Firearms Charges Are Prosecuted Aggressively in Both Courts
Few allegations change a criminal case like a firearm. A gun allegation can turn a drug or robbery offense into decades of exposure, add mandatory minimums that judges cannot reduce, and draw the attention of federal prosecutors looking to adopt local cases. Firearms charges are among the most aggressively prosecuted in both San Diego Superior Court and the Southern District of California.
Under initiatives like Project Safe Neighborhoods, local and federal agencies share information, and the U.S. Attorney's Office routinely adopts local gun arrests — especially when the person has a prior felony conviction. That means an arrest by San Diego police on a state charge can end as a federal indictment under 18 U.S.C. § 922(g), with sentencing under the federal guidelines and time served in a federal prison far from home.
Whether your case stays in state court or becomes federal, the defense starts the same way: how the police got the gun, whether the government can prove you possessed it and knew you possessed it, and whether your status actually made it illegal for you to have it. I have defended firearms cases in both systems and know where these charges are vulnerable.
A State Gun Arrest Can Become a Federal Case
If you have a prior felony conviction and were arrested with a firearm in San Diego, do not assume your case will stay in state court. Federal prosecutors adopt these cases regularly, and the federal penalties — up to 15 years for felon-in-possession, and a mandatory 15 years for armed career criminals — are severe. Early action, before the adoption decision is made, can make the difference.
Federal Firearms Charges
Federal gun law focuses on who may possess a firearm and what happens when a gun is connected to another crime. The most common federal firearms charges in San Diego are:
Felon in Possession of a Firearm
It is a federal crime for a person convicted of a felony to possess any firearm or ammunition that has traveled in interstate commerce — a threshold almost every gun meets. Section 922(g) also bars possession by fugitives, unlawful drug users, persons subject to certain restraining orders, persons convicted of a misdemeanor crime of domestic violence (the Lautenberg Amendment), and most non-citizens unlawfully present. The government must prove you knew you possessed the gun and knew of your prohibited status.
Firearm During a Drug Crime or Crime of Violence
Using, carrying, or possessing a firearm in furtherance of a federal drug trafficking crime or crime of violence adds a mandatory consecutive sentence: 5 years for possession, 7 for brandishing, and 10 for discharging — and 25 years for a defendant who already has a final prior § 924(c) conviction. These terms stack on top of the sentence for the underlying crime and on top of each other, and the judge has no discretion to go lower. A single drug case with a gun can become decades in prison.
Armed Career Criminal Act (ACCA)
A felon in possession with three prior convictions for a violent felony or serious drug offense faces a mandatory minimum of 15 years — no matter how old those convictions are. What counts as a violent felony is heavily litigated, and challenging whether the priors actually qualify is often the most important defense in an ACCA case.
Straw Purchases and False Statements
Buying a gun for someone else (a 'straw purchase') or lying on the ATF Form 4473 when buying from a licensed dealer is a federal felony carrying up to 15 years. These cases often involve boyfriends, girlfriends, and family members who believed they were doing something legal.
National Firearms Act (NFA) Violations
Possessing a machine gun, silencer, short-barreled rifle or shotgun, or other NFA-regulated item without the required registration and approval is a federal felony carrying up to 10 years per count. Conversion devices and unregistered parts can create liability even when the person never assembled a complete weapon.
California Firearms Charges
California has some of the most extensive gun laws in the nation. The most common state charges I defend in San Diego are:
Felon or Addict in Possession
A person convicted of a felony — or addicted to a narcotic — may not own, possess, or control a firearm in California. It is a felony carrying 16 months to 3 years in county prison. Possession of ammunition by a prohibited person is charged separately under Penal Code § 30305.
Carrying Concealed or Loaded in Public
Carrying a concealed firearm without a license (Penal Code § 25400) or a loaded firearm in a public place (§ 25850) are usually misdemeanors — but become felonies when the person has prior convictions, is on a gang file, or the gun is not registered to them. A car search or traffic stop can turn into a felony filing.
Assault Weapons
California bans possessing, selling, or manufacturing 'assault weapons' defined by model and by features — a definition that traps gun owners who bought legally in other states or configured a rifle without realizing they crossed the line. Possession under § 30605 is a wobbler carrying up to 3 years.
Firearm Enhancements: 10-20-Life
Using a gun during a state felony adds mandatory years. Personal use of a firearm under § 12022.5 adds 3 to 10 years. For specified felonies, § 12022.53 — the 'use a gun and you're done' law — adds 10 years for using a gun, 20 for firing it, and 25-to-life for firing and causing great bodily injury or death. These enhancements often exceed the sentence for the underlying crime.
Concealed Carry Permits After Bruen
After the Supreme Court's Bruen decision, California became a shall-issue state for concealed carry permits under § 26150, though the process remains slow and some denials and conditions are challengeable. Carrying without a permit is still a crime, but the legal landscape has shifted — and some carrying charges deserve a fresh look under the new doctrine.
Defenses in Firearms Cases
Gun cases are won on the details: how the gun was found, whether the government can connect the defendant to it, and whether the prohibition really applies. The defenses I raise most often are:
Fourth Amendment Challenges to the Stop and Search
Most guns are discovered in car searches, home searches, and pat-downs — and each must satisfy the Fourth Amendment. An unlawful traffic stop, a coerced consent search, a warrantless search of a home, or a defective warrant can get the gun — and the whole case — suppressed. I litigate suppression motions aggressively because winning one usually ends the case.
Challenging Possession and Knowledge
Possession can be actual or constructive, but the government must prove you controlled the gun and knew it was there. A gun found in a shared car, someone else's home, or a common area is not automatically yours. Mere presence near a firearm is not possession, and fingerprints or DNA are often not where the prosecution expected. For federal felon-in-possession, the government must also prove you knew you were a convicted felon.
Challenging Prohibited Status or the Predicate
Every prohibited-person possession charge depends on the underlying conviction or status. Old convictions were sometimes restored, reduced, or vacated; some out-of-state convictions do not qualify as predicate felonies; and some prohibitions turn on elements the prior conviction does not have. If the predicate falls, the possession charge falls with it.
Second Amendment Defenses After Bruen and Rahimi
NYSRPA v. Bruen changed how courts evaluate gun laws, and United States v. Rahimi upheld one prohibition while leaving as-applied challenges open. Since then, defendants have successfully challenged some applications of § 922(g) — particularly against non-violent offenders — and the courts of appeals remain divided. This is a fast-moving area of law, and every prohibited-person client deserves an assessment of whether their prosecution can be challenged constitutionally.
Momentary Possession and Justification in State Court
California law recognizes narrow defenses for the person who briefly holds a gun to dispose of it, takes it from someone in self-defense, or turns it over to police. Where the facts support it, transitory possession and justification can defeat a possession charge that otherwise looks open-and-shut.
Firearms Penalties and Sentencing
Gun sentences combine the penalty for the possession charge with any enhancement — and in federal court, the sentencing guidelines do much of the work:
Federal Penalties
Since the Bipartisan Safer Communities Act of 2022, felon-in-possession under § 922(g) carries up to 15 years in federal prison. The base guideline for firearms offenses, § 2K2.1 of the U.S. Sentencing Guidelines, is calibrated to the defendant's criminal history, the type of firearm, and whether the gun was stolen or had an obliterated serial number — small facts that move the range by years. Section 924(c) counts stack consecutively to everything else, and the ACCA imposes a mandatory 15 years. There is no parole in the federal system.
California Penalties
In state court, felon-in-possession under PC § 29800 carries 16 months, 2 years, or 3 years in county prison, while carrying offenses range from misdemeanors to felonies depending on priors and the gun's registration. Enhancements dominate the picture: § 12022.5 adds 3, 4, or 10 years for personal use of a firearm, and § 12022.53 adds 10, 20, or 25-to-life. Challenging or negotiating the enhancement is often where a state gun case is won or lost.
Immigration and Collateral Consequences
For non-citizens, a firearms conviction can be catastrophic regardless of the sentence: firearms offenses are a standalone ground of deportability under federal immigration law, and an aggravated felony conviction can mean near-certain removal. I evaluate every possible resolution for its immigration impact before advising a non-citizen client to accept it. A gun conviction can also end jobs, housing, and custody — consequences the defense must weigh alongside custody time.
Why Choose Me for Your Firearms Case
Firearms cases reward experience on both sides of the state-federal divide. I spent my career in federal court, where the most severe gun charges are filed, and I practice regularly in the San Diego County courts where most gun arrests begin.
If you have been arrested or are under investigation for a firearms offense in San Diego County — or anywhere in California or federal court — contact me for a free, confidential consultation.
Firearms Frequently Asked Questions
Can a felon ever legally possess a firearm?
Not while the prohibition applies — possession of even one gun or one bullet is a crime. Some people can remove the prohibition: certain convictions can be reduced from a felony to a misdemeanor where the law allows, or pardoned by the governor, and a narrow category of federal convictions can be restored. Until rights are formally restored, the answer is no — and 'I didn't know' is rarely a defense, though the government must prove you knew your status.
What is a § 924(c) charge?
It is a federal charge that adds a mandatory, consecutive sentence when a firearm is used, carried, or possessed in furtherance of a drug trafficking crime or crime of violence: 5 years for possession, 7 for brandishing, 10 for discharging, and 25 for a defendant who already has a final prior § 924(c) conviction. 'Consecutive' means it adds on top of the sentence for the main crime, and the judge cannot reduce it.
Will my state gun case go federal?
Possibly. Under Project Safe Neighborhoods, federal prosecutors adopt local gun arrests — most often when the defendant has a prior felony conviction, gang ties, or a related drug case. Adoption usually happens early, sometimes before the first state court date. A lawyer experienced in both systems can assess the risk and, in some cases, influence where the case is filed.
Can my gun rights be restored?
Sometimes. In California, reducing a 'wobbler' felony to a misdemeanor under PC § 17(b), where the offense allows it, or receiving a gubernatorial pardon can restore firearm rights. Note that an expungement under PC § 1203.4, on its own, does not restore firearm rights. Federally, restoration generally requires a pardon or state relief that satisfies federal requirements. The analysis is conviction-specific — it is worth reviewing your record before assuming the ban is permanent, and never assume you are restored without confirming it.
The gun wasn't mine. Can I still be convicted?
Ownership is not the standard — possession is. The government must prove you controlled the gun and knew it was there. A firearm in a shared car or home, under a passenger's seat, or in a common space may not be your possession at all, and mere presence near a gun is not a crime. Even so, do not consent to searches or explain the gun to police; let your lawyer develop the facts.
What are the penalties for a first firearms offense?
It depends on the charge and the forum. A first-time California carrying offense can be a misdemeanor with probation, while a first-time felon-in-possession in federal court faces up to 15 years with a guideline range driven by your history and the firearm. Enhancements — a stolen gun, an obliterated serial number, a related drug offense — raise the exposure faster than anything else. An early case review is the best way to know where you actually stand.