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winnre
06-25-2010, 5:16 PM
Okay if you have a felony wobbler then bet a 17b reducing it to a misdemeanor you can then own a firearm. We all pretty much know that. Except Alameda County. Interesting.


http://www.alameda.courts.ca.gov/selfhelp/Criminal/reduction.html

Alameda County Superior Court
Criminal Court Self Help -
Reduction of a Felony to a Misdemeanor
PC §17(b)(3)

Certain felonies can be charged as either a felony or a misdemeanor. If you are placed on felony probation for one of these offenses (i.e. felony/misdemeanor), the court may later reduce the felony to a misdemeanor under Penal Code §17(b)(3).

If the court grants a motion to reduce your offense to a misdemeanor under PC §17(b)(3), the crime becomes a misdemeanor “for all purposes.”

Exceptions:

¤ The conviction remains a strike under the “Three Strikes” law. PC §667(d)(1), §1170.12(b)(1).
¤ You may still be convicted of the felony offense of ex-felon in possession of a gun.
¤ The federal government may still consider your original conviction a felony under its gun possession statutes.
¤ The crime may still be considered a felony in terms of granting of denying a license to practice within several state-regulated professions.
¤ Each of the foregoing situations is an exception to “reduction to a misdemeanor” per PC §17(b)(3).

Contact the court location where your case was filed for procedure.

dantodd
06-25-2010, 6:00 PM
That looks right to me. That fact is why you need to have the conviction expunged after the reduction.

BigBamBoo
06-25-2010, 6:07 PM
............

winnre
06-25-2010, 6:10 PM
Oh no, I already got my 17b3 and have been purchasing firearms legally. So, why sell me a gun when it may be considered illegal to possess?

edwardm
06-25-2010, 7:04 PM
It's a nice little piece of fiction that Alameda county wrote there.

I'm 99% sure, since I see this happen TIME AND TIME AND TIME AGAIN, that whoever wrote the information is confusing and conflating 17(b)(3) and 1203.4. What you have on your side is a statute (PC 17(b)) that is very clear in its language, and several court decisions adhering to it's plain language meaning. Where the legislature means to circumvent 17(b) reductions, it does so explicitly.

For example, Government Code Section 1029 lists disqualifications for being a peace officer in California.

1029(a)(3) disqualifies:

(3) Any person who, after January 1, 2004, has been convicted of a
crime based upon a verdict or finding of guilt of a felony by the
trier of fact, or upon the entry of a plea of guilty or nolo
contendere to a felony. This paragraph shall apply regardless of
whether, pursuant to subdivision (b) of Section 17 of the Penal Code,
the court declares the offense to be a misdemeanor or the offense
becomes a misdemeanor by operation of law.


Oh no, I already got my 17b3 and have been purchasing firearms legally. So, why sell me a gun when it may be considered illegal to possess?

dantodd
06-25-2010, 7:06 PM
Oh no, I already got my 17b3 and have been purchasing firearms legally. So, why sell me a gun when it may be considered illegal to possess?

I didn't realize that, so you didn't get an expungement after your 17b reduction?

snobord99
06-25-2010, 7:15 PM
If I remember my federal cases correctly, "the federal government may still consider your original conviction a felony under its gun possession statutes" is true; therefore, "you may still be convicted of the felony offense of ex-felon in possession of a gun" is also true.

edwardm
06-25-2010, 7:16 PM
*Sigh*

The expungement under 1203.4 does NOTHING to restore or otherwise affect firearms rights (or in CA, firearms "privileges").

That looks right to me. That fact is why you need to have the conviction expunged after the reduction.

winnre
06-25-2010, 7:24 PM
For example, Government Code Section 1029 lists disqualifications for being a peace officer in California.

1029(a)(3) disqualifies:

(3) Any person who, after January 1, 2004, has been convicted of a
crime based upon a verdict or finding of guilt of a felony by the
trier of fact, or upon the entry of a plea of guilty or nolo
contendere to a felony. This paragraph shall apply regardless of
whether, pursuant to subdivision (b) of Section 17 of the Penal Code,
the court declares the offense to be a misdemeanor or the offense
becomes a misdemeanor by operation of law.

So, those with a conviction before 1/1/04 are not disqualified under 1029? This is not my original question but sure is interesting.

*Sigh*

The expungement under 1203.4 does NOTHING to restore or otherwise affect firearms rights (or in CA, firearms "privileges").

I have my 17b, and the page I noted refers to 17b, not 1203.4.

edwardm
06-25-2010, 7:25 PM
The Feds track the state's definition and disposition of the crime. In the case of California, see 18 USC 921(20)(B):

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The first part of (B) is what makes a 17(b)(3) effective in the eyes of Federal law. The last part of (B) is what makes 1203.4 INeffective in the eyes of Federal law. Once you obtain 17(b)(3) relief in California, all else being equal, the State classifies the offense as a misdemeanor "for all purposes".

Could we just let this die now? If you don't want to believe me, fine. Believe Chuck Michel.

http://www.calgunlaws.com/images/17b%20reduction%20for%20state-federal%20felony%20prohibitions%20-%20memo%20of%20law.pdf

He cites all the relevant caselaw I'm too lazy to pull out of Westlaw tonight.

If I remember my federal cases correctly, "the federal government may still consider your original conviction a felony under its gun possession statutes" is true; therefore, "you may still be convicted of the felony offense of ex-felon in possession of a gun" is also true.

edwardm
06-25-2010, 7:32 PM
So, those with a conviction before 1/1/04 are not disqualified under 1029? This is not my original question but sure is interesting.



I have my 17b, and the page I noted refers to 17b, not 1203.4.

Yes, I understand what the page refers to. I also understand that many people, including public defenders, DA's and private attorneys, never mind peace officers and Internet Commando Lawyers, routinely confuse the effects and language of PC 1203.4 with the effects and language of PC 17(b)(3).

Between Gilbreth, Gebremicael(probably off on the spelling there, but it's pre-Gilbreth and addresses similar facts) and Banks (the grandaddy of the 17(b) cases), we have a clearly established string of caselaw saying you're right, and Alameda county is either 1) wrong or 2) confused or 3) both 1 and 2.

The California AG's office actually argued against Gilbreth, saying 17(b)(3) didn't mean what it said and the court slapped them down. And while CalDOJ is often considered incompetent (wholly or borderline), each time you've DROS'd something, they've seen your record, they've seen the 17(b)(3) and they've green-lighted the transaction because 17(b)(3) does what it purports to do re: firearms.

I'm starting to grok while bwiese screams at the top of his lungs on this board. ;)

dantodd
06-25-2010, 11:24 PM
*Sigh*

The expungement under 1203.4 does NOTHING to restore or otherwise affect firearms rights (or in CA, firearms "privileges").

You know, there are less condescending ways to explain things.