Legal question

[JSilvoso]

Two quick things

1203.4, while it's called an "expungement," doesn't really expunge anything. The paperwork typically reads that your "guilty/no contest plea was vacated, a plea of not guilty was entered, and the case was dismissed" (or words to that effect, different court clerks write it up differently). That really doesn't do a whole lot for you. The conviction still shows up on a background check, law enforcement can still see it when they run your RAP sheet, your prior conviction acts as a "past prior" for future charges (if you conviction is "priorable"). You are able to say on a job application that you have never been convicted but still have to disclose the conviction when applying for a state license, running for public office, or contracting with the state lottery. A REDUCTION is a whole other Penal Code section, 17. And a charge may be reduced at a number of different times: by the DA by modifying the complaint which they can do anytime (arguably) prior to plea/conviction; by the court after prelim or at time of sentencing; by the court after the conviction (to name a few). Of course, the charge has to be reduceable, meaning it can be punished with county jail time or state prison time AND it depends on the sentence you received. If the offense is punishable ONLY with state PRISON time it can't be reduced or if you were sentenced TO state PRISON time that also can't be reduced.

To answer your question: a COE should work. A COE (certifiacte of eligibility) is what is required before a person can work at a gun store. It determines whether a person can possess firearms, and essentially does the same thing as the Personal Firearms Eligibility Check (PFEC).

[psmith]

Thanks to everyone that was willing to chime in, although I don't think I will hear anything back in time to allow me to go hunting in Colorado this November with my buddy, I think I may actually be going next year, and putting Elk in my NEW crosshairs by this time next year.

After reading what I have here, and trying to understand it, I was able to actually find some more information on my sentencing.

Pages 9 and 10 of a 30 page document looked to me like they were the same form, and I thought they looked alike, I recently was able to read the chicken scratch and realize the 2nd one was the original sentencing, back in 11/1997. The 1st one was the after probation and my 1203.4 request. Its the wording there that had confused me.

11/1997 paper:
The "other" section on the bottom of the form is where it is hand written by the judge.

It says;
"This matter is declared a misdemeanor per PC 17b.
Probation costs are waived
Not possess a firearm
Volunteer work is deleted"

I am led to assume that the not posses firearm is part of my probation which is also mentioned higher up on the form under my restitution and penalty assessments.

On the 01/2001 paperwork.
"Deft's motion to reduce charge to a misd pursuant to PC 17(b)(3) is granted
Deft's PC1203.4 Petition is granted -
Order signed and filed"

(I still don't understand why 1/2001 summary says my "charge is reduced to a misd pursuant to PC 17(b)(3) is granted"... as the original paperwork already says at sentencing my charge was reduced to a misdemeanor per 17B at the time of probation be granted)

Anyways,

#1 I'll wait for my criminal background check (to verify original charge was a 17(b) reduction) and if it isn't, I assume I need a lawyer to fix this for me.

#2. I'll wait for my PFEC and/or COE to come back, and if I find that I am denied, I guess again, its time to retain a lawyer to figure out why I dont have 2A rights and why the DOJ doesn't have it as it should be, If I am supposed to have 2A rights, a lawyer can help me get all this fixed right?

[jtmkinsd]

Correct me if I am wrong.

The misdemeanor carries with it a 10 year ban on owning/possessing firearms...and typically judges do put the "Except" statement in the expungement so the 10 year ban stays in effect. But the expungement does keep him from being a "prohibited person" on a Federal level. So all he would have to do is wait the 10 years, and he should be good to go for owning/possessing firearms. Correct?

[J-cat]

It says;
"This matter is declared a misdemeanor per PC 17b.
Probation costs are waived
Not possess a firearm
Volunteer work is deleted"

I am led to assume that the not posses firearm is part of my probation which is also mentioned higher up on the form under my restitution and penalty assessments.

On the 01/2001 paperwork.
"Deft's motion to reduce charge to a misd pursuant to PC 17(b)(3) is granted
Deft's PC1203.4 Petition is granted -
Order signed and filed"

As long as your 1997 paperwork shows it to be a misdemeanor you should be GTG. The 2001 language is just an affirmation of the original judgment.

[Ron-Solo]

Get with a good firearms lawyer as soon as you can afford it. As a LEO, I've looked at a lot of these things when approving arrests as a watch commander. The way I intrepret what you have posted, it looks like the firearms resrtiction was only while you were on probation, which is pretty common.

You need the aid of a good lawyer to navigate this, but I think you will have better luck than you think.

Good luck

Ron

[MP301]

Get with a good firearms lawyer as soon as you can afford it. As a LEO, I've looked at a lot of these things when approving arrests as a watch commander. The way I intrepret what you have posted, it looks like the firearms resrtiction was only while you were on probation, which is pretty common.

You need the aid of a good lawyer to navigate this, but I think you will have better luck than you think.

Good luck

Ron

Ron is most likely spot on. It is common for them to remind you that during your probation having guns is a no go (a lot of times it says no weapons of asny kind). And, I dont see anything about a 10 year prhiobition ( Its been longer then 10 years anyway ) unless its in a statute somewhere.

Please let us know what happens....

[SFgiants105]

If you have any doubt concerning your ability to possess firearms you can have Cal DOJ run your background and determine whether you can possess firearms using the Personal Firearms Eligibility Check (PFEC) form from the California Department of Justice website at http://ag.ca.gov/firearms/forms/pdf/pfecapp.pdf

From what you are saying it sounds like your case was reduced to a misdemeanor from a felony 12280(b) conviction. In that instance you SHOULD be eligible.

A dismissal under 1203.4 does nothing to restore firearm rights.

I was about to say this, but saw it on my way down to the quick reply box.

[psmith]

All forms sent in (PFEC, COE, Criminal Record Check), now time to sit and wait, I will let everyone know the outcome when I have one, THANKS for the encouragement and the pointers. I think I have a good idea of where to go if I have to go somewhere. *Sure* would be nice to NOT have to spend my hard earned money correcting a paperwork error, but if you have to, you have too.

(quick other comment) I even talked to my sister today, whom I share ownership on a tow-able camping trailer with. Seems she has not renewed the vehicle registration and since she doesn't plan on using it this year, she had planned on taking the 60 dollar late fee and making the payment when she could afford it, seeing as fee's don't increase after 60 days late (I guess 0-30 = $w, 31-60 = $x, 61-90 = $y, and >91 days = $z). I'm not sure what a registration of vehicle issue will do to my findings, so I wrote a check for the trailer registration and asked her to mail it this afternoon. Sure hope that a certificate of eligibility or PFEC wouldn't come back negative because of a DMV issue like a DROS would?

[psmith]

more info, questions, background check!!! thanks

I'm still waiting on my PFEC and/or Cert Of Eligibility. Also, my father offered to give me some time with his attorney in Orange County for a couple of hours, they are friends and he offered to look at my paperwork via email. So I haven't replied or talked to him since, but he emailed me back stating that the paperwork I sent him, shows that ultimately my felony was reduced to a misdemeanor and my misdemeanor wasn't a prohibiting charge, so my rights should be restored and good to go.

I got back my criminal background check today, and I believe it says that that I WAS charged with a felony, and I don't see anything on it showing that is was changed, reduced, or cleared up. Of course, without any legal knowledge / training, who knows if what I am reading is what I am reading. I am starting to save my money now so that I can hire on one of the advocate lawyers recommended, but in the meantime, since I already posted this and have gotten much response, I wanted to ask a question hoping Joe and/or Ron or one of the other professionally qualified (arm chair lawyers welcomed, as are "this happened to me and ......." responses just the same, would attempt to answer it.

I have attached the original minutes - pronouncement of judgment because it is where my questions stem from, and where I think that the DOJ may have it wrong??

On the Criminal Minutes - Pronouncement of Judgment, (my sentencing basically and my understanding) it clearly states in the notes section:

"This matter is declared A misdemeanor per PC 17b."

(see the attachment), this would leave me to believe NO FELONY conviction took place, at all, it was changed prior to sentencing (considering this is the Pronouncement of Judgment).

Yet, on the criminal report I just got from DOJ, it reads:

12280(b) PC-POSSESS ANY ASSAULT WEAPON
*DISPO:CONVICTED
CONV STATUS: FELONY
SEN: 3 YEARS PROBATION, 1 DAYS JAIL

Am I reading or understanding something wrong? (I included the entire DOJ background report (it says page 1 of 2, but page 2 is blank).

It also includes a CLAIM OF ALLEGED INACCURACY OR INCOMPLETENESS, and asks for information and a brief explanation, and asks to attach any official documents or court orders that would verify my claim?

#1, Am I reading the background check wrong? I dont see anything mentioning the 2nd reduction to a misdemeanor per 17(b)(3) that exists on yet another Pronouncement of Judgment form from my paperwork from after probation, BUT, shouldn't it NOT even include the CONV STATUS:FELONY on the form per the original sentencing information stating matter declared a misdemeanor per PC 17b, and say something like CONV STATUS:MISDEMEANOR or MISDEMEANOR PER PC17(b) or something like that?

#2, should I be filling out the inaccuracy form and attaching both my pronouncement of judgments to the DOJ attempting to get the original CONV STATUS changed, and if not that, at least something from the 2nd judgment where it says on the form "Defendants motion to reduce charge to a misdemeanor pursuant to PC 17(b)(3) is granted"


I suppose that everything that I am saying is actually stated on the criminal report and I just cant read it correctly or am missing something? Any ways, the lawyer last night told me that I should have my gun rights back, etc, etc. Just like most people chiming in here, and who knows if I do or don't, still waiting on the PFEC and COE I sent out, but I have been told by plenty of forum people that what the DOJ has on file is often incorrect because the courts make no effort to get it right when it comes to "helping" you, and that plenty of times people have to put lots of effort into getting it right.

Really hoping Joe or someone reads the criminal report and clarifies it for me
or at least can offer a suggestion. Sure felt good thinking that the criminal record was going to come back not mentioning the felony because it was never sentenced a felony, and that everything was going to be okay. I did happen to find some correspondence between my and my lawyer, where I wrote him telling him how important trying to keep my gun rights would be in a family that shoots skeet, hunts, and all that. (I was in the hospital for a diabetic coma about 3 weeks after my arrest, and for the first 6 weeks or so, we talked via USPS Mail), and his response was along the lines that since it was a wobbler and this was the first trouble I had ever gotten into, that real good odds that it would go down to a misdemeanor with a possible plea bargain, and he would try his best to work on helping me keep those rights in the long run. I thought about calling him, and did, but unfortunately, 4 years ago, he passed away in a car crash. I didn't dig any further there, just gave the lady who answered his cellular number my "condolences" and moved on.

Thanks guys..

[J-cat]

Rap sheets are often wrong. Get the abstract of judgment and go back to court.

[psmith]

I'm assuming by abstract you mean all the paperwork I went down to the court house and picked up (part of what I am attaching above), like the Minutes and Pronouncement of Judgment with the Superior Court judges signatures and all that, then go down back to the court and do what? Is there a way to request my paperwork be updated at DOJ? Or do I really need to pay a lawyer to do this part for me? (I'm not afraid of hard work, just as long as its got instructions to follow and not cryptic filled with options allowing interpretation and assumptions? <- supposed to be funny)

[J-cat]

The abstract of judgment looks like this (no this one ain't mine):

[J-cat]

Submit the 8706 form with the corrected abstract to DOJ:

If you feel the information contained within your criminal history record is incorrect, you may submit a formal challenge to the Department of Justice only after you have received a copy of your record from the Department pursuant to California Penal Code sections 11120 – 11127. Bureau of Criminal Identification and Information (BCII) form 8706, “Claim of Inaccuracy or Incompleteness” will be mailed to you along with your record. Submit form 8706 and any supporting documentation to the Department of Justice to the address provided on the form. The challenge will be reviewed and a written response will be provided along with an amended copy of your criminal history record if appropriate.

[psmith]

I'm not finding any links on where to get a abstract for criminal judgments (plenty for small claims stuff). I think I asked, but will the pronouncement of judgment form work? (it has a judges signature on it, and its written on it that its declared a misdemeanor), I attached it to the above, take a look?

[loather]

(no this one ain't mine)

I'd sure hope not! Short-Eyes baaaad!!