Friday, January 8, 2016

How to Restore Gun Rights in California

There's been a lot of talk in the news media lately about keeping guns out of the hands of felons. Gun control is one of the most divisive issues today, and California has decided to take an aggressive lead in the movement to further restrict firearms.

If you are ineligible to purchase or possess firearms due to a criminal conviction in California, there are a couple ways by which you might be eligible to restore your Second Amendment rights.

California law offers several different options for cleaning up your old criminal record. Some (not all) of those options may have the effect of restoring gun rights. I'll try to explain the differences between these legal procedures.

Post Conviction Relief in California

After a defendant is convicted of a crime in California, state laws offer him a few different ways to clean up his criminal record. These procedures are collectively called "post-conviction relief".

Forms of post-conviction relief in California include:

-1203.4 Dismissal (commonly called an "expungement"):  A successful 1203.4 petition may change a defendant's criminal record so that the case shows up as a "dismissal" rather than a "conviction" when a prospective employer runs a background check. It's a great option if you're trying to get back to work after being convicted of a crime, but an expungement does nothing for gun rights. If you read the instructions on the paperwork carefully, they clearly inform the petitioner that a 1203.4 dismissal will not relieve him of his duty to register as a sex offender and will not restore his rights to purchase or possess firearms.

-Prop. 47:  In 2014, California voters approved Prop. 47. That ballot initiative reduced many crimes (such as drug possession) from felonies or "wobblers", to straight misdemeanors.  That law became retroactive, so people who had been convicted of felonies many years ago were suddenly eligible to apply to have their old cases reduced, even if they performed poorly on probation and had subsequent arrests. Unfortunately, a retroactive reduction under Prop. 47 will not restore gun rights, either.

-PC 17(b):  Section 17(b) of the California Penal Code allows judges to reduce some felonies to misdemeanors "in the interests of justice". Not all felony convictions are eligible for reduction under 17(b). Only "wobblers" potentially qualify. Wobblers are crimes that can charged as either felonies or misdemeanors, at the discretion of the DA. Common wobblers include domestic violence with injury, vehicular manslaughter and making criminal threats.

A reduction under 17(b) will restore firearms rights, assuming the defendant has no other disqualifying factors. Even if a felony conviction for domestic violence is reduced to a misdemeanor under 17(b), though, the applicant may still be ineligible to possess firearms. If the defendant and the victim were married at the time of the offense, federal law prohibits the defendant from purchasing or possessing firearms for life. If they were NOT married and the crime was treated as a misdemeanor, federal law does not apply. California law, however, still prohibits anyone with a misdemeanor conviction for domestic violence from possessing firearms for a period of 10 years following the conviction.

A judge may grant a 17(b) petition at any time -- before trial, after trial, while the defendant is serving a sentence, or after the defendant has completed his sentence.

In order to receive a reduction under 17(b), the applicant must demonstrate "good cause", and must demonstrate that the requested relief "serves the interests of justice". There is no magic formula for satisfying these requirements. Judges are reluctant to grant these requests, so the petitioner must be prepared with some pretty compelling arguments. In almost every post-conviction 17(b) hearing I've ever attended, the judge begins the proceedings with some version of this speech:

Back when this case was filed, the DA had the choice of treating the matter as either a felony or a misdemeanor.  They made the decision to file a felony charge, based on the nature of the offense and the defendant's criminal history.  The defendant had a fair opportunity to negotiate a settlement and he chose to accept a plea deal which included a felony conviction.  He did not have to accept that deal, but he did so because it was in his best interests at the time.  Now he wants to back out of that deal.  Explain to me why I should allow him to renege on his end of the bargain.

Judges like to hear these types of arguments (if they're true and relevant):

-Due to some change in circumstances, a plea deal that seemed fair at the time is no longer fair. "Change in circumstances" is the key here. The judge doesn't want to hear that you received a bad deal at the time of sentencing; he wants to hear that you received a fair deal at the time of sentencing, but things are so different today that the offer you accepted no longer serves the interests of justice.

-The defendant has really turned his life around in a commendable way. He has remained law-abiding for some length of time and he has made serious contributions to society in the form of community service, etc. He was in a dark place years ago, but he has now completed counseling, earned a diploma, gotten married and had kids, and addressed the issues that once caused him to commit crimes. It helps if the petitioner can explain how this felony conviction is preventing him from doing more good for his community (e.g., if the case were reduced, he would have more opportunities to counsel at-risk kids, go back to school, join the military, become a licensed therapist, etc.).

-The DA agreed in plea negotiations that the defendant would be eligible for 17(b) relief after certain conditions were met, and those conditions have been met. Conditions might include paying all victim restitution, completing some form of counseling, remaining law-abiding for a period, etc.

Judges do not want to hear a 17(b) petitioner argue that he is factually innocent of the charges. If a petitioner maintains that did not commit the crime(s) for which he was convicted, he should have fought the case when he had the opportunity to do so. If he was convicted by a jury, he should have followed the proper channels for appealing his conviction. A 17(b) hearing is not the time to argue guilt or innocence -- those issues have been determined a long time ago. The 17(b) hearing is the petitioner's chance to convince a judge that his old felony conviction is no longer fair and appropriate.

-Gubernatorial Pardon

The last option for restoring gun rights in California is to apply for a pardon from the Governor. The Governor of California has the authority to pardon individuals for certain felony convictions that occurred within the state. The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.

According to the Governor's office:

A California Governor's pardon is an honor traditionally granted only to individuals who have
demonstrated exemplary behavior following conviction for a felony. A pardon will not be
granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction. The Governor has complete discretion in deciding whether to grant a pardon. A pardon is a privilege—not a right—and not granted to every person who applies.

A gubernatorial pardon will restore gun rights in most cases, unless the applicant was convicted of a crime involving dangerous weapons.

Consulting with an experienced, local attorney will significantly improve your chances of success if you're considering any of the options described here. If you or a loved one has questions about cleaning up a criminal record or restoring gun rights in California, call us for a free consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Gun Lawyer