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  #1  
Old 04-29-2019, 1:20 PM
johntheguy johntheguy is offline
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Default Prop 36 / PC1210 firearm eligibility

Should I be firearm eligible if I’ve had a felony “set aside & dismissed per 1210(E)(1) PC”?

PC1210(e)(2) prohibits firearms capable of being concealed, but would long guns be prohibited?
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Old 04-29-2019, 3:31 PM
Chewy65 Chewy65 is offline
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Read the following. Begin with (e)(2).

Quote:
(2) Dismissal of an indictment, complaint, or information pursuant to paragraph (1) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
Now turn to Section 29800(a)(1) of the Penal Code.

Quote:
29800.

(a) (1) Any person who has been convicted of, or has an outstanding warrant for, a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
Depending on what court issued your order, it may spell out your answer for you. I am not positive what it means, but wonder if the correct interpretation is that even though the accusatory indictment, information, or complaint is dismissed, you remain convicted of a felony even though you may legally deny it for some purposes.
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Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
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Last edited by Chewy65; 04-29-2019 at 3:41 PM..
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Old 04-29-2019, 4:20 PM
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A felony conviction is a ban against possession of any firearm, whether it be a long arm or a handgun. Dismissal for a felony conviction under Prop 36 will not restore gun rights. Dismissal under PC1210 is pretty similar to a dismissal under PC1203.4. Nor will a reduction under Prop 47 restore gun rights. (Most Prop 36 offenses are reducible to misdemeanors under Prop 47.)
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Old 04-29-2019, 5:15 PM
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Quote:
Originally Posted by MyOdessa View Post
OP you are correct PC1210(e)(2) prohibits you from possessing/buying firearms capable of being concealed, so under California law you can buy long guns.
However, under federal law drug addicts cannot buy firearms, I don't see where federal law exempt ex-drug addicts.
This is not quite correct. Denying permission for concealable firearms does not imply a grant of permission for long guns. That this is so is clear from the provision that the dismissal does not prevent conviction for possession by a person convicted by a felon. Hence, you may not buy long guns under California or Federal law.

Be wary of trying to buy a gun as you will have to deny every being convicted of a felony, which could be perjury even given the exception in instruction 11(c) to Form 4473.
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.

Last edited by Chewy65; 04-29-2019 at 5:24 PM..
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Old 04-30-2019, 9:08 PM
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1210.1(e)(1)

not 1210(e)(1) << that does not exist
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Old 04-30-2019, 9:09 PM
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Quote:
Originally Posted by MyOdessa View Post
A few more thoughts on your questions:

2. Depending on your specific case and how exactly your felony was “set aside & dismissed per 1210(E)(1) PC” You may be able to go back to court, recall it and reduce it to a misdemeanor using Prop 47 and then dismiss it again. That will take care of your problem, but you need an attorney to look at your case to see if it is still a possibility.

3. There is a Federal First Offender Act, it applies to federal drug crimes and is roughly works like CA PC1000/Prop 36 and provide similar relief. It is possible that federal court can accept your Prop 36 relief and grant similar federal relief, but you will need to hire an attorney practicing in the federal court and familiar with how federal and state charges can interact.

I would seriously caution against writing thoughts that aren’t grounded in a more-than-superficial understanding of criminal law. You’re making wrong conclusions about both Prop 47 and the Federal First Offender Act, and how they would affect gun rights.
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Old 04-30-2019, 11:46 PM
Chewy65 Chewy65 is offline
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Quote:
Originally Posted by MyOdessa View Post
You should apply your warning to yourself. Reducing felony to misdemeanor, restores gun rights, unless firearm penalty applies to misdemeanor itself.
You claim that a reduction under Prop 47 restores gun rights. Please supply some authority. I have a vague recollection that it does not and so, to help you, I retrieved this. It may or may not be correct, but regarding gun rights it says in footnote 4:

Quote:
4 While a reducing a felony to a misdemeanor under Prop 47 will cause that conviction to be considered a misdemeanor for most purposes, Prop 47 does not restore an individual’s right to possess a gun. If it is important for the individual to be able to possess a gun (such as in order to work as a security guard), that individual should consider instead reducing his or her felony to a misdemeanor using Penal Code § 17(b). A reduction under § 17(b) allows the individual to honestly state on applications that he or she has not been convicted of a felony, to obtain professional licenses, to serve on a jury, and to own and use a gun. In order to be eligible for a reduction to a misdemeanor under § 17(b), an applicant must:
1. Have been convicted of a felony that could have instead been punished as a misdemeanor (i.e., a “wobbler”), and
2. Have been granted probation.
I don't know it this is correct or not, but everything that quickly popped up agrees that 47 reduction does not restore gun rights.
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Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.

Last edited by Chewy65; 04-30-2019 at 11:48 PM..
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Old 05-01-2019, 5:54 AM
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Quote:
Originally Posted by MyOdessa View Post
You should apply your warning to yourself. Reducing felony to misdemeanor, restores gun rights, unless firearm penalty applies to misdemeanor itself.

Well, if you say so, it must be true. What do I know? I’m just an attorney licensed to practice law in California, and I exclusively practice criminal defense, and I am well-versed in firearms-related laws and post-conviction relief. Oh, and I’ve read the statute. But because you called me out on giving inaccurate advice, you must be right and I must be wrong.

Penal Code section 1170.18(k):
A felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
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Old 05-01-2019, 6:52 PM
johntheguy johntheguy is offline
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I REALLY appreciate the information everyone!

Thanks for clarifying and I now understand that denying concealable firearms does not imply that long guns would be legal to own.

I agree regarding prop47, it sounds like it specifically says it does not restore gun rights.

Unfortunately it was my second drug offense so I got pc1210 instead of pc1000 for HS 11350(A). From what I understand I’m not eligible for 17(b) because HS11350(A) isn’t a wobbler. It’s been 12 years since it happened, I was young and immature, and have stayed out of trouble since then.

From what I’ve found googling, it seems a governor or presidential pardon are my only options, but those really sound like a long shot. Are there any better options?

Thank you
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Old 05-01-2019, 7:17 PM
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Default Prop 36 / PC1210 firearm eligibility

HSC11350 convictions is a frequent reason for why people are denied gun rights. And it’s the one drug offense that is reducible under Prop 47 and not PC17(b). For state crimes like HSC11350, you get a pardon from the Governor, not from the President. Presidential pardons are for federal crimes. Governor Brown actually gave quite a few pardons, and some of them were specifically for people seeking to regain their gun rights. Newsom just became Governor so he hadn’t issued any pardons yet so it may be hard to guess what he would do. People here also tend to think the worst of Governor Newsom. However, I am very optimistic about the number of pardons that will be coming from Governor Newsom considering whom he chose as his Deputy Legal Affairs Secretary for Clemency.

Last edited by ΜΟΛΩΝ ΛΑΒΕ; 05-01-2019 at 7:20 PM..
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Old 05-05-2019, 5:48 PM
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just out of curiosity, Did MyOdessa remove his own posts?
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Old 05-05-2019, 6:23 PM
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Quote:
Originally Posted by Spyder View Post
just out of curiosity, Did MyOdessa remove his own posts?
Obviously.
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