Legal Question in Criminal Law in California

Felony downgraded to misdomenor, civil rights restored 25 years ago. Will

background check allow gun purchase ?

Asked on 4/11/13, 7:03 am

2 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

If you were convicted of a CA felony, whether expunged or not, you are permanently barred from possession firearms of ammo. Nothing will change that.

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Answered on 4/11/13, 1:08 pm

Anthony Roach Law Office of Anthony A. Roach

I disagree with Mr. Nelson. I analyzed this from the context of California's penal statute prohibiting possession of a firearm by a convicted felon. My analysis is based on the actual penal statute, and not from the position of a gun owner attempting to clear the background check with the Department of Justice by using a properly registered gun dealer.

For years the statute prohibiting possession of a firearm by a convicted felon was Penal Code section 12021, subdivision (a). In 2012, the state legislature recodified many of the sections of California's Dangerous Weapons Control Law. The statute prohibiting possession of a firearm by a felon was renumbered without substantive change as Penal Code section 29800.

I mention this because the cases that I discuss here use the old statute number, but the substantive law itself remains the same.

The elements of the crime of a felon in possession of a firearm are conviction of a felony and ownership or possession of a firearm. (People v. Hilliard (1st Dist. 1963) 221 Cal.App.2d 719.) Case law is clear, however, that the statute is not violated if the prior felony was reduced to a misdemeanor.

The Courts of Appeal have reversed convictions for violations of Penal Code section 12021, where the predicate felony was reduced to a misdemeanor pursuant to Penal Code section 17. (People v. Galbraith (1st Dist. 2007) 156 Cal.App.4th 53.) A defendant cannot also be properly convicted of violating Penal Code section 12021 where out of state felony convictions have also been reduced to misdemeanors. (People v. Lewis (3rd Dist. 2008) 164 Cal.App.4th 533.)

Note that in both of these cases the defendant was charged and convicted at the trial court level , even though the appellate courts reversed the convictions. That means those defendants were not guilty of violating the statute, but were charged by law enforcement. Donít be surprised if you run into trouble if you have had a prior felony reduced to a misdemeanor, and are in possession of a firearm.

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Answered on 8/04/13, 12:14 pm

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