You do not have to be holding a gun for the prosecution to charge you with possessing one. California law recognizes what courts call constructive possession, a theory that lets prosecutors charge someone with illegal firearms possession when the gun was found in a location they had access to, not physically on their person. This charge comes up regularly in our criminal defense practice in San Bernardino, in cases involving shared apartments, cars with multiple occupants, storage units, and shared bedroom spaces.
The theory sounds straightforward but proving it is harder than most defendants realize, and defending against it is more viable than they expect.
What the Prosecution Has to Establish
Two things must be proven beyond a reasonable doubt for a constructive possession charge to hold up. First, the defendant knew the firearm was present. Second, the defendant had dominion and control over the firearm or over the area where it was found. Both elements are required. Knowledge alone is not enough, and control without knowledge is not enough either.
That two-part structure is where these cases often fall apart for the prosecution. A gun in a glove compartment does not automatically prove the driver knew it was there. A firearm found in a bedroom closet shared by multiple occupants does not prove any one person had exclusive control over it. Those questions about who actually knew what, and who actually controlled what, are the core of the defense.
How Prosecutors Build the Case
The evidence prosecutors rely on in constructive possession cases typically comes from a few categories. The defendant's physical proximity to the firearm at the time of the search matters. Documented access to the location, such as a lease or key, gets introduced. Fingerprints or DNA on the weapon is strong evidence when it exists. Statements made to police after the arrest are frequently the most damaging piece. Text messages, call records, and occasionally co-defendant testimony round out the prosecution's picture.
Each of those sources has vulnerabilities. Fingerprints prove someone touched an object at some point. They do not prove when, or that the person knew what they were touching. A name on a lease does not prove the person knew a firearm was hidden somewhere inside the property. Co-defendant testimony almost always comes from someone who made a deal with the prosecution to reduce their own exposure, and we examine the motivation behind that testimony carefully. The same analytical approach we apply to possession of a controlled substance applies directly to firearm cases. The legal framework is identical.
When Multiple People Face the Same Charge
Multi-defendant constructive possession cases are genuinely complicated. California law permits the prosecution to charge all of them simultaneously, on the theory that multiple people can share dominion and control over the same object at the same time. That theory creates situations where someone with no meaningful connection to a firearm faces the same charge as the person who actually controlled it.
Defending a client in that situation requires more than arguing they did not have the gun. The defense has to build an affirmative account of why the evidence supports someone else's connection to the firearm and not this defendant's. That means working through the physical layout of the scene, who was sitting where, whose belongings were in which location, and exactly what each person said or did not say when law enforcement arrived. Tammy Higgins has tried more than 100 jury trials, including homicide cases. Cases with multiple defendants and overlapping possession theories take serious preparation, and we approach them with the same depth we bring to every serious felony we take to trial.
The Search That Found the Firearm
A lot of constructive possession charges begin with a search that had legal problems. Traffic stops that became extended vehicle searches. Probation compliance checks that went beyond what the probation terms authorized. Residential searches executed under warrants that never established probable cause to search. The way law enforcement found the firearm can matter just as much as what they found.
If the search that produced the firearm violated the Fourth Amendment, the evidence may be suppressible. Without the gun, the prosecution cannot proceed on the possession charge. We file suppression motions whenever the circumstances of the search raise a genuine constitutional question. In our criminal defense work across San Bernardino, Fontana, Rialto, Ontario, Colton, and Rancho Cucamonga, unlawful search problems come up in possession cases more often than most defendants expect when they first walk in.
Sentencing and What Comes Next
The penalty for illegal gun possession under PC 29800 is 16 months, two years, or three years in California state prison as a base term. Prior convictions and other aggravating factors increase that exposure. Federal charges under 18 U.S.C. 922(g) are also possible for prohibited persons, and federal sentencing for this offense is typically longer than what California state court would impose.
For people with prior convictions looking at their post-conviction options, expungement under PC 1203.4 may be available where the sentence was probation rather than prison. For older sentences that no longer reflect current sentencing standards, resentencing under AB 600 may provide a path to a reduced term. Tammy Higgins spent 16 years as a San Bernardino County public defender and has handled post-conviction relief for clients with firearm convictions throughout the region. The right option depends on the specific conviction record, the original sentence, and what current California law allows in that particular situation.
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