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ventipossum
02-08-2011, 9:49 PM
Hello fellow Calgunners.

I just had a question pertaining to the legality issues for a person that has a misdemeanor charge on their criminal record.

Before anyone starts.... this is about a friend of mine and is not about ME.

Really. Seriously.

If anything, I'm guilty of being domestically violent towards the nachos I buy from 7-Eleven. Anyway.......



My friend was arrested last year (sometime in March 2010) for an apparent domestic violence disturbance towards his girlfriend. According to his arrest record, he allegedly battered his girlfriend while they were having an argument. During the argument, he allegedly threw his cell phone at her, and physically hit her (punched her) once. He was arrested several hours later, at his workplace, in front of his fellow employees and boss.

The end result was the following:

1) He had to sell his currently registered firearm within 5 days, by order of the court, until his actual arraignment was to happen. (He lost a lot of money on this one, as the firearm he had to sell was recently upgraded with lots of aftermarket parts)

2) Under order of the judge, he had to attend an "anger management" class which lasted 3 months (12 sessions) at a cost of $500.00

3) Upon completion of the "anger management" program, he was placed on 2 years probation. (I do not know what kind of probation, if there are specific types)

4) He was not ordered to pay any fines to the court or damages to any party.

5) He plead "no contest" to the charges.



---------------------------------

AFTERMATH:

He obviously broke up with her. As for the details, I have spoken to both he and his (now) ex-girlfriend around a couple of days after his arrest.

Here is what actually went down:

An argument did occur and a cell phone was thrown, but not by him. It was by the ex-girlfriend. He never physically struck her, but he did try to restrain her by holding her arms down, as she was physically hitting him (striking him in the face, chest with her closed fists and kicking him on his legs)

When he had enough of it, he simply told her to "calm the **** down..." and he then left for work.

He was then arrested at his workplace and accused of battering her by the arresting officer.

The arresting officer did not believe him when he said that he was the one being hit. Upon showing some of the scratches and bruises, the officer stated that he did not believe what he was seeing were bruise marks inflicted on him because he was a "delivery man who deals with bumps and bruises all the time...." and that "she has a couple of red marks on her arms, indicating a struggle...." and also that "there is no way she could have been able to do those things to you. She's just a small woman.....".

The ex-girlfriend was not present at the time of the arrest.

After his release from the overnight jail cell, he was ordered to sell his registered firearm.

When I saw him again, he told me what had happened in full detail and said that he never hit his (at the time) girlfriend.

She ended up calling me, out of the blue and told me what happened as well.

She pretty much confirmed everything that my friend said and that she was never hit by him. She also admitted that she was angry at him and that she was the one doing the hitting and that she called the police on him to "scare him".


----------------------------------

It's been about a year since he pleaded "no contest", and about 7-8 months since he completed the "anger management" program.

Is it possible for him to purchase a firearm? He wants to be able to defend himself and his family.

All serious answers are appreciated.

All humorous or snarky answers will be answered in a similar fashion.



Thank you.




Ventipossum

five.five-six
02-08-2011, 9:53 PM
5) He plead "no contest" to the charges.



ding ding ding!

you your friend may not pass go, do not collect $200, do not has a gun

Cokebottle
02-08-2011, 10:02 PM
Through a lengthy and expensive process, the right attorney MAY be able to have the charges cleared and petition to have his firearms rights restored.

But as it stands, he is a prohibited person and will remain so for the rest of his life.

I recommend that he contact either the Calguns Foundation, or one of the attorneys who typically work with CGN:

http://www.calguns.net/calgunforum/../images/ads30/Davis120x60.gif (http://www.calgunlawyers.com/) http://www.calguns.net/calgunforum/../images/ads31/Kilmer120x60.gif (http://www.dklawoffice.com/)

five.five-six
02-08-2011, 10:17 PM
NEVER plead guilty or no contest to any DV charge

ventipossum
02-08-2011, 10:38 PM
ding ding ding!

you your friend may not pass go, do not collect $200, do not has a gun


Yes. He does not haz a gun. He is haz t3h ottomobil. He is haz not collector $200 monies.


:)







Ventipossum

ventipossum
02-08-2011, 10:42 PM
Through a lengthy and expensive process, the right attorney MAY be able to have the charges cleared and petition to have his firearms rights restored.

But as it stands, he is a prohibited person and will remain so for the rest of his life.

I recommend that he contact either the Calguns Foundation, or one of the attorneys who typically work with CGN:

http://www.calguns.net/calgunforum/../images/ads30/Davis120x60.gif (http://www.calgunlawyers.com/) http://www.calguns.net/calgunforum/../images/ads31/Kilmer120x60.gif (http://www.dklawoffice.com/)


Whoa.....

Are you serious? I thought that only felons had lost their rights to keep and bear arms?


That's heavy if what your saying is true.


Thank you for the linkage as well. I'll refer my friend to them.




Ventipossum

ventipossum
02-08-2011, 10:46 PM
NEVER plead guilty or no contest to any DV charge


Makes sense to me.

It is surprising too, especially since this was his first arrest ever by the police. He has no prior criminal record (save for a few parking tickets and a speeding ticket) and is known to be a person with a mellow / pacifist type of attitude towards a lot of things.


If I may ask you, why should you never plead guilty or no contest to any DV charge?







Ventipossum

fiddletown
02-08-2011, 10:49 PM
Whatever may have actually happened, by pleading no contest your friend effectively admitted that he did what he was charged with. And, as already mentioned, that bars him from possessing a gun for the rest of his life. That's why you don't want to plead guilty or no contest to a DV charge.

If your friend wants to try and fix this, he needs serious legal representation, and there are no guarantees.

ohsmily
02-08-2011, 11:02 PM
Barred for life under a combination of federal and state law. However, there are active cases in the works to relieve California residents of the unfair result that someone convicted of a felony domestic violence offense has legal channels to regain firearms rights (COR and pardon) whereas those convicted of misdemeanor crimes of domestic violence have no relief currently available to restore their rights (COR and pardon aren't available to misdemeanor offenders except in connection with some sex offenses).

For now, your friend is SOL.....really.....

Your friend should have consulted with his attorney about his gun rights and or hired a different/better attorney.

ke6guj
02-08-2011, 11:04 PM
Whoa.....

Are you serious? I thought that only felons had lost their rights to keep and bear arms?


That's heavy if what your saying is true.


Thank you for the linkage as well. I'll refer my friend to them.




Ventipossum
yes, he is serious, http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban


If I may ask you, why should you never plead guilty or no contest to any DV charge?


because if you plead to the DV charge, even for a misdemeanor, you are lifetime prohibited from possessing a firearm per federal law.. Even if you attorney tellls you that CA just has a 10-year ban.

stix213
02-08-2011, 11:20 PM
5) He plead "no contest" to the charges.


I don't understand... Why if the charges were completely false would he basically admit to them? Doesn't add up

As already mentioned, a DV conviction is a ban on even touching a firearm for life.

PandaLuv
02-08-2011, 11:31 PM
Jesus, I don't wanna sound ****ed up but some women are mean as hell.
My co-worker almost got arrested for "rape". He stopped sleeping with this chick and she called cops telling them that he raped her. Twice on different days, a week apart, in the back of her own car late at night, around the same time.

Anyways, why won't she confess then? I think the record should go away. I am not a laywer though

five.five-six
02-08-2011, 11:37 PM
I don't understand... Why if the charges were completely false would he basically admit to them? Doesn't add up



ask BWO about that one

five.five-six
02-08-2011, 11:40 PM
All humorous or snarky answers will be answered in a similar fashion.





IMO my post was both humorous and snarky, I demand my snarky/humorous rebuttal

jl123
02-09-2011, 12:53 AM
I don't understand... Why if the charges were completely false would he basically admit to them? Doesn't add up

As already mentioned, a DV conviction is a ban on even touching a firearm for life.

Prosecutors threaten the hell out of people. They tell them that if it goes to trial the defendant will get the book thrown at them. Attorneys aren't cheap and public defenders often suck. Those factors can make plea bargains/probation look really appealing to the innocent......especially in cases where it is difficult to prove their innocence.

ventipossum
02-09-2011, 1:13 AM
IMO my post was both humorous and snarky, I demand my snarky/humorous rebuttal


Mister sir, did you not read the preeevius post?

It said that my friend does not haz gun and that he did not haz collector $200 monies from the go.

If you are not looking for that message, than you, Mister Sir, are in need of help by the wayside of the vision.

Perhaps your are haz EYE STIGMATA.



:P





Ventipossum

ventipossum
02-09-2011, 1:35 AM
Jesus, I don't wanna sound ****ed up but some women are mean as hell.
My co-worker almost got arrested for "rape". He stopped sleeping with this chick and she called cops telling them that he raped her. Twice on different days, a week apart, in the back of her own car late at night, around the same time.

Anyways, why won't she confess then? I think the record should go away. I am not a laywer though


No, you're not sounding ****ed up at all. It is within many people's capabilities to lie, its just that some lies get too far down the road and end up snowballing into something even worse.

My friend's ex-gf is one of those types of women who are very 'girly' and think that men should perform acts of chivalry upon them simply because they are women. Now, that's not to say that his ex-gf isn't attractive, but it can't be avoided when I say that I could tell she was kind of a *****y-type of attention-seeking girl when I first met her.

You know the types;

The ones that wear tight or revealing clothing (even though they don't have that much of a 'bod'), gobs of caked-on makeup (most likely to cover up all that bad eczema), high-heeled footwear all the time (wear them to the gym, change to running shoes then wear different high heels on the way out), color their hair different colors like dark red, dark blonde and even go out of their way to wear colored contact lenses (Seriously, you're Asian, woman. Contact lenses and hair color won't EVER change who you REALLY are) and use lots and lots of perfume, so much that they kind of reek of a sweet scent.

These types also love to take tons and tons of pictures of themselves and their friends, families and post them everywhere on the internet (you know, Facebook, Twitter, Myspace...etc.) and tell people how special they are.

The reason why she called me to tell me what happened was because she was afraid of what might happen to her for filing a false report.

She thought that by calling me, I would 'get on her side' because she was an attractive girl. It didn't work on me, because I like to feel that I have a pretty good knowledge on how to determine a person's character.

This girl was full of nothing but b***s*** from the day I met her.

Frankly, I didn't much like her or even know her that well, yet, when this thing happened to my friend, she calls me to garner my support for her side of the story.

*sighs*


I just hope my friend can do something about this.

I hope that she can be held responsible for this as well and maybe get things overturned so my friend can have his 2nd Amendment Rights restored.






Ventipossum

tozan
02-09-2011, 2:04 AM
Problem with this whole mess is will she give a sworn statement that he didn't do anything wrong? Is she willing to be charged and take the fall for him now? For some reason I doubt she will do that for him...

Wherryj
02-09-2011, 12:59 PM
Whoa.....

Are you serious? I thought that only felons had lost their rights to keep and bear arms?


That's heavy if what your saying is true.


Thank you for the linkage as well. I'll refer my friend to them.




Ventipossum

http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban

NightOwl
02-09-2011, 2:05 PM
Whoa.....

Are you serious? I thought that only felons had lost their rights to keep and bear arms?


That's heavy if what your saying is true.


Thank you for the linkage as well. I'll refer my friend to them.




Ventipossum

They lowered the bar to include certain, special misdemeanors several years ago. Most folks thought "oh that's okay, it's only for those bad people" and didn't throw a fit. Now we're all screwed by it.

Expect other misdemeanors to be added to this list in the future, or at least an attempt made. There's a list of them, it's about a page long, of misdemeanors that will ban your possession of a firearm for either 10 years, or permenantly, between CA and federal law. I can't for the life of me find it right now, but if you're interested in looking for it, you'll turn it up eventually. You'd be surprised at how inclusive that list is. Also, take into account that when someone is arrested, they're usually charged with a half dozen things thrown in (imo, to make them plea out to 1 of the charges, rather than go through a court battle over all of them), so more people get hit with those laws than you might expect.

Cokebottle
02-09-2011, 6:17 PM
NEVER plead guilty or no contest to any DV charge
Sadly, many of these convictions were prior to the Lautenberg Amendment. They were the results of plea bargains by DAs eager to get a conviction, and poor saps who didn't have the money for a good attorney. What would you rather do? Take a "no contest" for a misdo with the DAs statement that jail time will be "time served", $500 fine, 5 years probation, and no loss of gun rights..... or throw yourself on the mercy of the court on a felony charge with a public defender, and the only term that most public defenders know is "nolo contendre."

The problem is, Lautenberg was retroactive... and it seriously needs to be challenged by someone who was convicted prior to 1997. It seems that it would be a slam dunk under ex-post facto.

Cokebottle
02-09-2011, 6:20 PM
Whoa.....

Are you serious? I thought that only felons had lost their rights to keep and bear arms?
Yup.

You can thank New Jersey Senator Frank Lautenberg
http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban
http://upload.wikimedia.org/wikipedia/commons/thumb/7/77/Lautenberg.jpg/225px-Lautenberg.jpg

Cokebottle
02-09-2011, 6:24 PM
I don't understand... Why if the charges were completely false would he basically admit to them? Doesn't add up
$$$$$$

Today, if my wife were to put me in a situation that I were facing charges, I would have no choice but to do the same.

Have you ever been represented by a public defender? You may as well represent yourself.
Go to court with a PD, and you'll be a convicted felon. Take the plea deal, and at least you retain your right to vote.

Matt C
02-09-2011, 6:25 PM
ask BWO about that one

Just for the record I never admitted to anything, nor plead no contest (essentially guilty), I agreed to surrender 2 guns and a lower and pay $500 (or something like that) in exchange for having all charges against me dropped, because fighting them would have cost at least $500k more than I had, even with no appeals (if I won at trial, which in LA was a crapshoot at best). Plus the point about OLLs had already been pretty clearly made to the DA (which is why everyone sells them now), so it became a simple $$$ value question.

Certainly though I understand why a person would take a deal to avoid jail time, guilty or not, given a chance that they might lose an expensive trial regardless, especially if they were not made fully aware of the potential consequences of the plea by their lawyer.

Cokebottle
02-09-2011, 6:38 PM
They lowered the bar to include certain, special misdemeanors several years ago. Most folks thought "oh that's okay, it's only for those bad people" and didn't throw a fit. Now we're all screwed by it.

Expect other misdemeanors to be added to this list in the future, or at least an attempt made. There's a list of them, it's about a page long, of misdemeanors that will ban your possession of a firearm for either 10 years, or permenantly, between CA and federal law. I can't for the life of me find it right now, but if you're interested in looking for it, you'll turn it up eventually. You'd be surprised at how inclusive that list is. Also, take into account that when someone is arrested, they're usually charged with a half dozen things thrown in (imo, to make them plea out to 1 of the charges, rather than go through a court battle over all of them), so more people get hit with those laws than you might expect.
http://ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf

The following misdemeanor convictions result in a lifetime prohibition:
Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
A "misdemeanor crime of domestic violence" (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

DV is the only misdo that includes a Federal prohibition.

Note: Two or more convictions of PC 417(a)(2).... brandishing... is lifetime.

diginit
02-09-2011, 7:49 PM
Sorry. A procecuted DV charge, Means loss of 2nd rights. Your friend cannot even rent a gun at a range. Any possession of a firearm will put him in jail. Even if he is just shooting a friends gun. Possession means "in his hands". 7 years after the offence, He can petition the court to have his record exponged. But this cost lots of money...

jtmkinsd
02-09-2011, 8:24 PM
Why all the doom and gloom??? After the 10 year CA ban is over, tell him to go get his record expunged. He would no longer meet the Federal criteria of being "convicted" of the qualifying crime. Not saying their won't be some added paperwork and attorney fees to get the record straight. But it's not doomsday.

All the "your life is over" talk is really a little much.

Flame suit on :rolleyes:

jtmkinsd
02-09-2011, 8:30 PM
Sorry. A procecuted DV charge, Means loss of 2nd rights. Your friend cannot even rent a gun at a range. Any possession of a firearm will put him in jail. Even if he is just shooting a friends gun. Possession means "in his hands". 7 years after the offence, He can petition the court to have his record exponged. But this cost lots of money...

He can petition for an expungement anytime after his probation is completed...generally it is 3 years for a DV offense. It is best to wait until the 10 year CA ban is completed before filing for expungement. If you file for an expungement before the CA ban has run it's course, the judge will insert language in your expungement stating the the ban on firearm ownership is to remain in effect. Having this language in the expungement makes life difficult on a Federal level for purchasing firearms after the 10 year CA ban. It costs $60 to file an expungement packet (although filing fees may vary from county to county)and takes about 10 minutes to fill out.

Cokebottle
02-09-2011, 8:39 PM
Why all the doom and gloom??? After the 10 year CA ban is over,
California ban for DV is lifetime.

five.five-six
02-09-2011, 8:43 PM
Just for the record I never admitted to anything,
I should have been more clear that you have first hand experience of the hell they will put an innocent man through for standing his ground


Certainly though I understand why a person would take a deal to avoid jail time, guilty or not, given a chance that they might lose an expensive trial regardless, especially if they were not made fully aware of the potential consequences of the plea by their lawyer.

jtmkinsd
02-09-2011, 8:53 PM
California ban for DV is lifetime.

Not misdemeanor DV...it's a ten year CA ban.

And from the sound of the terms of the no-contest plea, and probation of 2 years (I think it's actually 3 years which would be standard) it's a misdemeanor conviction for DV.

While there are misdemeanors that do result in lifetime bans, I think they all have to do with using a firearm in the commission of the misdemeanor.

anthonyca
02-09-2011, 9:09 PM
Why all the doom and gloom??? After the 10 year CA ban is over, tell him to go get his record expunged. He would no longer meet the Federal criteria of being "convicted" of the qualifying crime. Not saying their won't be some added paperwork and attorney fees to get the record straight. But it's not doomsday.

All the "your life is over" talk is really a little much.

Flame suit on :rolleyes:

California expungement does not count according to the Feds/ATF. It did for a while but no longer. They say they reason is that California never truly expunged because the crime can be used as a prior offense if you are ever arrested for anything else.

NightOwl
02-09-2011, 9:12 PM
http://ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf

The following misdemeanor convictions result in a lifetime prohibition:
Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
A "misdemeanor crime of domestic violence" (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

DV is the only misdo that includes a Federal prohibition.

Note: Two or more convictions of PC 417(a)(2).... brandishing... is lifetime.

That's the ticket, thank you!

The list of 47 misdemeanors that are a 10 year prohibition (higher on the linked page than the portion you quoted) are the rest of what I was thinking of. FOURTY SEVEN! Anyhow, it seems like most folks just think of DV as the only misdemeanor that can impact your ownership of a firearm, and that's not the case. A pretty long trip down the slippery slope, imo.

Not misdemeanor DV...it's a ten year CA ban.

And from the sound of the terms of the no-contest plea, and probation of 2 years (I think it's actually 3 years which would be standard) it's a misdemeanor conviction for DV.

While there are misdemeanors that do result in lifetime bans, I think they all have to do with using a firearm in the commission of the misdemeanor.

You are incorrect. Check the link that Cokebottle provided in responding to my post. DV is a lifetime ban in CA.

jtmkinsd
02-09-2011, 9:15 PM
California expungement does not count according to the Feds/ATF. It did for a while but no longer. They say they reason is that California never truly expunged because the crime can be used as a prior offense if you are ever arrested for anything else.

And where do they "say" this?

anthonyca
02-09-2011, 9:20 PM
Not misdemeanor DV...it's a ten year CA ban.

And from the sound of the terms of the no-contest plea, and probation of 2 years (I think it's actually 3 years which would be standard) it's a misdemeanor conviction for DV.

While there are misdemeanors that do result in lifetime bans, I think they all have to do with using a firearm in the commission of the misdemeanor.

The lifetime ban is federal. Look up the lautenberg amendment.

DO NOT file for expungement if you are going to try to file a motion to dismiss the conviction!!!!! The court will say you have no ground to stand on. Most federal officers and regular judges and attorneys do not understand fire arms law.

Jason Davis or Michele and associates are two of the only law firms that know about this.

anthonyca
02-09-2011, 9:24 PM
And where do they "say" this?

http://ag.ca.gov/firearms/infobuls/0405.pdf

jtmkinsd
02-09-2011, 9:44 PM
http://ag.ca.gov/firearms/infobuls/0405.pdf

A fine point of law...I'm wondering if there is actually case law to back it up?

Pretty far reaching of the Fed to say "well California's expungement isn't really an expungement"

Nor_Cal_Grown
02-09-2011, 10:00 PM
I'm no where near as knowledgeable on this topic as you guys, but in "wilder" states such as Alaska, Idaho, & Montana, I believe there are exceptions for personal protection from wildlife.... :confused: Please ignore me if this is high-jacking the thread.
-J

" 18 USC § 922 (g)(9); (Note: although federal law prohibits owning or buying a gun if the abuser is convicted of a "domestic violence misdemeanor," none of Alaska's domestic violence misdemeanors have the 'intentional' element that is required under current case law to meet the federal definition. Therefore, a conviction for a domestic violence misdemeanor in Alaska does not make it illegal for an abuser to own or buy a gun. See United States v. Nobriga, 474 F.3d 561 (9th Cir. Ct App., 2006))
** Alaska Statute § 12.55.015(f)
*** Alaska Statute § 18.65.515(b)"



P.S.: I believe it would only apply if it happened IN Alaska.

Cokebottle
02-09-2011, 10:03 PM
You are incorrect. Check the link that Cokebottle provided in responding to my post. DV is a lifetime ban in CA.
Yes and no.

Under the rest of the lifetime prohibitions, they list California PC (and USC if it applies).
For misdemeanor DV, they list only two USC sections. I think he's right and California does not address a specific lifetime prohibition against DV.

SScott
02-09-2011, 10:06 PM
Why would he plead No Contest if he didn't do anything?
It's like shooting your toe to spite your foot.

anthonyca
02-09-2011, 10:15 PM
A fine point of law...I'm wondering if there is actually case law to back it up?

Pretty far reaching of the Fed to say "well California's expungement isn't really an expungement"

I don't remember seeing any caselaw on this specific problem of the ATF making law and just changing their mind on a whim.

Some poor @"&$ will have to spend a few hundred grand and risk 10 years in a federal pen and am$250,000 fine for us to find out.

Most likely some 5 time offender who actually did commit domestic violence ( unlike many who are caught up in this DV crap) will fight it with his public defender and we will all suffer.

jtmkinsd
02-09-2011, 10:18 PM
There is specific CA PC which outlines the 10 year ban for misdemeanor DV convictions CA PC 12021(c)(1) (http://law.onecle.com/california/penal/12021.html). It's a ten year ban...period.

Cokebottle has it right, they list the Federal code which imposes the lifetime ban...not CA PC.

On to the "ruling" by ATF. It seems pretty clear in 18 U.S.C. § 921(a)(33)(B)(ii) (http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00000921----000-.html) that a person is not considered "convicted" if their record is expunged. Not "certain" expungements, or "only the expungements ATF approves".

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

This is where people may get confused...If you get an expungement before your ten year CA ban is completed, the highlighted language will be in your expungement. If you wait until after the 10 year ban is done, the language will not be in your expungement.

anthonyca
02-09-2011, 10:27 PM
Why would he plead No Contest if he didn't do anything?
It's like shooting your toe to spite your foot.

Hmm maybee he had never been in any kind of trouble in his life and was afraid. Maybee he has a mortgage and couldn't go jail and loose his house and job. Maybee his lawyer didn't know about the federal ban and told him to just plead and he can go home with time served. Maybee his attorney and the DA told him the judge and jury would be the same as that cop and not listen to fact and he would go to jail for a year. Maybee it was like a bad dream and he thought if I just sign here it will be over. Maybee his attorney told him he could just have it expunged. ( sounds great but doesn't really mean ;:@&.

Have you ever been arrested for something you didn't do? The whole system is against you and they have unlimited funds. Fighting will burn through most of our life savings before the trial is over. Then what? Your broke with half a defense and if you loose you will get one heck of a stiff sentence.

Cokebottle
02-09-2011, 10:31 PM
Maybee his lawyer didn't know about the federal ban
Maybe it happened in 1996 or earlier.
Lautenberg went into effect in 1997 and was retroactive.

anthonyca
02-09-2011, 10:32 PM
Maybe it happened in 1996 or earlier.
Lautenberg went into effect in 1997 and was retroactive.

Very good point.

ohsmily
02-09-2011, 11:17 PM
There is specific CA PC which outlines the 10 year ban for misdemeanor DV convictions CA PC 12021(c)(1) (http://law.onecle.com/california/penal/12021.html). It's a ten year ban...period.

Cokebottle has it right, they list the Federal code which imposes the lifetime ban...not CA PC.

On to the "ruling" by ATF. It seems pretty clear in 18 U.S.C. § 921(a)(33)(B)(ii) (http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00000921----000-.html) that a person is not considered "convicted" if their record is expunged. Not "certain" expungements, or "only the expungements ATF approves".

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

This is where people may get confused...If you get an expungement before your ten year CA ban is completed, the highlighted language will be in your expungement. If you wait until after the 10 year ban is done, the language will not be in your expungement.

California's so-called expungement doesn't meet the federal requirement for "expungement." It means nothing. Read the ACTUAL "expungement" section. If convicted of misdemeanor DV in California, there is currently no way to regain your gun rights which is why it is the subject of at least two current civil rights actions with multiple plaintiffs.

PENAL CODE SECTION 1203.4

(a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of probation,
or in any other case in which a court, in its discretion and the
interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any
time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be permitted
by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and, in either case, the court shall thereupon
dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State Lottery.
Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4
of Part 6
Dismissal of an accusation or information underlying a conviction
pursuant to this section does not permit a person prohibited from
holding public office as a result of that conviction to hold public
office.
This subdivision shall apply to all applications for relief under
this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of subdivision (b) of
Section 42001 of the Vehicle Code, to any violation of subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any
infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred fifty
dollars ($150), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred fifty dollars
($150), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred fifty dollars ($150). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(e) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
It shall be presumed that the prosecuting attorney has received
notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.

jtmkinsd
02-10-2011, 1:15 AM
California's so-called expungement doesn't meet the federal requirement for "expungement." It means nothing. Read the ACTUAL "expungement" section. If convicted of misdemeanor DV in California, there is currently no way to regain your gun rights which is why it is the subject of at least two current civil rights actions with multiple plaintiffs.

PENAL CODE SECTION 1203.4

Dismissal of an accusation or information pursuant to this sectiondoes not permit a person to own, possess, or have in his or hercustody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6


^^^This all has to do with any CA imposed ban on firearm ownership. In essence, "yes, we will expunge your record, but IF you are subject to a ban on ownership or possession of a firearm in CA, this expungement does not dismiss that ban."

There is no "Federal requirement for expungement". My guess is the plaintiffs in any case are probably still subject to a CA imposed ban (for which the expungement would not offer any benefit).

AFTER 10 years from date of conviction on a misdemeanor DV charge, there is absolutely nothing in CA law which says you cannot own or possess a firearm. That is CA law.

ONLY Federally are you banned from owning or possessing firearms through the Lautenberg Amendment.

The language in 18 U.S.C 921 & 922 is clear, expungement of an offense is grounds to have your rights restored.

No matter what (outside a presidential pardon), you are SOL for, at minimum 10 years. You cannot own or possess firearms. But after the 10 year CA ban, you can get the expungement and go from there.

Now, I guess one could go the route of filing for a Certificate of Rehabilitation and Pardon under CA PC 4852, but I think that is reserved for felony convictions?...I don't know. But at 7 years, one would still be under the 10 year CA ban on possession of firearms, and getting a pardon, while still legally banned by the State from owning firearms, would be an uphill battle IMHO.

ALSystems
02-10-2011, 8:18 AM
Got to get rid of this Lautenberg Amendment BS or
so many misdemeanors will continue to be added until the 2nd Amendment doesn't apply to anyone.

Remember how California's "Safe Handgun List" was sold to the public through the generic "think of the children" safety banner. Look how its evolved into an outright ban of nearly every new handgun.

You can thank New Jersey Senator Frank Lautenberg
http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban

http://www.ntsystemscal.com/download/other/Lautenberg.jpg

pdugan6
02-10-2011, 8:33 AM
fark it. I don't think it to be unreasonable to lose gun rights for lets say 2 years if you are convicted of a domestic abuse charge, but for life? That is a little crazy unless you set it up like three strikes your out. Because in reality if you actually are beating on a woman then that shows no self restraint.

anthonyca
02-10-2011, 9:05 AM
fark it. I don't think it to be unreasonable to lose gun rights for lets say 2 years if you are convicted of a domestic abuse charge, but for life? That is a little crazy unless you set it up like three strikes your out. Because in reality if you actually are beating on a woman then that shows no self restraint.

I agree that beating on a woman means that person has problems and is not safe to be around. The problem is you don't have to beat anyone.

DV battery is ANY touching no matter how slight, wether or not it was meant to cause pain or influence. I had a post with the jury instructions and most of the people who read it were shocked that they have committed domestic violence.

Throwing a phone is destroying a communication device and while not a lifetime federal ban, unless you throw it at a person, it will still land you in jail and follow you for life if you want many good jobs.

Expungement doesn't really do much. People will still see the arrest and that will kill you a lot of the time. If you have or want any type of security clearance or government liscense, your SOL. This uncludes working in server rooms or office buildings where sensitive information is kept.

Wherryj
02-10-2011, 9:35 AM
Yup.

You can thank New Jersey Senator Frank Lautenberg
http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban
http://upload.wikimedia.org/wikipedia/commons/thumb/7/77/Lautenberg.jpg/225px-Lautenberg.jpg

Without knowing, it is pretty safe to assume that any bill/amendment such as this originated in Hawaii, the PRK, NY or NJ. Why am I not surprised that it was the Senator from NJ?

Wherryj
02-10-2011, 9:42 AM
Hmm maybee he had never been in any kind of trouble in his life and was afraid. Maybee he has a mortgage and couldn't go jail and loose his house and job. Maybee his lawyer didn't know about the federal ban and told him to just plead and he can go home with time served. Maybee his attorney and the DA told him the judge and jury would be the same as that cop and not listen to fact and he would go to jail for a year. Maybee it was like a bad dream and he thought if I just sign here it will be over. Maybee his attorney told him he could just have it expunged. ( sounds great but doesn't really mean ;:@&.

Have you ever been arrested for something you didn't do? The whole system is against you and they have unlimited funds. Fighting will burn through most of our life savings before the trial is over. Then what? Your broke with half a defense and if you loose you will get one heck of a stiff sentence.

This is the reason.

It's the Golden Rule. Those with the gold make the rules. If you have enough money you can get away with murder (see OJ), if you have little money, you get forced to plead to something you didn't even do.

The legal system isn't about "justice". It's about DAs making a name for themselves for their future political careers.

Beelzy
02-10-2011, 10:50 AM
To answer the OP's original question, for the Layman...... Game Over.

SunTzu
02-10-2011, 10:51 AM
Don Kilmer has a civil rights suit going through the court system right now addressing some of these issues. Wish him all the best.

anthonyca
02-10-2011, 5:22 PM
Don Kilmer has a civil rights suit going through the court system right now addressing some of these issues. Wish him all the best.

Is there any information on this case?

ohsmily
02-10-2011, 5:26 PM
^^^This all has to do with any CA imposed ban on firearm ownership. In essence, "yes, we will expunge your record, but IF you are subject to a ban on ownership or possession of a firearm in CA, this expungement does not dismiss that ban."

There is no "Federal requirement for expungement". My guess is the plaintiffs in any case are probably still subject to a CA imposed ban (for which the expungement would not offer any benefit).

AFTER 10 years from date of conviction on a misdemeanor DV charge, there is absolutely nothing in CA law which says you cannot own or possess a firearm. That is CA law.

ONLY Federally are you banned from owning or possessing firearms through the Lautenberg Amendment.

The language in 18 U.S.C 921 & 922 is clear, expungement of an offense is grounds to have your rights restored.

No matter what (outside a presidential pardon), you are SOL for, at minimum 10 years. You cannot own or possess firearms. But after the 10 year CA ban, you can get the expungement and go from there.

Now, I guess one could go the route of filing for a Certificate of Rehabilitation and Pardon under CA PC 4852, but I think that is reserved for felony convictions?...I don't know. But at 7 years, one would still be under the 10 year CA ban on possession of firearms, and getting a pardon, while still legally banned by the State from owning firearms, would be an uphill battle IMHO.

You are wrong. Stop. California's version of expungement doesn't satisfy the federal requirement for expungement with regard to restoration of rights for firearms. In essence, it doesn't count.

Look at: 18 U.S.C. § 921(a)(20)(B)

jtmkinsd
02-10-2011, 9:11 PM
You are wrong. Stop. California's version of expungement doesn't satisfy the federal requirement for expungement with regard to restoration of rights for firearms. In essence, it doesn't count.

Look at: 18 U.S.C. § 921(a)(20)(B)

Which is why you must wait the 10 years, and when you get your expungement you request the court strike the language about firearm possession from the expungement.

ohsmily
02-10-2011, 9:32 PM
Which is why you must wait the 10 years, and when you get your expungement you request the court strike the language about firearm possession from the expungement.

*shakes head* The judge can't make an order contrary to law. Penal Code 1203.4 allows the court to grant your petition/motion pursuant to the language of that section and nothing more. Why you keep insisting on your interpretation with such tenacity is puzzling given the fact that you have never been successful in doing what you propose. You keep arguing your theory as though it is fact. Those people who are actually in court fighting about these issues know that at this time those convicted of misdo DV in California are SOL.

I suppose the lawyers at Michel & Associates have it wrong in their materials as well, right?

SunTzu
02-11-2011, 8:47 AM
The case can be found on Madison Society Website. Enos v. Holder

dad
07-02-2011, 11:45 AM
Hmm maybee he had never been in any kind of trouble in his life and was afraid. Maybee he has a mortgage and couldn't go jail and loose his house and job. Maybee his lawyer didn't know about the federal ban and told him to just plead and he can go home with time served. Maybee his attorney and the DA told him the judge and jury would be the same as that cop and not listen to fact and he would go to jail for a year. Maybee it was like a bad dream and he thought if I just sign here it will be over. Maybee his attorney told him he could just have it expunged. ( sounds great but doesn't really mean ;:@&.

Have you ever been arrested for something you didn't do? The whole system is against you and they have unlimited funds. Fighting will burn through most of our life savings before the trial is over. Then what? Your broke with half a defense and if you loose you will get one heck of a stiff sentence.

No one in the court, nor the DA, tell you of a life time ban! It is not on any paper work.

dad
07-02-2011, 8:28 PM
You are wrong. Stop. California's version of expungement doesn't satisfy the federal requirement for expungement with regard to restoration of rights for firearms. In essence, it doesn't count.

Look at: 18 U.S.C. § 921(a)(20)(B)
What are you referring too?

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

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices,
restraints of trade, or other similar offenses relating to the regulation of business practices, or

(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.

BajaJames83
07-02-2011, 8:32 PM
Lawyer up!!

welchy
07-02-2011, 10:07 PM
http://i91.photobucket.com/albums/k283/JerryAgent/Necropost.jpg

HowardW56
07-03-2011, 8:35 AM
Is it possible for him to purchase a firearm? He wants to be able to defend himself and his family.

NOPE



Get a baseball bat...