 years of experience defending clients against serious firearm charges. Attorney Hashemi will personally review the facts of your case, explain your options, and build a tailored defense strategy to protect your rights.
The Law Offices of Arash Hashemi
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