Legal Question

[mikeallenbrown]

OK, so you guys probably get this same question a lot...let me apologize in advance: Sorry.

I live in CA, have all my life (31 yrs). Was convicted in 1999 of 452(b). Bottom line is, I was young and dumb, I take full responsibility.

I would like to legally own a gun....but only for home defense. Can I? ...ever? Now I am also married. Could my wife purchase and keep a handgun in our home without consequence to either of us? I know I need to ultimately ask a lawyer these same questions but I'd like to get some opinions here first. Lastly, is there a state that would make it easier is one way or another for me to do this? ....I can't stand CA anyway so I may move eventually.

Thank you all for your time.

Mike

[THE Gimper]

First, welcome to the forum.

You're right that the best thing you can do is talk to a lawyer, and beware of any legal advice you get on an internet forum. That said, you should send an email to CCWInstructor (greg@firearmstraining.com) he is a Subject Matter Expert on firearms laws in this state. He can probably give you the correct answer.

[Quietpi]

You need to talk to a lawyer for another reason. At some point, you can probably have the conviction expunged, or reduced if you were convicted of a felony. Too many variables, but you should definitely pursue it.

[CCWInstructor]

If you went to jail, you are fine. If you went to prison. You can never get a gun.

That difference is a misdemeanor or the felony.

[brightside]

I don't have time to look up the law, but here are some possibilities: If your wife had knowledge that you would be in unlawful possession of the firearm and gave you access, she could be charged with conspiracy to commit a crime and also as an accessory to the crime.

I'm thinking that if you are a convicted felon, it would preclude you from not only owning a firearm, but also possessing one.

As far as expungement of your record, I saw on TV that even Mel Gibson's DUI expungement has nothing to do with firearms laws, so I'm not sure expungement will help your situation.

Interesting case though. I imagine this happens all the time, where one spouse with a clean record wants the right to have a firearm around the house for protection. Hire a lawyer for an hour of his or her time and the best of luck to you.

[EM2]

It is my understanding that if a person has fully completed their punishment (that is to say served their time in jail/prison and completed probation) they may live in a household where firearms are present. That person may not own any firearms but may still be allowed to be around them and if needed to defend themselves or a loved one may then use that firearm.
Of course I am pleased to say I am NOT a lawyer. YMMV

[spc]

Welcome aboard mikeallenbrown.

spc

[Quietpi]

Mikeallenbrown, as attested to by all the above postings, you really need to talk to a lawyer. There are too many variables.

[Rob P.]

452(b) is a felony conviction. Bad decisions lead to lifelong consequences. You are barred from owning firearms for life.

[nomustache]

One can still be sentenced to jail vs. prison on a felony.

California Penal Code: 12021. (a) (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

[paul0660]

One can still be sentenced to jail vs. prison on a felony.

True. Many plea out so that they can spend their (short) time in jail instead of prison.

[Aurelius]

As things now stand, if your wife has a gun, you are deemed to be "in possession" of that firearm simply by being in possession of the premises where it is kept.
"In People v. Ratcliff, supra, 223 Cal.App.3d 1401, 273 Cal.Rptr. 253, the defendant used a handgun to commit two robberies approximately one hour and one half apart. [That court] observed that an ex-felon was prohibited from carrying a firearm even if pardoned or granted a certificate of rehabilitation, if his or her prior felony involved the use of a dangerous weapon. ( Id. at pp. 1409-1410, 273 Cal.Rptr. 253.) These considerations underscored Ratcliff's conclusion that a conviction for firearm possession by a felon represents “a unique circumstance in the minefield of section 654 cases in that this charge involves an important policy consideration.” ( Id. at p. 1409, 273 Cal.Rptr. 253.) The Legislature clearly intended, in **324 enacting section 12021, to minimize the danger to public safety arising from free access to firearms, a danger presumed to be greater when the person possessing the concealable firearm is an ex-felon. ( Id. at p. 1409, 273 Cal.Rptr. 253 [quoting People v. Bell (1989) 49 Cal.3d 502, 544, 262 Cal.Rptr. 1, 778 P.2d 129].)

The one thing that you have going for you is that if you have otherwise led a a crime free life, you may be able to get a certificate of rehabilitation. While such a certificate would not allow you to possess a firearm if the underlying felon was a violent felony, as stated above, a 452 is not a violent felony:

"We accept the concessions since neither a violation of Penal Code section 452, subdivision (a), nor a violation of Penal Code section 452, subdivision (b), even when, as to each violation, multiple structures are burned for purposes of Penal Code section 452.1, subdivision (a)(4), is a serious felony for purposes of Penal Code section 1192.7, subdivision (c), or a violent felony for purposes of Penal Code section 667.5, subdivision (c); therefore, the trial court could not properly rely on either of these prior convictions to impose sentence under the Three Strikes law (see Pen.Code, § 667, subd. (d)(1)) or to impose a Penal Code section 667, subdivision (a) enhancement. Neither of appellant's convictions in case No. GA036062, is listed as a serious felony or violent felony. We will vacate appellant's sentence and remand the matter for resentencing."
I suggest you hire an attorney who may be able to assist you in obtaining the certificate of rehabilitation, if you qualify. Otherwise you must streer clear of all firearms.

[Rob P.]

Originally Posted by nomustache

One can still be sentenced to jail vs. prison on a felony.

California Penal Code: 12021. (a) (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

This is what is referred to as a "wobbler" statute. The misdemeanor sentence possibility is ONLY available if the conviction could be either a misdemeanor OR a felony as provided in the specific statute. In order to sentence for the misdemeanor the court has to affirmatively find that the offense was only a misdemeanor. If the court does not make this affirmative finding, then the sentence is for a felony offense.

The OP's conviction was for 452(b) which is a FELONY statute. 452(d) would be a misdemeanor conviction/sentence. Unless the court reduced the conviction to a 452(d) offense (not done here) then the OP stands convicted of a felony offense and was sentenced for that felony.

A Cert of Rehab may (and I stress MAY) allow the OP to be in possession of a long gun while hunting. However, I do not know of any provision which would allow the OP to purchase/possess a handgun.

[brightside]

Originally Posted by brightside

I don't have time to look up the law, but here are some possibilities: If your wife had knowledge that you would be in unlawful possession of the firearm and gave you access, she could be charged with conspiracy to commit a crime and also as an accessory to the crime.

I'm thinking that if you are a convicted felon, it would preclude you from not only owning a firearm, but also possessing one.

Not to brag, but looks like I knew this one BEFORE even looking at the penal code.

[El Gato]

Originally Posted by CCWInstructor

If you went to jail, you are fine. If you went to prison. You can never get a gun.

That difference is a misdemeanor or the felony.

to add to that:
if you went to jail with a felony... and probation... it is a "wobbler" and likely an offense able to be dismissed and expunged.