Expungement and firearms law is a complex area of law. Please understand that the state of California has among the most convoluted and nonsensical gun laws to be found anywhere in the world. The following is a very simplified summary:
When a person is convicted of any felony in the state of California, he or she loses the right to possess a firearm for the rest of his or her life. Certain misdemeanors convictions also come with gun restrictions. For example, for a person convicted of the misdemeanor of simple assault (California Penal Code Section 242), that conviction results in a 10-year suspension of his or her right to possess a firearm in the state of California.
Certain felonies can be reduced to misdemeanors by the court. We are able to make this motion along with the expungement motion in many cases.
If the felony is reduced to a misdemeanor that does not itself carry a restriction on firearm possession, a person's right to possess a firearm is restored. (The person is no longer a "felon" and therefore cannot be guilty of the crime of being a "felon in possession of a firearm.")
At the end of this maze of California gun laws, it should also be remembered that there are federal gun laws that may also affect you.
A few examples will illustrate what can and cannot be done with regard to firearms rights:
- In 2010, a defendant is convicted of a simple assault (242). He gets an expungement in 2014. Can he now legally possess a firearm? NO. There is a 10-year ban under California law that does not run out till 2020. Possession of a firearm before that time is a felony, and the defendant can get into serious trouble.
- Defendant has a conviction for felony assault (245). This is a crime that can be reduced to a misdemeanor by the court. Our firm does an excellent job and the court both reduces the crime from a felony to a misdemeanor and expunges the conviction. Can he now legally possess a firearm? NO. The misdemeanor 10-year ban slides into effect as soon as the case is reduced from a felony to a misdemeanor. He cannot legally possess a firearm until 2020. (NOTE: The 10 years run from the time of the original sentence rather than the time of the reduction to a misdemeanor).
- Defendant has a conviction for commercial burglary (California Penal Code 459). He gets an expungement, but for whatever reason he either did not ask for, or the court denied his request to reduce the felony to a misdemeanor (Defendant did not hire our law firm). Can he now legally possess a firearm? NO. The expungement does not alter the "collateral" consequence of the original felony conviction that the person cannot lawfully possess a gun for the rest of his or her life.
Why Is It That A Reduction To A Misdemeanor Changes The Collateral Consequence But An Expungement Doesn't?
There is no good reason. California gun law is made by crazy people. We don't make the law, We just work with it.
OK, here we go. Defendant has a conviction for commercial burglary (California Penal Code 459). He gets the case reduced from a felony to a misdemeanor and has it expunged. Can he now legally possess a firearm? YES. Because there is no provision barring a person convicted of misdemeanor commercial burglary from possession a firearm, defendant now has his gun rights restored.
Just to illustrate how complicated gun law is, and to drive home the point that you really do need to consult a lawyer if this is important to you, here is one more hypothetical.
Defendant is convicted in 2010 for felony domestic violence. In 2014 he gets his conviction reduced from a felony to a misdemeanor. California has the same 10-year ban on possession of a firearm after a domestic violence conviction as after a misdemeanor assault conviction. In 2021 can the defendant legally possess a firearm? NO.
WHAT?! The answer is no. The reason the answer is no is because there is a United States federal law that says that a person convicted of any crime of domestic violence cannot ever legally possess a firearm ever again. An expungement has no effect on this federal law.
Again, this is area of law is extremely complex. If you are interested in having your firearms rights restored, you will need to speak to us about your particular situation.
Contact A Visalia Attorney: Understanding The Right To Carry And Expungement Law
For a free consultation to discuss expunging a felony or misdemeanor crime, Contact The Law Office of Gregory Hagopian in Visalia.