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

10 Oct

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.


Your Daily Defense: Top 3 Crim Cases this Week

16 Aug

It’s been kind of quiet in the California Court of Appeals and Cali Supreme Court.  The Ninth Circuit has been kicking stuff around but not too many interesting opinions.  Here are the top 3 opinions of the week:

1.  Cuevas, et al. out of Alameda County, California Court of Appeal, First District. Terrible opinion that says drawing blood from D for a DUI at the jail instead of a hospital with an officer who lacks the training to testify about whether the blood was drawn in a medically reasonable manner is a-ok.  Schmerber had some strong dicta that drawing blood outside of a medical setting, i.e. in a jail, is not ok: “Petitioner‘s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.”  The thing about dicta that they don’t tell you in law school is that every judge you will ever come across, in the trial court, in the appellate court, in the Supreme Court, essentially believes “dicta schmicta.”  Dicta don’t mean shit.  I still think the appellate court is wrong. I’ll tell you one thing. Ain’t no one is coming at me with a needle in a jail. That is REDONKULOUS.

2.  USA v. Ermoian and Johnson. out of dat Eastern District. Whoop Whoop Sactown! 9th Circuit.  Terrific opinion. I read this opinion and saw that it was by Judge O’Scannlin aka the most conservative dude on the 9th Circuit.  Here is the exact thought process that occurred in my mind as I read this opinion:  “ok, wait for it, time to eff us…..this sounds like we are not going to get effed… I need to wash my contacts? Does that say “reversed”?? O’Scanny the manny reversed a criminal conviction?  INTERESTING.”

To be fair, he had no choice.  The government’s position was redonkulous.  18 USC 1512(c)(2) makes it a crime to: “corruptly obstruct, influence, or impede, any official proceeding, or attempt to do so.”  18 1515(a)(1) defines “official proceeding” as, among other things, “a proceeding before a Federal Government agency which is authorized by law.”  The issue in this case was whether an investigation of the Ds by the FBI constituted an “official proceeding.”  I mean this is not rocket science. It is plain english. Obviously an FBI investigation is not an official proceeding.  An FBI investigation may be authorized by law but it is not a “proceeding”.  Thank you O’Scanny. I can’t bring myself to say I have a judge crush because of your track record, but I can bring myself to say thank you.

3.  USA v. Preston. out of AZ. Don’t get me trending on AZ.  The 9th decided to rehear this case enbanc.  It will be interesting to see what the result of this is because this case has very compelling facts demonstrating that D’s confession was false including:

  • D is mentally retarded;
  • It was clear D had no idea that he was signing a confession, especially because coppers told him he was signing an “apology” and when he protested signing an apology they told him it was just “a summary”;
  • The coppers effed up and told D the crime had occurred on a Friday (it actually occurred on a Wednesday) and D finally agreed he was home on Friday when, in fact, he was not home that day.  He was so suggestible he just went along with what they said.  In other words, he was given a false detail of the crime and he accepted it as fact.  According to Judge Noonan, who cites a book on interrogations, such a thing is a hallmark sign of a false confession.

Judge Noonan then goes on to say BTW I would ban penile plethysmography.  Dear Judge Noonan, JJC hearts your dissent.