DOJ records help!

[jacknicholson]

Looking for assistance,

I recently purchased a hand gun at Greta's Guns and got a 'denied' notice from the California DOJ. It said I have a felony on my record. I did a live scan previously and I did see they had a felony conviction from 40 years ago but I knew it was wrong as soon as I saw it.

I filed a Proposition 47 reduction in April of this year with the Superior Court of Los Angeles but instead of getting a court date I got a letter saying 'A review of your case indicates that you were convicted of Section 459 as a misdemeanor. However, the record with the Department of Justice reflected the case as a felony and the Court has sent an update to the Department of Justice to amend your record.'

I have been trying to contact the DOJ to find out what the status is on amending the record but there is no clear way to contact someone. Their phone numbers are all automated response and their contact page simply gives an automated response saying they can't give legal advice. Very frustrating. I did send a certified letter to the DOJ containing copies of the letter from Superior Court, sent on August 4th.

Any suggestions for next steps?

Thanks in advance for any help you can provide,

[hermosabeach]

Have patience when dealing with a government entity or hire a good lawyer.

[SkyHawk]

Wait 30 - 60 days, do another livescan. They're not real fast over at DOJ getting things done. A lot of patience will be required as you sort this out.

Good luck!

[P5Ret]

Your probably going to need a certified copy from the court, just a letter may not cut it. Keep in mind that the record error may not be in Ca, as it could also be in the FBI database in error.

[SkyHawk]

Good point - this error has probably been transmitted to FBI NCIC. You should also get your FBI rap sheet.

If you use Option 2 - an 'approved channeler' you will get the record back very fast, perhaps in hours.

https://www.fbi.gov/services/cjis/identity-history-summary-checks

[jacknicholson]

OK, Here is what I will be doing:
1. Contact Superior Court and request certified copy of the notice to DOJ.
2. Exercise patience because I don't have $$$ for a lawyer, which would likely require patience as well.
3. Looking into Option 2

Thanks for the very fast responses.

Will post status updates for the benefit of others.

Cheers,

[jacknicholson]

Update!

Getting the runaround at Superior Court but not giving up.

Went to Identogo in Glendale to get finger prints rolled and request FBI background/history. Had results in my email in less than an hour and the results did not show a felony.

Seems like California Department of Justice is the only entity with the wrong data. And the only reason my DROS was denied.

Will keep on the Superior Cout to get the certified document, multiple copies if I can.

Trying to exercise patience,

[SkyHawk]

You should also get a certified copy of the court record that shows you were convicted of a misdemeanor (the plea, the adjudication of guilt, whatever document it was). That is probably just as important to have.

And you should file for a 1203.4 expungement, and get that misdemeanor off your record. You can usually do that yourself. The court where you were convicted should have info, most usually have a wesbsite with all the forms you need and a step by step guide.

Good luck and let us know what happens!

[jacknicholson]

SkyHawk, Thanks for the reply. I will do as suggested.

On a side note: I just spoke with Greta's Guns again and they suggested I go ahead and do another LiveScan. Not sure how I can contest the records by doing that. Doesn't it just produce a copy of the current rap sheet?

[losangeleno]

Looking for assistance,

I recently purchased a hand gun at Greta's Guns and got a 'denied' notice from the California DOJ. It said I have a felony on my record. I did a live scan previously and I did see they had a felony conviction from 40 years ago but I knew it was wrong as soon as I saw it.

I filed a Proposition 47 reduction in April of this year with the Superior Court of Los Angeles but instead of getting a court date I got a letter saying 'A review of your case indicates that you were convicted of Section 459 as a misdemeanor. However, the record with the Department of Justice reflected the case as a felony and the Court has sent an update to the Department of Justice to amend your record.'

I have been trying to contact the DOJ to find out what the status is on amending the record but there is no clear way to contact someone. Their phone numbers are all automated response and their contact page simply gives an automated response saying they can't give legal advice. Very frustrating. I did send a certified letter to the DOJ containing copies of the letter from Superior Court, sent on August 4th.

Any suggestions for next steps?

Thanks in advance for any help you can provide,

Yup, Contact your local Senators office, they will call the DOJ records review dept. and get you sorted out. Also ask them to make sure DOJ also updates your Federal criminal history to show the amended conviction. This process is faster & far less painful the dealing with DOJ time bandits.

[jacknicholson]

I used the 'contact us' form on the website of Senator Bob Hertzberg. He is in the Van Nuys district where Superior Court is. But after that, I found Senator Henry Stern in my home district, so I will call his office to see if they can help.
Thanks,

[Win231]

The penalty for a charge of SD misdemeanor burglary is one year imprisonment in the county jail and a maximum fine of $1,000. SD felony burglary carries a two to three year sentence in a California State Prison and a maximum fine of $10,000."

[jacknicholson]

Win231, To be clear, the conviction 40 years ago was a misdemeanor with no jail time at all and no fine.

The good news is, Superior Court records and FBI database reflect the records correctly. Only the DOJ is wrong.

As losageleno suggested, I contacted my Senator's office yesterday. They said they would reach out to their contacts at the DOJ and I should give it a few days.

So far I have followed the suggestions of other members and really appreciate their helpfulness.

[Win231]

According to the 4473 form, it does not matter whether you were convicted of a felony or misdemeanor or whether or not you served any jail time. The question reads:

"Have you been convicted in any court of a crime for which the judge could have imprisoned you for more than one year, even if the judge actually gave you a shorter sentence?"

[RickD427]

Doesn't one of the questions on the yellow form mention conviction of any crime where the sentence is one year or more?

"Second degree (SD) or “commercial burglary” can be charged as a felony or a misdemeanor. The penalty for a charge of SD misdemeanor burglary is one year imprisonment in the county jail and a maximum fine of $1,000. SD felony burglary carries a two to three year sentence in a California State Prison and a maximum fine of $10,000."

According to the 4473 form, it does not matter whether you were convicted of a felony or misdemeanor or whether or not you served any jail time. The question reads:

"Have you been convicted in any court of a crime for which the judge could have imprisoned you for more than one year, even if the judge actually gave you a shorter sentence?"

Gents,

Please check out the provisions of Penal Code section 17(b). Here is the text:

(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

On the surface, section 17(b) doesn't harmonize very well with federal statutes defining a felony. That confuses a lot of folks.

The best simple summary of how section 17(b) works is this: A "wobbler" is a felony, and nothing less than a felony, until is "wobbles." Then it's a misdemeanor, and nothing more than a misdemeanor, from that point on.

Many folks get nutted up over the federal language on the Form 4473 asking "Have you been convicted in any court of a crime for which the judge could have imprisoned you for more than one year, even if the judge actually gave you a shorter sentence?." I'll leave it for the lawyers on this forum to hash that one out in cases where the judge "wobbles the offense". That's mostly an academic question. It's extremely rare for a judge to "wobble" an offense. In nearly every case, it's the prosecuting attorney who "wobbles" the offense at the time charges are filed.

When that occurs, the maximum penalty that the judge can impose is for a misdemeanor. The judge lacks authority to "unwobble" the charge to impose a felony penalty. In practice, the most commonly encountered misdemeanor "wobbler" cases do harmonize well with the 4473 language.