What Is Constructive Possession of a Firearm in California?
Understanding Constructive Possession of a Firearm in California
The Second Amendment grants individuals the right to bear arms in the United States. However, under both federal and California law, that right is not absolute. People with felony convictions, certain misdemeanor convictions, or active restraining orders are legally prohibited from owning, possessing, or controlling firearms.
In California, unauthorized possession of a firearm can lead to serious criminal charges — even if the gun wasn’t found on your person at the time of arrest. This is where the legal concept of constructive possession comes into play. Prosecutors can pursue a firearm possession charge if they believe you had the ability and intent to exercise control over a gun, regardless of whether you ever physically touched it.
Facing constructive possession allegations is serious. A conviction can result in prison time, a permanent criminal record, the loss of firearm rights, immigration consequences, and barriers to employment or professional licensing.
Understanding how constructive possession works — and how prosecutors try to build these cases — is crucial if you are under investigation or have already been charged.
What Does Constructive Possession of a Firearm Mean
In California, you can be charged with firearm possession even if the weapon was not physically found on you at the time of your arrest. This is because the law recognizes two types of possession:
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Actual possession — You physically have the firearm on your body, such as holding it in your hand, carrying it in your waistband, jacket, or backpack.
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Constructive possession — You do not physically hold the gun, but you have the ability and the intent to exercise control over it. For example, a gun hidden in your bedroom closet, glove compartment, or locked trunk could lead to a constructive possession charge if prosecutors believe you knew it was there and could access it.
Important:
The prosecution does not have to prove that you were holding or carrying the gun. They only need to show two things:
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You knew the firearm existed, and
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You had the ability to access or control it.
Constructive possession charges are often built on circumstantial evidence — and without a clear explanation, it can be easy for prosecutors to convince a jury that you “possessed” a firearm even when you never touched it. That’s why having an experienced defense attorney is critical in these cases.
How Prosecutors Try to Prove Constructive Possession
In constructive possession cases, prosecutors often use circumstantial evidence — meaning facts and clues that suggest you had control over the firearm. Common examples include:
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The gun was found in your home, bedroom, or personal safe.
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The gun was located in a car registered to you or where you were the only occupant.
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Your fingerprints, DNA, or personal items were found near the gun.
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You made statements acknowledging you knew about the gun.
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The firearm was found with your property (wallet, backpack, etc.).
Important:
Being near a gun is not automatically the same as possessing it. If several people had access to the area where the firearm was found, prosecutors have a harder job proving you personally exercised control over it.
Examples of Constructive Possession in California
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Example 1: You borrow a friend’s car and are pulled over. Police find a gun in the glove compartment. If they can prove you knew the gun was there and had control over it, you could be charged.
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Example 2: A gun is found under your bed during a probation search. Even if you weren’t holding it, the fact it was in your room — and you had ready access to it — can lead to constructive possession charges.
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Example 3: You live with roommates, and police find a firearm in a shared living room closet. Unless they can prove the gun was yours or under your specific control, it’s harder for prosecutors to prove constructive possession.
What Are the Penalties for Firearm Possession in California?
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Unlawful possession of a firearm (Penal Code 29800)
Felony charge for individuals prohibited from owning guns, such as convicted felons or those convicted of certain misdemeanors.
Penalty: 16 months, 2 years, or 3 years in state prison. -
Possession of a concealed firearm (Penal Code 25400)
This offense can be charged as either a misdemeanor or a felony depending on the circumstances.
Misdemeanor Penalty: Up to 1 year in county jail.
Felony Penalty: Up to 3 years in state prison. -
Possession of a loaded firearm (Penal Code 25850)
Carrying a loaded firearm in public without lawful authorization.
Misdemeanor Penalty: Up to 1 year in county jail.
Felony Penalty: Up to 3 years in prison.
If you are caught with a firearm while on probation, parole, or subject to a restraining order, the penalties can escalate significantly — often resulting in mandatory prison time and additional charges.
Additional Consequences of a Firearm Conviction
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A lifetime ban on owning or possessing firearms
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Loss of voting rights (for felony convictions)
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Serious obstacles to securing employment or housing
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Potential immigration consequences for non-citizens, including deportation or inadmissibility
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Difficulty obtaining or maintaining professional licenses
How to Defend Against Constructive Possession Charges
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Lack of Knowledge:
You did not know the firearm was present. Without proof that you knew about the gun, prosecutors cannot establish possession. -
Lack of Control or Access:
You did not have the ability to exercise control over the firearm — for example, it was locked away or otherwise inaccessible to you. -
Shared Access:
Other people had equal access to the location where the firearm was found (such as roommates or guests), making it difficult to prove exclusive control. -
Illegal Search and Seizure:
If law enforcement violated your Fourth Amendment rights during the search (e.g., no valid warrant, exceeding the warrant’s scope, lack of probable cause), evidence of the firearm may be suppressed, leading to dismissal. -
Third-Party Ownership:
In some cases, the firearm may legally belong to someone else living in the home or using the vehicle. Demonstrating lawful ownership by another party can weaken the government’s case against you.
Our firm meticulously examines how the firearm was discovered, challenges assumptions about control or ownership, and aggressively pushes back against any weak or circumstantial arguments made by prosecutors. We explore every avenue — from unlawful search issues to rightful ownership defenses — to maximize your chances of a favorable outcome.
Arrested for Firearm Possession in Los Angeles? Talk to a Criminal Defense Attorney Today
If you are facing gun possession charges — especially those based on constructive possession allegations — it’s critical to act quickly. A conviction can seriously impact your freedom, your future, and your constitutional rights.
At The Law Offices of Arash Hashemi, our Los Angeles criminal defense attorney brings over 20 years of experience fighting firearm-related charges across Los Angeles County. When you contact our office, Attorney Hashemi will personally meet with you, carefully review your situation, and discuss a legal strategy focused on protecting your rights, your record, and your future.
Don’t leave your future to chance. Early intervention by a skilled attorney can make all the difference.
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