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Misfitlimp
02-10-2011, 2:25 PM
Ok so I did a quick search and couldn't find anything on this. I tried to purchase a lower. My first ever purchase for a firearm or a piece of one in this case. I had been convicted of a felony in 04. I recently got it reduced to a misdemeanor via the whole 17b deal then completely expunged off my record via the 1204 or 1203 or whatever. My local gun store got back to me about a week later saying the DOJ kicked it back as a no go for my lower. I then called the DOJ and they told me that my paperwork hadn't gone thru for my felony which I can understand. I mean when I got convicted it was on there the next day but when Its taken off a few weeks isn't enough time for them to get it off my record. (sarcasm) if you didn't catch the subtle tee. The lady from the DOJ that I was speaking to then proceeded to tell me that even after they get my paperwork that I will still have a 10 yr ban that I have to fulfill before they allow me to purchase any firearms. I asked weather it was from the time I got the expungement or from the time I got convicted and she said it was from the conviction. Which was about 7 years ago. HELP!

dantodd
02-10-2011, 2:26 PM
If it was non-DV and it was both reduced and expunged I don't believe she is correct.

Robidouxs
02-10-2011, 2:35 PM
We kind of need the details to help you. I just hope it was not domestic violence since you would have a lifetime ban.

Shane916
02-10-2011, 2:38 PM
http://ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf

Misfitlimp
02-10-2011, 2:41 PM
Non domestic. I got in a scuffle with a dude got an assault charge. In no way a domestic violence charge. And I know I messed up but I was a youngster dude like 19 or 20. I've stayed out of trouble since then. Nothing else on my record.

ENVYGREEN
02-10-2011, 3:09 PM
You have a 10 year ban minimum. Some charges carry a forever ban in CA only. Even after reduction.

Misfitlimp
02-10-2011, 3:14 PM
10 yr ban for what though? Like everyone gets that or was it because of my crime?

Misfitlimp
02-10-2011, 3:21 PM
And here's another question. Since I'm not a felon anymore. Am I allowed to posses firearms? Like say if my buddy took me out shooting with his rifles or does the ban apply for owning only and not possessing ?

dantodd
02-10-2011, 3:23 PM
If you can't purchase, you can't posses. Assuming you are a resident over 21.

ENVYGREEN
02-10-2011, 3:24 PM
Everyone gets that penalty. even if you were originally convicted of certain misdomeanors. It applies to owning and possessing.

Misfitlimp
02-10-2011, 3:30 PM
Thanks everyone for the quick responses and help. It is much appreciated.

stix213
02-10-2011, 3:36 PM
I'm not an expert in this area, I just hang out on this site far too much, but my understanding is that misdemeanor expungement does not remove a firearms prohibition. Assault ( 240, 241.) misdemeanor conviction is still a 10 year ban.

I would think you would want to read this entire page since it applies to you:
http://www.calgunlaws.com/index.php/topic-summaries/530.html

This part looks interesting:

3. How do I restore my rights from a misdemeanor prohibition?

An individual with a misdemeanor conviction may seek relief through a Writ of Error Coram Nobis if the applicable factors are met. Otherwise, he/she must either wait out the 10 year period or seek a pardon.

Edit: Good luck

jtmkinsd
02-10-2011, 3:45 PM
Wait your ten year period...when you've completed the term, you no longer are prohibited from firearm ownership/possession in CA. Trying to get your rights back before the 10 year ban can get expensive and wind up being an exercise in fulitity.

edwardm
02-10-2011, 4:41 PM
The lady from the DOJ that I was speaking to then proceeded to tell me that even after they get my paperwork that I will still have a 10 yr ban that I have to fulfill before they allow me to purchase any firearms. I asked weather it was from the time I got the expungement or from the time I got convicted and she said it was from the conviction. Which was about 7 years ago. HELP!

Regardless of the 10 year ban and having 3 more years to go, bird dog DOJ and the court that issued the 17(b). Courts (depending on county) can be notoriously slow in getting the updated information to CalDOJ (worst case I've seen is: never) and CalDOJ can be notoriously slow in updating your record once they have the information in hand (worst I've seen thus far is 7 1/2 months).

There are ways around waiting on the glacial pace of the court and CalDOJ which involve you getting a copy of your criminal history from CalDOJ, a clerk-certified copy of the granted 17(b) motion (get at least 2 copies) and then contesting your (now inaccurate) criminal history with CalDOJ's records folks.

Cost is minimal, but patience is key. Good luck.

Workerbees
02-10-2011, 4:49 PM
Since these are California prohibitions would they still apply if he moved to Nevada?

deadcoyote
02-10-2011, 7:33 PM
You can google California Penal Code 12021(c) or (d) for the complete list of individuals excluded by conviction (cant remember exactly). I know all I can tell you is even back when times were good it took us at least 60 days to get SRF's out of the system. With layoff's and what not it could be a while before they make the database reflect what happended. and BTW, a 17(b) should render you good to go 100%, you just need them to update the system. If you'd like you may PM me specifics if you need any further help.

zhyla
02-10-2011, 7:51 PM
If you are banned from purchasing you are also banned from possession. Can't even hold your buddy's guns.

Having a DROS rejected is not the same as being prohibited. In this case it sounds like just a records error. But it seems wise to get everything cleared up before doing anything firearm related.

imtheomegaman
02-10-2011, 7:52 PM
This is a question for a qualified lawyer. Save a few bucks and pay someone who knows.

jtmkinsd
02-10-2011, 8:01 PM
Since these are California prohibitions would they still apply if he moved to Nevada?

It's an interesting question, and I don't actually know the answer. I would think the problem would be DOJ would report the ban to the NICS system (even though CA does not use NICS). So you would probably send up a flag federally if you moved and then tried to purchase a firearm, even though Federally you are not "prohibited" because of this specific conviction.

JagerTroop
02-10-2011, 8:39 PM
If it was non-DV and it was both reduced and expunged I don't believe she is correct.

Not necessarily. Violent misdemeanors carry a 10yr ban. When the wobbler is reduced, the ban sets in. When it's expunged, unless specified that firearms rights are to be restored, the ban sticks.

If he is impatient, the best thing the OP can do is bite the bullet, and get a lawyer. These things CAN be fixed, but it's not likely if he's on his own. Only other option is to wait it out.

IANAL

SanPedroShooter
02-10-2011, 9:18 PM
Having a DROS rejected is not the same as being prohibited. In this case it sounds like just a records error. But it seems wise to get everything cleared up before doing anything firearm related.

Right. You can get a DROS kicked back for unpaid parking tickets (so I hear) that doesnt mean you should turn in all your guns to the PD...
And if its a ten year STATE ban, he should be gtg across the border, right?
His felony was expunged, so he's not a federal prohibited person.

Misfitlimp
02-10-2011, 10:33 PM
Thanks guys. I'm on a photo forum and the guys on that site are no where near as nice to newbs asking questions.

Ok so I get that misdemeanors carry a 10 year ban but seeing as how I got it completely wiped off my record I don't see why still the 10 yr ban.

The lady at the DOJ said the ten yr ban is from the original conviction date and you guys are saying it's from the day I got it expunged. I hope you guys are wrong cuz if I have to wait 10 years from today I'll lose it

And just to clarify for everyone I got convicted of in 03-04 for a assault with intent to do bodily injury. I plead guilty and received 100 days in county jail but ended up doing 75 days in work furlough, which is pretty much staying in a dorm room and only being let out for work. ( Ventura county ) where you come on vacation and leave on probation. I got out and was on probation for three years. Got off probation early I think seeing as how I stayed outta trouble. In the middle of last year I paid a lawyer to get it reduced to a misdemeanor and completely expunged off my record. That finally went thru in court in he beginning of this year. Talked to some gun shops and they said "you ain't a felon, you should be able to buy a firearm". Which brings us to the present.

Last question is how would a lawyer be able to make the ten yr ban non existent?

Anchors
02-11-2011, 1:43 AM
You have a 10 year ban minimum. Some charges carry a forever ban in CA only. Even after reduction.

You are correct. Assault is a misdemeanor which carries a 10 year CA ban.

Since these are California prohibitions would they still apply if he moved to Nevada?

No. He could move to another state and buy guns all day because he is not prohibited from doing so under Federal law since he is not a felon (anymore).


Ok so I get that misdemeanors carry a 10 year ban but seeing as how I got it completely wiped off my record I don't see why still the 10 yr ban.

The lady at the DOJ said the ten yr ban is from the original conviction date and you guys are saying it's from the day I got it expunged. I hope you guys are wrong cuz if I have to wait 10 years from today I'll lose it


Not all misdemeanors carry a 10 year ban in CA, but Assault is one that does.
It should be from the original date, because even if you hadn't gotten it expunged it would still only be ten years (if it was a felony it would be life, but it isn't anymore).

I don't know if a lawyer can help or not (I'm not a lawyer), but contact one to find out.
Three years is better than life though man.
Plus you can always move to AZ if you can't wait :D

ENVYGREEN
02-11-2011, 6:40 AM
Ok here it is. You have a 10 year ban from original conviction date. You are good to go in any other state. Mist likely you will trigger the three day ncis hold while they figure it out though so give yourself plenty of time. This is fact

Gray Peterson
02-11-2011, 6:50 AM
Hey misfit:

I would email Jason Davis, he is at http://www.calgunlawyers.com

He may be able to answer your questions a lot better than a bunch of people on the interwebs..

edwardm
02-11-2011, 6:55 AM
Hey misfit:

I would email Jason Davis, he is at http://www.calgunlawyers.com

He may be able to answer your questions a lot better than a bunch of people on the interwebs..

Yes, Jason is the only person with legal knowledge around these parts.

:rolleyes:

Gray Peterson
02-11-2011, 7:03 AM
Yes, Jason is the only person with legal knowledge around these parts.

:rolleyes:

Let me sum it up for you, edward, since you're not quite getting it:

Jason is the best lawyer in my experience when it comes to understanding what effect a 17b has, and has dealt with DOJ directly on such matters. If a 17b does what I think it does, which is eliminate the 10 year prohibition, it'll take an just one email or phone call from Jason to clear it up versus misfit fighting with it on his own and spinning his wheels for weeks versus advice given by even a non-lawyer subject matter expert who can't really communicate on his behalf to DOJ on his own record.

deadcoyote
02-11-2011, 7:23 AM
Let me sum it up for you, edward, since you're not quite getting it:

Jason is the best lawyer in my experience when it comes to understanding what effect a 17b has, and has dealt with DOJ directly on such matters. If a 17b does what I think it does, which is eliminate the 10 year prohibition, it'll take an just one email or phone call from Jason to clear it up versus misfit fighting with it on his own and spinning his wheels for weeks versus advice given by even a non-lawyer subject matter expert who can't really communicate on his behalf to DOJ on his own record.

I'm seriously not trying to be a jerk but I've dealt directly with DOJ regarding 17b matters and I'm no lawyer. Hell, i've got an associates degree in Fish Hatchery Management. I do deal with this stuff a lot though and agree that a letter from an attorney will clear this up a lot quicker than weeks of frustrating phone calls on your own behalf. If the OP was granted releif under 17b then nothing should hold him back from owning/possessing firearms, its just getting the system to catch up with the judgement.

Flesher
02-11-2011, 8:10 AM
Fish hatchery degree?! That's something you don't see everyday!

ENVYGREEN
02-11-2011, 8:31 AM
It's still a prohibiting misd. Don't confuse state laws with federal law. Under federal law you are ok. Under CA law you have 10 years from conviction because in this great state they have a list of prohibiting misd. The link 4 or 5 posts down spells it out very clearly. Please speak with a lawyer but your two choices will be to wait it out or move to another state that is reasonable

Misfitlimp
02-11-2011, 12:06 PM
Seriously guys. I appreciate everyones input and help. Thanks a bunch.

edwardm
02-11-2011, 1:57 PM
Let me sum it up for you, edward, since you're not quite getting it:

Jason is the best lawyer in my experience when it comes to understanding what effect a 17b has, and has dealt with DOJ directly on such matters. If a 17b does what I think it does, which is eliminate the 10 year prohibition, it'll take an just one email or phone call from Jason to clear it up versus misfit fighting with it on his own and spinning his wheels for weeks versus advice given by even a non-lawyer subject matter expert who can't really communicate on his behalf to DOJ on his own record.


Let me lay it out for you, since you're quick to apply your hand-of-slap.

1. I'm an attorney. I went to law school. I passed the California bar. Yay
me, etc. Whatever.
2. I've dealt with CalDOJ on 17(b) matters similar to this one, and others
not so similarly situated.
3. Jason is a skilled attorney, but he is far from the only person admitted
to the Bar who understands the workings of a 17(b) reduction. I can
count on both hands and feet the attorneys I know, just personally,
who are subject matter experts with 17(b) motions. They have much
use outside of firearms issues.
4. There is language in relevant case law pertaining to 17(b) that makes the
10 year question possibly a murky one. Unless there is a case I missed
in my research, I see the matter as arguable.

So, if there was some education you wanted to bring down, because I'm "not quite getting it", please do.

Kestryll
02-11-2011, 2:09 PM
Let me lay it out for both of you.

Both of you are trying to help the OP.
Neither one of you has the biggest 'E-penis' in the room.
Nobody benefits from bickering amongst ourselves.

Both of you take two steps back, ten deep breaths and then go have a cookie.
Solves darn near everything.

edwardm
02-11-2011, 2:13 PM
Let me lay it out for both of you.

Both of you are trying to help the OP.
Neither one of you has the biggest 'E-penis' in the room.
Nobody benefits from bickering amongst ourselves.

Both of you take two steps back, ten deep breaths and then go have a cookie.
Solves darn near everything.

Point taken.

I would like oatmeal (with real oatmeal, not that instant stuff), but with chocolate chips *and* raisins. Walnuts would be acceptable, but please, no almonds.

Being after 3PM, I am having that typical blood sugar drop in the afternoon.

You may FedEx many of them to me, posthaste, since I am a bit peckish now that I think of it.

;)

dantodd
02-11-2011, 2:17 PM
Thanks guys. I'm on a photo forum and the guys on that site are no where near as nice to newbs asking questions.



See, we're nice to noobs but like the taste of blood none the less. We just "eat our own." : D

Sent via tapatalk on my Samsung Vibrant.

deadcoyote
02-11-2011, 8:06 PM
Fish hatchery degree?! That's something you don't see everyday!

Yeah, if you ever invent a time machine let me know so I can go have a talk with myself 15 years ago.

Misfitlimp
02-11-2011, 8:37 PM
Let me lay it out for you, since you're quick to apply your hand-of-slap.

1. I'm an attorney. I went to law school. I passed the California bar. Yay
me, etc. Whatever.
2. I've dealt with CalDOJ on 17(b) matters similar to this one, and others
not so similarly situated.
3. Jason is a skilled attorney, but he is far from the only person admitted
to the Bar who understands the workings of a 17(b) reduction. I can
count on both hands and feet the attorneys I know, just personally,
who are subject matter experts with 17(b) motions. They have much
use outside of firearms issues.
4. There is language in relevant case law pertaining to 17(b) that makes the
10 year question possibly a murky one. Unless there is a case I missed
in my research, I see the matter as arguable.

So, if there was some education you wanted to bring down, because I'm "not quite getting it", please do.

I'm not sure if people are getting me when I say it was reduced to a misdemeanor but then completely wiped off. From what I got from my lawyer she said the only way it would be brought up as on my record would be if I re-offended. She said that police officers when running my background say on a traffic stop wouldn't see it on my record. So you as a lawyer can you be so kind as to clarify some of this stuff. I got a reduction pursuant a 17(b) then on count 1 the guilty plea was withdrawn and a not guilty plea was entered and the verdict of guilty was set aside. Then the count was dismissed pursuant to 1203.4 of the Ca PC.
Thanks.
Misfitlimp

smtimelevi
02-12-2011, 10:45 AM
Im in a similar boat my friend. I got the 10 year ban for a 246.3 (negligent discharge misdemeanor) my ban is up 11/30/2016. Ive been looking at moving out of state to escape this. I think Im good to go since its just a CA prohibition and most other states wont strip a persons rights for a ND. Not sure if the Full Faith and Credit Clause of the Constitution applies or if that just on judgements. Im going to meet with a lawyer to be absolutely sure before I pack it up and go to Nevada or somewhere. I let you know what the lawyer says about leaving state.

jtmkinsd
02-12-2011, 12:03 PM
Then the count was dismissed pursuant to 1203.4 of the Ca PC.


CA PC 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.

You still have to serve the 10 year ban on ownership/possession of firearms.

Misfitlimp
02-12-2011, 12:12 PM
wah wow wow............

deadcoyote
02-12-2011, 7:52 PM
CA PC 1203.4


You still have to serve the 10 year ban on ownership/possession of firearms.

He got the felony reduced pursuant to 1203.4 then had the conviction set aside pursuant to 17(b), rendering him eligible for purchasing a firearm. I think the database just needs to catch up with his case is all.

Misfitlimp
02-12-2011, 8:16 PM
He got the felony reduced pursuant to 1203.4 then had the conviction set aside pursuant to 17(b), rendering him eligible for purchasing a firearm. I think the database just needs to catch up with his case is all.

NICE! (insert "the price is right" winners jingle here )

jtmkinsd
02-12-2011, 8:22 PM
He got the felony reduced pursuant to 1203.4 then had the conviction set aside pursuant to 17(b), rendering him eligible for purchasing a firearm. I think the database just needs to catch up with his case is all.

You have it backwards...17(b) to reduce the felony to misdemeanor, 1203.4 to set aside...and no, the database does not need to catch up. He can't own or possess firearms for 10 years from the date of conviction, as it was a qualifying offense for the 10 year ban. 1203.4 expungement/dismissal expressly points out that under no circumstance does the said expungement/dismissal relieve the person of the prohibition on firearms possession/ownership.

The only relief in the penal code for this is for peace officers, and for those whose conviction date was prior to the specific offense being added to the list of offenses which require the 10 year ban.

Misfitlimp
02-12-2011, 8:26 PM
You have it backwards...17(b) to reduce the felony to misdemeanor, 1203.4 to set aside...and no, the database does not need to catch up. He can't own or possess firearms for 10 years from the date of conviction, as it was a qualifying offense for the 10 year ban. 1203.4 expungement/dismissal expressly points out that under no circumstance does the said expungement/dismissal relieve the person of the prohibition on firearms possession/ownership.

The only relief in the penal code for this is for peace officers, and for those whose conviction date was prior to the specific offense being added to the list of offenses which require the 10 year ban.

I'm sure it's on there but would you happen to have a link to this list? The one that shows which offenses carry the ban?

jtmkinsd
02-12-2011, 8:32 PM
It depends on what the misdemeanor charge you plead to, and had expunged was...the exact number PC they "convicted" you of violating.

Here is a link to the PC with the corresponding offenses: CA PC 29805 (http://law.onecle.com/california/penal/29805.html)

jtmkinsd
02-12-2011, 8:40 PM
Your best bet is to call an attorney...use the CGF hotline (http://www.calgunsfoundation.org/hotline.html) for a referral

smtimelevi
02-13-2011, 8:46 AM
Im almost positive that felony reduction or expungement results in a 10 year ban from conviction. Even misdemeanor expungement doesnt restore the rights to own firearms. Thats why i havent opted to do it and will be looking to move away from CA. Dont take it personal, california doesnt want anybody to have guns. Lol

Blacky
02-13-2011, 10:24 AM
Let me lay it out for both of you.

Both of you are trying to help the OP.
Neither one of you has the biggest 'E-penis' in the room.
Nobody benefits from bickering amongst ourselves.

Both of you take two steps back, ten deep breaths and then go have a cookie.
Solves darn near everything.

Here comes da judge... here comes da judge... what?

Misfitlimp
02-13-2011, 10:06 PM
Well I'm going to talk to a lawyer soon hopefully I will be able to get the DOJ to catch up and get my lower soon. And if not it looks like it will be early in the summer of 2014. Weak sauce...........