Restoring Firearms Possession Rights in California

[Matt C]

Since there has been some discussion of late regarding restoration of firearms rights following a felony conviction, TMLLP Managing Partner C.D. Michel has been kind enough a memorandum of law relating to the effect of Penal Code 17(b); Reduction to Misdemeanor On State and Federal Firearm Possession Prohibition. It lays out the relevant PC and case law quite nicely. If anyone has any additional questions relating to a personal case they should contact the firm directly.

http://www.calgunlaws.com/index.php/topic-summaries/530.html

MODS: Sticky?

[Phugedaboudet]

It's hard enough to restore firearms owners rights for those without any sort of conviction or criminal history.

Good luck!

[daves100]

Did you get your gun rights back yet.......

[Matt C]

Heh, see the post above yours... (Not yet. )

[Knauga]

Originally Posted by Blackwater OPS

Heh, see the post above yours... (Not yet. )

What is holding it up? You were not convicted of any crime, what's the deal?

[Matt C]

The SD won't take me out of the system. I wish I had the money to sue them, but I don't so I have to wait.

[gunn]

Just curious.
On any applications that ask, which box do you check next to the question "Hey, Have you commited a felony?"

Do you check:
a) Yes, and then have to fill out is a section below that it was later reduced.
or
b) No, because having the wobbler reduced to a misdemeanor makes it so that your feloneous crime "never happened."

[jondough]

Originally Posted by gunn

Just curious.
On any applications that ask, which box do you check next to the question "Hey, Have you commited a felony?"

Do you check:
a) Yes, and then have to fill out is a section below that it was later reduced.
or
b) No, because having the wobbler reduced to a misdemeanor makes it so that your feloneous crime "never happened."

Answer B, because the conviction was reduced to a misdemeanor, and is no longer treated as a felony conviction, in my case, the judge reduced it to a Misdeameanor, and entered a not guilty plea on my behalg, and expunged it from my record.

[GuyW]

Originally Posted by jondough

Answer B, because the conviction was reduced to a misdemeanor, and is no longer treated as a felony conviction, in my case, the judge reduced it to a Misdeameanor, and entered a not guilty plea on my behalg, and expunged it from my record.

As the teacher said in school, "answer the question".

The answer is A. You committed a felony. Later it was reduced and expunged.

[Matt C]

Originally Posted by GuyW

As the teacher said in school, "answer the question".

The answer is A. You committed a felony. Later it was reduced and expunged.

Incorrect.

Labor Code Sections 432.7 and 432.8, and Fair Employment Housing Commission regulations prohibit employers from requesting information concerning the following:

1. Arrests that have not resulted in a conviction;

2. Convictions that have been expunged, sealed, or statutorily eradicated;

3. Convictions in which the applicant was referred to or successfully participated in any pretrial or posttrial diversion program;

4. Misdemeanors for which probation has been successfully completed or otherwise discharged, and the case has been judicially dismissed; and

5. A marijuana-related misdemeanor that occurred more than two years ago.

[GuyW]

OK, but the OP asked, "On any applications that ask..."

That means apps for professional or government-issued licenses, or apps for CCWs, etc

[GuyW]

Originally Posted by gunn

Just curious.
On any applications that ask, which box do you check next to the question "Hey, Have you commited a felony?"

Do you check:
a) Yes, and then have to fill out is a section below that it was later reduced.
or
b) No, because having the wobbler reduced to a misdemeanor makes it so that your feloneous crime "never happened."

So, it all depends on the question:

1, Have you ever committed a crime?

2. Were you ever ARRESTED for a crime?

3. Have you ever been CONVICTED of a crime?


What's going to happen when they pull your criminal history?

"A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.[3] The petitioner then honestly and legally can answer to a question about his criminal history, with some exceptions, that he has not been convicted of that crime"

http://en.wikipedia.org/wiki/Expungement#California

[egnilk66]

Originally Posted by GuyW

So, it all depends on the question:

1, Have you ever committed a crime?

2. Were you ever ARRESTED for a crime?

3. Have you ever been CONVICTED of a crime?[/url]

The problem I've run into is that I was arrested for something that didn't really happen. When I went to court I had to plea down to Disorderly Conduct because a. I didn't have the money to go to court and b. I was a kid and was scared and didn't know what to do. I was certain (via my attorney) that I would get convicted, whether they had evidence or not, and they would throw the book at me. So.....Disorderly Conduct. But now....FFL transfers are being denied. The charge was eight years ago this month. Now what? I've started the appeal process with LEO.GOV (FBI- I think). But the intern on the phone when I called the CA DOJ said, and said it very smugly, "BANNED FOR LIFE!". WTF? People get out of prison after murder and I can't get a gun after being at the losing end of an argument?


ANY HELP/IDEAS WOULD BE GREATLY APPRECIATED. I'm feeling pretty lost here.

[ptdog]

egnilk66 , don't be discouraged. I was in your shoes, but with a different charge. I also did something stupid when I was 18. All of us were probably young and stupid once. I really learned a great deal from that experience.

In my case, it was a felony wobbler. I did the 1203.4 and 17b to get it reduced to a misdemeanor and then set aside in 2002. This would have done it for me, but I was wrong. Just this year in February, I tried a purchase a firearm but was denied.

I was also lost and things seemed daunting in finding out why. I first started with FBI NICS, but realized that it is California DOJ who you need to deal with. I then called the firearms department in DOJ. A lady told me why I was turned down.

First is to get your Criminal history file and find out what is on it and what DOJ is seeing. For me, they had the wrong degree, first instead of second. Follow their dispute process when you get your history file. It took two tries to get the degree corrected. Once it was correct, the purchase went thru. DOJ is getting tough and said will not recognized a reduction to a misdemeanor if the charge was not a wobbler. In my case it was. They just had the wrong degree. They did see the reduction and set-asside, but with a first degree or non-wobble, they will deny your purchase.

The history file that was sent to me confirmed that they had inaccurate information for me.

Then really find out if your charge will have permenant disqualifier or 10 disqualifier. If not, use the process to dispute. In your claim of incompleteness, get certified court copies and sent that in with it. This process does work. It took me five month to get things corrected.

For me, the first try was someone not really reading the dispute form. I disputed further in a second letter as a reply. The second person took time to read it and call me about it. DOJ cannot simply correct your history file if it is wrong. They have to have the court retransmit or see if there is more. DOJ had to turn around and contact the court in my situation. DOJ was able to correct my incorrect charge and send me the new history file with the correct information.

If the process with the dispute does not work, you have the option to dispute the History file further with an Administrative Judge. DOJ will get this process going for you. All you have to do is dispute it to the supervisor of the person who is working with the dispute. You will have the burden of proof to state your case.

[egnilk66]

PTD,

Thanks for the vote of confidence. I just don't see how this could possibly be a ban for life....or even for 10 years. I mean... Ban for life = MURDERS and other VIOLENT crimes especially involving weapons.

I was just beat up by my chick....and when the cops showed up, I didn't throw her under the bus like I should have. Instead I took the fall... Man, what chicks'll do to ya.


ANyway...thanks for the long reply. It's good info and good to know that the system CAN work.


Thanks again,


Egnilk66

[Paladin]

Originally Posted by Blackwater OPS

Since there has been some discussion of late regarding restoration of firearms rights following a felony conviction, TMLLP Managing Partner C.D. Michel has been kind enough a memorandum of law relating to the effect of Penal Code 17(b); Reduction to Misdemeanor On State and Federal Firearm Possession Prohibition. It lays out the relevant PC and case law quite nicely. If anyone has any additional questions relating to a personal case they should contact the firm directly.

http://www.calgunlaws.com/article-494.html

MODS: Sticky?

When I click the link, a webpage by IPOWER comes up saying,

This site has been suspended

If you manage this site and have a question about why the site is not available, please contact us directly.

[Matt C]

Originally Posted by Paladin

When I click the link, a webpage by IPOWER comes up saying,

Calgunlaws is down for renovations, it will be back up soon.

[Shotgun Man]

If you click on the original link posted bythe OP you get a page not found reference.

Back on 6/28/08 a user made a similar point.

Not good for a sticky.

[MudCamper]

GuyW, you are confusing 1203.4 with 17b(3). There are two types of expungement in California. 1203.4 dismissals of accusatory pleadings do not apply for running for public office, application for licensure by the state, contracting with the state lottery, and depending on who you ask, owning firearms. However, a 17b(3) reduction to misdemenor applies "for all purposes" - period. You do not and never had a felony conviction. Read the TMLLP memo posted in the beginning of this thread. It cites the case law that makes it golden.

[GuyW]

Originally Posted by MudCamper

GuyW, you are confusing 1203.4 with 17b(3). There are two types of expungement in California. 1203.4 dismissals of accusatory pleadings do not apply for running for public office, application for licensure by the state, contracting with the state lottery, and depending on who you ask, owning firearms. However, a 17b(3) reduction to misdemenor applies "for all purposes" - period. You do not and never had a felony conviction. Read the TMLLP memo posted in the beginning of this thread. It cites the case law that makes it golden.

I'll check it out so that I am not confused.

[MudCamper]

I just went back and checked the calgunlaws link and it's a dead link.

Well, here is an older CalGuns discussion on this same topic:

http://www.calguns.net/calgunforum/s...ad.php?t=92885

and the case law is People v Gilbrith. And strangely, my link to it in the old post has been killed, with the notice not to be published added...

"[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring."

[BigBamBoo]

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[BigBamBoo]

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[egnilk66]

So, what I don't understand is this....Does it only take a DV "Charge" or a DV Conviction to be banned? Because anyone can easily CHARGE something that didn't really ever happen. And, what if the DV Charge ended up in a "disturbing the peace" conviction??

[anthonyca]

Originally Posted by egnilk66

So, what I don't understand is this....Does it only take a DV "Charge" or a DV Conviction to be banned? Because anyone can easily CHARGE something that didn't really ever happen. And, what if the DV Charge ended up in a "disturbing the peace" conviction??

If you are arrested or have a police report filed about you even if the prohibiting charges are dismissed but you plead down or plead to anything in the police report you can be banned for life.http://www.fbi.gov/hq/cjisd/nics/mcdvbrochure.pdf

The CAL doj will see that you have an arrest record and investigate further. Even if the FEDs say that you are not prohibited the clerk will look at the "police report" and "non court documents" and make a decision. They can determine that you acted with "boisterousness" in were "unreasonably loud" and will ban you for life even if the court says it was not Domestic Violence. I gave an accurate account in another thread of a guy who had the police called on him by someone who wanted to harm his relationship,not the victim,and was caught up in this. The DA dismissed the DV charges before his attorney even asked for a plea bargin and he is still banned.

[egnilk66]

Well, that's similar to my case. It doesn't make a whole lot of sense to me. Guilty even after proven innocent, eh. I wonder if I can get a trial 8 years later.

[CA_Libertarian]

Background checks need to be eliminated completely. The bad guys who want a gun to commit violent crimes will buy them on the street, sans background check. These laws only make it easier for the criminals to find unarmed victims.

[egnilk66]

That may be....but how do we get our rights back until then? I can't get a pardon from the Governor because it's a misdemeanor that is not of a sexual nature. http://www.cdcr.ca.gov/Divisions_Boa...for_pardon.pdf

Can I withdraw my plea and go to trial? The case has no merit, will the DA even pick it up and try for a prosecution?

I am totally lost here. I can't believe that I plead to something lower and still have the same sentence.

[egnilk66]

I believe I stand corrected:

The traditional pardon procedure is available to those who are not eligible for a Certificate of Rehabilitation. This procedure is used primarily by those who were convicted of felonies in California and now reside outside the state. The traditional pardon procedure is also available to individuals who are not eligible for a Certificate of Rehabilitation because they have been convicted of sex offenses under Penal Code sections 286(c), 288, 288a(c), 288.5, or 289(j), and those convicted of misdemeanor offenses. The traditional pardon procedure is covered by Penal Code sections 4800-4813.

[Liberty1]

Originally Posted by Blackwater OPS

http://www.calgunlaws.com/article-494.html

It's down

[Matt C]

Yeah, I should have the new site up ASAP.

[MudCamper]

Originally Posted by Blackwater OPS

Yeah, I should have the new site up ASAP.

The link has been dead for over 2 months. I can't find the PDF anywhere else on their site either.

[SteveH]

It pretty damn hard to get convicted of a Felony in California. Even non wobbler straight felonies are often filed as Misdemeanors by the DA's.

Ive seen 273.5 filed as a misd.
245 filed as a misd.
DUI with injuries or death filed as a misd.

What they hell are you guys doing that you were arrested, charged and convicted for a felony?

[BigBamBoo]

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[MudCamper]

Originally Posted by SteveH

It pretty damn hard to get convicted of a Felony in California. Even non wobbler straight felonies are often filed as Misdemeanors by the DA's.

Ive seen 273.5 filed as a misd.
245 filed as a misd.
DUI with injuries or death filed as a misd.

What they hell are you guys doing that you were arrested, charged and convicted for a felony?

There are 58 DAs, remember. Your mileage may vary. It also depends on whether or not your local LEOs have small-town-cop mentality. I've seen 496 and 12020 cases held on no-bail, with felony convitions.

[scr83jp]

Originally Posted by SteveH

It pretty damn hard to get convicted of a Felony in California. Even non wobbler straight felonies are often filed as Misdemeanors by the DA's.

Ive seen 273.5 filed as a misd.
245 filed as a misd.
DUI with injuries or death filed as a misd.

What they hell are you guys doing that you were arrested, charged and convicted for a felony?

I worked in the court systems in NYS & CA for 37 years saw lots of felony convictions that added to the corrections population. There are misdemeanor convictions in Cal that can cause a lifetime ban on firearms possession .

[BigBamBoo]

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[claude]

Does anyone know a good (affordable) attorney in San Diego who knows how to restore firearm rights?

[BigBamBoo]

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[edwardm]

Originally Posted by BigBamBoo

Pretty much ANY attorney can file a 17(b)....getting your gun rights back depends on if your felony is a "wobbler" or not. Just look in the phone book and call one of the criminal lawyers....they will explain it all to you.

Good luck,Stan

Stan, you might be shocked to learn how many attorneys don't fully grasp the implications of a 17(b) reduction. I've run into criminal attorneys with more grey hairs than there are stars in the galaxy, and not one understood that 17(b) (all other things being equal) will restore firearms rights.

On the flip side, I even recall one instance where a judge granted a 17(b) motion but specifically stated in the written order and memorandum that the party still could not have firearms (written in as a warning/admonition), which in that case was plainly untrue.

There's lots of FUD out there re: 17(b) still. One reason is that plenty of attorneys confuse it with the 1203.4 motion. I don't know why, but they do.