This article contains a general summary of California laws relating to

A. CRIMINAL RECORDS REHABILITATION FOR FIREARM RIGHTS

In order to own and/or possess a firearm, both your California criminal history record and your Federal criminal history record need to be clear of any prohibitive offenses.  Below is a discussion regarding the latter of the two requirements, California criminal history record.

1. Obtaining California Criminal History

a. Why is my criminal history important?

In general, there are three common reasons for a firearm prohibition in California. 1) any person convicted of a felony is prohibited from owning and/or possessing a firearm; 2) persons convicted of certain enumerated misdemeanors as set out in Penal Code sections 12020 and 12021.1 are prohibited from owning and/or possessing a firearm for either ten (10) years or their lifetime, depending on the offense; and 3) persons taken into custody pursuant to Welfare & Institutions Code section 5150 may be prohibited from owning and/or possessing a firearm for five (5) years (Persons held in custody pursuant to Welfare & Institutions Code section 5250 are prohibited for life under federal law).  Other reasons for a person be in a prohibited category exist, but this discussion is limited to these three common.

b. How do I obtain my criminal history?   

The first step in evaluating a records rehabilitation case is requesting a Criminal History Record from the California Department of Justice (DOJ).  The Criminal History Record application request packet consists of a form, two fingerprint forms, and a fee.  The request takes about two months.  The Criminal History Record will set out an individuals entire criminal history including any arrests, convictions, and/or dispositions in California. 

c. I have my criminal history, now what?

Once a Criminal History Record is received, we are able to view the individuals criminal history and see what if anything is causing the prohibition, i.e. felony conviction or one of the enumerated misdemeanors.  However, if the criminal history does not appear to be problematic but the individual is prohibited from firearm possession, the next step is to call the DOJ and ask the DOJ why the individual is a prohibited from firearm possession because their criminal history looks clear of any problems.  Some DOJ employees are hesitant to talk about a third party's criminal history because the information is confidential and sensitive.  This phone call may help determine what is causing the problem.      

2. My criminal history looks fine, but how do I know for sure that I can possess a firearm without breaking the law?

If it is still unclear why there is a prohibition, then the next step is to request a Personal Firearms Eligibility Check (PFEC). The PFEC is a way to determine if a person is eligible to own and/or possess a firearm in California.  The Personal Firearms Eligibility Check application consists of a form and requires a fee.  The request typically takes at least 1-3 months to be processed.  DOJ will reply saying that the individual is eligible to possess and own firearms, ineligible, eligible to possess firearms but ineligible to own firearms, or the eligibility could not be confirmed. If the application is successful, the individual will receive a certificate with their name on it. If the applicant receives notice that he/she is not eligible, the letter will not state the reasons for the ineligibility. The applicant will need to contact DOJ to try to determine why the application was rejected.

B. Felony

A person convicted of any felony is prohibited from possessing a firearm forever.  Therefore, we must see if there is anyway to remove the felony conviction.  One way to do this is to reduce the felony to a misdemeanor. If there is no way to remove the felony conviction then the individual is only left with the option of seeking a pardon.

1. What types of felonies can be reduced?

Some offenses are "wobblers," which can be charged as either a felony or a misdemeanor.  If the felony offense is a "wobbler," then we may be able to reduce it to a misdemeanor pursuant to Penal Code section 17(b).  To determine if an offense is a "wobbler," look to the language of the statute.  In some cases it has been years since the conviction and the code number may have changed or is no longer in existence. We would suggest contacting an attorney to track down the statute for the past conviction in these cases. If the offense is punishable by either a fine or county jail or state prison then it is a "wobbler."  However, if the offense is punishable only by state prison then the offense is a "straight" felony.    

2. My offense is a "wobbler," now what?

If the offense is "wobbler," then a Motion to Reduce the Offense to a Misdemeanor (17b Motion) may be filed.  There are no time restrictions as to when this motion must be filed. However, the individual must not have served any time in a state prison for the offense.  If the individual served any state prison time then the offense cannot be reduced.

3. My offense is a "straight" felony, is there anything else I can do?

There are some situations where "straight" felony convictions which cannot be reduced to a misdemeanor can still be removed from the criminal record.  This requires an evaluation of the facts surrounding the felony conviction to determine if a Writ of Error Coram Nobis can be filed.

a. What is a Writ of Error Coram Nobis?

A Writ of Error Coram Nobis is essentially a motion to vacate the plea.  If successful, the conviction is vacated and the case is procedurally brought back to the moment before the plea was taken.  This creates a risk because the District Attorneys Office may choose to continue the prosecution of the case.  We cannot know if the District Attorney will choose to continue prosecution of the case, but factors that may help determine that are if the conviction is within the past few years, what the conviction was for, and the individuals criminal history.  It must be explained that although the conviction is now vacated, the offense may still be prosecuted.

b. I was convicted of a straight felony by a jury, can I still get a Writ of Error Coran Nobis?

The Writ vacates a plea therefore, it can only be filed in cases where the individual was convicted by plea.  Therefore, if the individual was convicted by a court or jury, the Writ is not applicable and cannot be filed.

c. Why does it matter whether I pled guilty to a straight felony or was convicted by a jury?

A Writ is premised upon the following requirements: 1) The Petitioner has shown that some fact existed which was not presented at the plea, and he would not have entered the plea if he would have known about the omitted fact (the "mistake of fact" must be such that it would have been impossible to convict a person for the offense charged if the fact had been known); 2) The Petitioner has shown that the evidence does not go to the merits of the issues in the case; and 3) The Petitioner has shown that the facts on which he relies were not known to him and could not in the exercise of due diligence have been known to him at a time substantially earlier that the time of his motion for the writ.  Generally, if these factors are met, the writ will be granted.  An individuals case must be evaluated under these factors.  In evaluating the writ, these are the only factors that should be looked upon, however, the Court and the District Attorneys Office will take into consideration the underlying case and the facts surrounding it.

d. What if my "straight" felony was reduced to a misdemeanor and then dismissed?
"Straight felonies" cannot be reduced to a misdemeanor pursuant to Penal Code section 17(b) or court order.  Judges do not have the authority to reduce a felony to a misdemeanor.  However, in the past, there was a period of time when Judges did reduce straight felonies to misdemeanors.  In this situation, the individual was charged and convicted of felony X.  After completion of probation, the Judge reduces the felony X to a misdemeanor and dismisses the conviction pursuant to Penal Code section 1203.4.  The individual now believes that he/she only has a misdemeanor conviction.  Unbeknownst to the individual, he/she is still a convicted felon and may not own and/or possess any firearms.  It is only after attempting to purchase a firearm that he/she realizes there is a problem with his/her firearm rights.  

C. Misdemeanor

A misdemeanor conviction does not generally cause a firearm restriction.  However, California has set out that certain misdemeanor convictions will create a 10 year firearm ban.   If convicted of these particular misdemeanors, the individual will be prohibited from possessing a firearm for 10 years. 
 
1. Is 10 years the maximum length prohibition for all prohibitive misdemeanors?

No.  California has also set out that certain misdemeanor convictions will create a lifetime firearm ban.  If convicted of these misdemeanors, the individual will be prohibited from possessing a firearm for his/her lifetime. Also, federal law prohibits an individual rom possessing firearms for life for a "Misdemeanor Crime of Domestic Violence."

2. Can I restore my firearm rights if the misdemeanor I was charged with was not a prohibited category when I was charged?

Maybe.  Depending on the circumstances, individual may also the petition the Court for relief pursuant to Penal Code section 12021(c)(3).  However, this is applicable only to misdemeanor convictions which were added onto the list of enumerated offenses set out in Penal Code section 12021.1 after the conviction occurred.  In other words, when the individual was convicted of misdemeanor Y, the offense was not listed in Penal Code section 12021.1 and did not create a firearm prohibition.  However, years later, the legislature added that offense to the list of enumerated misdemeanors.  Now, the conviction of misdemeanor Y creates a firearm prohibition.  The individual could not have known that in the future, this conviction would cause a firearm prohibition even though none existed when the plea was taken.  Therefore, Penal Code section 12021(c)(3) was created to allow for this type of situation.  However, it applies only if the misdemeanor offense was added to the enumerated list after the conviction. (This relief does not apply to federal restrictions for Misdemeanor Crimes of Domestic Violence.)

3. How do I restore my rights from a misdemeanor prohibition?

An individual with a misdemeanor conviction may seek relief through a Writ of Error Coram Nobis if the applicable factors are met.  Otherwise, he/she must either wait out the 10 year period or seek a pardon. 

4. My misdemeanor was domestic violence and it has been ten years, can I lawfully possess a firearm now since it was only a misdemeanor?

Please take note that there is an instance in which a misdemeanor conviction only creates a 10 year firearm ban in California, but under Federal law there is a lifetime ban.  Therefore, even after the 10 year period has passed, the individual may not possess a firearm because there is the lifetime Federal ban.  This scenario arises with a Misdemeanor Crime of Domestic Violence conviction.  In California, a conviction of Penal Code section 273.5 creates a 10 year firearm ban, but under Federal law, it creates a lifetime firearm ban.  As stated before, both an individuals California criminal history record and Federal criminal history record need to be clear of any prohibitions. 

5. DOJ is telling me that I have a Misdemeanor Crime of Domestic Violence conviction but I was convicted of battery under California Penal Code Section 242 and not domestic violence under section 273.5, are they wrong?

Not necessarily. A Misdemeanor Crime of Domestic Violence under federal law can be any crime that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, and the offense was committed by a current or former spouse, parent, or guardian of the victim, by a person with who the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Therefore, if the battery conviction, because it has an element of the use of force and if it was committed by a person that meets the criteria above, will be considered a Misdemeanor Crime of Domestic Violence conviction. Often we will see a person convicted of a 242 against a spouse and in some cases a 415(1), disturbing the peace, also committed against a spouse, prohibited for life from owning and possessing firearms for a Misdemeanor Crime of Domestic Violence conviction.