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RESTORING YOUR GUN RIGHTS AFTER A CONVICTION

As an Orange County criminal defense attorney, I often get calls from individuals who were previously convicted of an offense that resulted in a ban on that caller’s right to own or possess a firearm. The gun laws in this state are confusing. No wonder a person convicted of a crime in California may be completely confused about his or her 2nd Amendment rights post-conviction. Under California law, all felony convictions and many misdemeanor convictions not only punish the offense but bar the defendant from owning or even possessing (for example, borrowing a gun from a friend) any firearm. That means even hunting is off the table. In the case of a felony conviction, this prohibition is for life! For most affected misdemeanor convictions, the prohibition is for ten years.

MISDEMEANOR CONVICTION

Not all misdemeanor convictions carry the firearms ban. However, many do. This includes all misdemeanor domestic violenceconvictions and restraining/protective order violations. Also included are wobbler crimes that even when convicted as a misdemeanor, the defendant loses his or her gun rights. A “wobbler” is an offense that can be prosecuted either as a misdemeanor or a felony. Wobbler offenses that will result in a firearms ban, even if convicted as a misdemeanor, include assault, threatening a public officer or official, most criminal threats, stalking, battery, and all misdemeanors that involved a gun, such as negligently discharging a firearm or brandishing a weapon.

With most misdemeanor convictions, California gun rights are automatically restored ten years after conviction. There are exceptions, most notably a misdemeanor violation of Penal Code section 273.5 (domestic assault), which mandates a lifetime ban.

DOMESTIC VIOLENCE CONVICTIONS

While many domestic violence offenses are classified as misdemeanors, all domestic violence conviction place a ten-year ban on owning or possessing a firearm under California law. However, federal law overrides California law when federal Constitutional rights are at issue. Under federal law, a domestic violence conviction in any state mandates a lifetime ban. That means that even if California gun rights are restored, a person convicted of a domestic violence crime is still prohibited from owning or possessing a gun under federal law. Effectively, federal law mandates that a domestic violence conviction in any state bars a person from owning or possessing a firearm in any state for life.

FELONY CONVICTION

Under California law, all felony convictions subject the defendant to a lifetime ban on owning or possessing a firearm. But here, there may be some relief if the offense was a wobbler. Many offenses in the California criminal statute are wobblers.  Quite often wobbler offenses are prosecuted as a felony and can result with a felony conviction. As an experienced criminal defense attorney in Orange County, I always endeavor to get the charge dropped to a misdemeanor, in part to protect my client’s gun rights. However, depending on the circumstances, a defendant charged with a wobbler felony will can end up convicted on the felony charge.

In such cases, gun rights can still be restored if the defendant is not sentenced to serve any time in prison. Courts often sentence felony convictions on wobbler offenses to probation and/or some time in county jail. Under those circumstances, the defendant can petition the court to reduce the felony to a misdemeanor under Penal Code 17(b). Such petitions are usually submitted to the court after the sentence has been served and most often submitted along with a petition to expunge the conviction. If the petition is granted, the felony charge is reduced to a misdemeanor and the defendant, in most cases, will see his or her gun rights restored ten years after the conviction. Note that this relief is not available for all wobbler convictions and as discussed above, if it is a domestic violence conviction, federal law will ban gun rights for life.

As for straight felony convictions that cannot be reduced to a misdemeanor and/or domestic violence convictions, restoring gun rights is an extremely difficult process. Generally, it will require a pardon from the governor (or president) or a certificate of rehabilitation. Both remedies are long involved processes that unfortunately are rarely successful.

William Weinberg is an Orange County criminal defense attorney who cares about your right and works hard to protect his clients’ rights to the full extent of the law. That includes protecting his clients’ 2nd Amendment rights. If you want to learn more about restoring your gun rights, contact him for a free consultation at 949-474-8008 or email him at bill@williamweinberg.com.