Your Daily Defense: i’ve been convicted of a crime, can I own a gun now?

10 Oct

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If you are a lawyer in California, here is the research I’ve compiled to answer this question. Disclaimer: this is not, and should not be construed as, legal advice for a nonlawyer. It is merely a jumping off point for any lawyer seeking to answer this question for a client with a conviction of a California criminal offense. These cites are current as of 10/10/2013. I make no representations regarding their accuracy after that date.  Though, I try to stay in the know.

Right to Lawfully Own or Possess Firearms Under California Law: 17b is the way to be
After a felony conviction: 17b+firearm=you’re free

It is unlawful in California for anyone with a felony conviction to possess a firearm.  (Cal. Penal Code §29800(a)(a) [“Any person who has been convicted of a felony. . . . who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”])  Expunging the conviction under 1203.4 does nothing to restore a person’s right to own a gun under California Law.  (Cal. Penal Code section 1203.4 specifically provides that the section does not restore gun rights.)  Having the felony reduced to a misdemeanor under a section 17(b) motion after conviction and/or sentence, though, does restore a person’s rights as he can long longer be convicted of felon in possession of a firearm where the prior is the felony that was reduced to a misdemeanor. (People v. Gilbreth (2007) 156 Cal.App.4th 53, 58.)

 After a 10-year-ban misdo conviction: wait 10 years, dears
As far as a know, unless you’re a peace officer and make a special motion, there is no way to get your right to own a gun restored in fewer than 10 years when you have a misdo conviction for things like DV or 417 or any other enumerated misdo.  So, wait it out. Oh, and try not to get convicted of brandishing a firearm twice because that=lifetime ban.
 
Right to Own or Possess Firearms Under Federal Law: Once a felon, always a felon and no gunz for dem DV convictees 4LIFE
 
So here is the kicker. Advising someone about his rights to own a gun in California after he had a felony reduced to a  misdo or after the 10 year ban is lifted after a dv conviction is like helping someone open a marijuana dispensary.  I.E. that shit is still illegal federally so really you are just running a risk. How big is that  risk? You decide.  Fact is, as far as I can tell and someone can correct me if I’m wrong, under federal law, it does not matter that your felonies were reduced to misdemeanors or that your offenses were “expunged” under 1203.4 (as California defines expungement note other states are different); if you are found with a gun when you once in time were convicted of a felony you are guilty of felon in possession of a firearm under federal law. (United States v. Tallmadge (9th Cir. 1987) 829 F.2d 767, 772; Jennings v. Mukasey (9th Cir. 2007) 511 F.3d 894, 899.)  And dem feds have a lifetime ban of firearm possession for anyone convicted of a misdemeanor domestic violence offense. (18 U.S.C. 922(g)(9).) so you can own a gun in california as long as you are not in the United States. INTERESTING.
 

 

One Response to “Your Daily Defense: i’ve been convicted of a crime, can I own a gun now?”

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