Can a Convicted Felon Own a Gun in CA?
How Long Before a Convicted Felon Can Own a Gun in California?
Restoring gun rights in California is not easy, and often it is not even possible. Theoretically, if you are convicted of any felony, then you are subject to a lifetime ban.
Conviction of certain misdemeanors also results in a lifetime ban, while conviction of other misdemeanors results in a ban of only ten years.
Nevertheless, there are two loopholes that will allow you to recover your gun rights under certain very limited circumstances.
Loophole #1: Converting A “Wobbler” Offense To A Misdemeanor After The Fact
A “wobbler” offense is an offense that can be charged as either a misdemeanor or as a felony, depending on the circumstances.
The receipt of stolen property is an example of an offense that is considered a “wobbler” offense in California, depending on the value of the stolen property that you received.
One way to regain your gun rights in California is to convert a “wobbler” offense from a felony to a misdemeanor. Under certain circumstances it is possible to do this after you have already been convicted of a felony, so you will no longer be a convicted felon.
If you do this, the extent of your loss of gun rights will depend on the penalties for that particular misdemeanor. In other words, you might become eligible to own a gun again.
Loophole #2: Seek A Pardon From The Governor Of California
A pardon relieves you from any further penalty for a crime. If you are in prison, for example, you can walk free with a pardon. A pardon does not exonerate you from the crime.
It only relieves you of its consequences. Remember, the Governor of California can only pardon you for a state law offense, not for a federal offense. Likewise, only the governor is qualified to pardon you for a state law offense.
The governor enjoys nearly 100 percent discretion in the decision of whether to issue you a pardon. In most cases, you must have lived in California for at least seven years.
You must also have been free of involvement in any criminal activity for at least 10 years. The governor can deny your pardon request for almost any reason, or for no reason at all.
If you live in California: Petition the Superior Court for a pardon
If you live in California, you must undergo a two-step process:
- Submit a petition to a California Superior Court for a California certificate of rehabilitation. This is not a pardon, but you can use it to qualify for a pardon.
- If the Superior Court grants your petition, your California certificate of rehabilitation will become a petition for a pardon from the governor.
If you live outside of California: Apply directly to the Governor for a pardon
If you live outside of California, you cannot seek a pardon by petitioning a Superior Court for a California certificate of rehabilitation. Instead, you must apply directly to the Governor’s Office.
When You Cannot Recover Your Gun Rights
No legal loophole can restore your right to own a gun in California if you committed a felony involving:
- Domestic violence, or
- The use of a “dangerous weapon” (not necessarily a gun).
Check the laws of other states to see whether you can possess a gun outside of California. source
How Can A Convicted Felon Receive Firearm Rights?
The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms except in certain circumstances. One of these circumstances is if you are a convicted felon. Felons often find it difficult to have applications for firearm rights accepted, especially if they were convicted of violent crimes. For felons with a criminal record, it is harder but not impossible to legally own a gun. They just need to go through the necessary bureaucratic and legislative processes. So, how can a convicted felon receive firearm rights?
State vs. Federal Gun Restoration Laws
Under federal law, convicted felons lose their firearm rights, which is a decision that stemmed from a law developed in 1934. At that time, the federal government mandated that no person convicted of a felony involving violence would be able to have his or her firearm rights restores. Since the Gun Control Act was passed in 1968, anyone convicted of a felony – whether or not it involved violence – loses his or her firearm rights.
However, state laws may differ from those at the federal level. Varying state by state, gun restoration laws offer convicted felons opportunities to regain their firearm rights, and in some places, it is easier than others.
For instance, in Indiana, a person can petition to the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement – but not until five years after his or her sentence has been completed.
All in all, if you are looking to have your firearms rights restored, be sure to look into your state’s laws to ensure you are proceeding legally, with the correct information.
Step One: Figure Out Who Charged You With The Crime
Depending on whether the felony was a state or federal offense, a convicted felon’s process of getting the rights to bear arms will vary. This is known as adjudication and will involve contacting the Department of Justice in the state or one of several federal agencies.
Ways to getting Firearm Rights Restored
Many states and agencies have an existing form for felons to apply to have their civil rights restored. Generally speaking, these forms will only be accepted if the person can prove that their life has changed and that they are reformed. The person may be required to show proof such as a steady job and ties to the community, and they may need to wait a significant amount of time before being allowed to apply. The process involves finding this form and filing it with the appropriate authorities.
1. Felony Expungement
As previously stated, some states will allow convicted felons a second chance. Apply for felony expungement means the felon’s criminal records will be erased (as though the crime never happened), thus restoring his or her rights to purchase and carry a firearm (if applicable in his or her state of residence).
Check your state’s website to determine what makes someone eligible for expungement, and discuss further with an attorney that is able to analyze your particular situation. If you are eligible for expungement in your state, you must first file a petition with the courthouse.
After the proceedings, your record may be expunged, in which case you may be able to restore your firearm rights.
2. Petition for Restoration of Firearm Rights
Lastly, in some states, you may be eligible for a Petition of Restoration of Firearm Rights. Typically, the state will only consider you if you were charged with a crime unrelated to violence.
3. Governor’s Pardon
Several states like California, Louisiana, New Jersey, New York, and Oklahoma will restore a convicted felon’s firearm rights if he or she receives a governor’s pardon. To receive a Governor’s Pardon, you must apply through your state of residence – but only if you are eligible.
4. Federal Pardon
The only other federal recourse is to petition for a presidential pardon. This process requires the assistance of a lawyer and can restore a variety of civil rights including the right to hold public office in addition to the right to bear arms.
It is easier to get civil rights restored if a felony conviction was given by a state court rather than a federal court. However, a problem arises when state laws conflict with federal laws, which are often stricter and may take precedence even if the conviction was ruled by state authorities.
If this is the case or if a felon had his conviction given by a federal agency, they will have to file with the:
- U.S. Attorney General’s office
- The Bureau of Alcohol, Tobacco, and Firearms
The agency will then review an application to restore the rights to bear arms. The problem then becomes that this agency is notorious for simply failing to review the documents, leaving former convicts in a sort of legal limbo while waiting for their firearm rights to be restored. This is the case even if felons were not guilty of violent crime convictions. source
How to Restore Your Gun Rights After a Criminal Conviction
California’s firearms laws are strict and federal laws are even stricter. If you are convicted of a felony or certain misdemeanors, you will lose your right to possess a gun in California.
You also may not own or possess a gun if you are:
- addicted to narcotics drugs,
- mentally ill,
- involuntarily committed on a psychiatric hold twice in one year,
- under the age of 18,
- prohibited from possessing a gun by court order or as a condition of probation, or
- prohibited by federal law from possessing a gun.
Conviction of a felony results in a lifetime ban on gun possession.
Conviction on most misdemeanor charges does not prohibit you from having a gun. But a few weapons-related misdemeanor convictions do subject you to a lifetime ban. Two convictions for brandishing a firearm… or just one conviction for assault with a firearm conviction…will cost you your gun rights for life.
In addition, approximately 40 misdemeanors carry a 10-year firearms ban. These include:
- brandishing a weapon, and
- making criminal threats.
Restoring your Second Amendment right to bear arms can be difficult and complicated. We urge you to read the full article, below, for complete information.
In general, however, it may be possible for your gun rights to be restored following a conviction as long as it was not for:
- a felony involving a dangerous weapon, or
- a crime of domestic violence.
There are two basic ways to have gun rights restored after an eligible conviction:
- by having a “wobbler” felony reduced to a misdemeanor, or
- by receiving a pardon from the California governor.
A “wobbler” is an offense that can be charged as either a felony or a misdemeanor. If you were convicted of a wobbler as a felony, you can petition the court to have it reduced to a misdemeanor. Once your felony is reduced you will be subject only to the restriction — if any — that the crime carries as a misdemeanor.
The second way to have your Second Amendment right to bear arms restored after a California conviction is through a pardon by the governor.
You must apply directly to the governor for a pardon if:
- you live outside California, or
- you were convicted of certain misdemeanor sex offenses.
Otherwise, obtaining a pardon is a two-step process:
- Petition the superior court for a California Certificate of Rehabilitation.
- If the petition is granted, it automatically becomes a petition for a pardon from the California Governor.
California’s governor has complete discretion to grant or deny pardon requests. Generally, applicants must have resided for a minimum of seven years in California. They must also have had no criminal involvement for at least 10 years.
We are a criminal defense firm with offices throughout California and Nevada. As former cops and prosecutors, we have first-hand knowledge of California’s gun laws. And we know what it takes to restore your right to bear arms.
1. California Firearms Restrictions
Before we discuss how to restore your gun rights, let’s review what can make you lose them in the first place.
California law does not require most adults to obtain a license to purchase, receive, own, or possess a gun.
Five categories of individuals, however, are banned from exercising gun rights in California:
- felons (that is, anyone convicted of any felony offense in any jurisdiction);
- persons convicted of certain misdemeanor offenses (see below);
- narcotics addicts;
- persons who suffer from mental illness; and
- minors (anyone under 18).
Let’s take a closer look at each of these categories.
Penal Code 29800 PC is California’s “felon with a firearm” law. It imposes a lifetime firearms ban on anyone who has been convicted of a felony offense in any state or country.
This lifetime ban also applies to people with certain misdemeanor convictions:
- people with two or more misdemeanor convictions for Penal Code 417(a)(2) PC, California’s “brandishing a firearm” law; and
- people with just one misdemeanor conviction for:
- California Penal Code 245(a)(2), assault with a firearm;
- California Penal Code 245(a)(3), assault with a machine gun or assault weapon;
- California Penal Code 245(d) assault with a firearm against a peace officer;
- California Penal Code 246 PC, shooting at an inhabited dwelling or car; or
- California Penal Code 417(c), “brandishing a firearm” at a peace officer.
The lifetime ban also applies to minors who were convicted of any of the above offenses when tried as adults.
Generally speaking, a misdemeanor conviction does not trigger a gun restriction. However, under California Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.
- Penal Code 240 and 241 PC – assault.
- Penal Code 244.5 — assault with a stun gun or less-lethal weapon (as defined in Penal Code 16780).
- Penal Code 245 — assault with a deadly weapon or firearm.
- Penal Code 245.5 — assault with a deadly weapon or firearm against a school employee.
- Penal Code 242 PC — battery.
- Penal Code 243 – spousal battery.
- Penal Code 243.4 PC — sexual battery.
- Penal Code 273.5 PC – infliction of corporal injury on a spouse / mate.
- Penal Code 646.9 PC — stalking.
- Penal Code 273.6 — violation of a protective order.
- Penal Code 148(d) — taking a firearm from a peace officer.
- Penal Code 830.95 — wearing a peace officer uniform while engaged in picketing.
- Penal Code 422 PC — criminal threats.
- Penal Code 71 and Penal Code 76 – threats to public officials and/or their families.
- Penal Code 136.1 — intimidation of witnesses and victims.
- Penal Code 136.5 — possession of a deadly weapon with intent to use it to intimidate witnesses.
- Penal Code 140 — threats of force against witnesses, victims or informants.
- Penal Code 417 — brandishing a deadly weapon.
- Penal Code 417.6 — brandishing a deadly weapon with the intent to inflict serious bodily injury.
- Penal Code 246.3 — negligent discharge of a firearm or BB gun.
- Penal Code 247(a) — willful discharge of a firearm at an unoccupied aircraft.
- Penal Code 247(b) — discharge of a firearm at an unoccupied motor vehicle, building or dwelling house.
- Penal Code 26100(b) and (d) — discharging or permitting another to discharge a firearm from a motor vehicle.
- Penal Code 171b — possession of weapons in public buildings or meetings.
- Penal Code 171c(a)(1) — possession of a loaded firearm within the state capitol or legislative offices.
- Penal Code 171d — possession of a loaded firearm within the governor’s mansion or the residence of state officials.
- Penal Code 626.9 — possession of a firearm in a school zone.
- Penal Code 17500 — possession of a deadly weapon with the intent to commit assault.
- Penal Code 17510 — possession of a deadly weapon or firearm while picketing.
- Penal Code 25300 — criminal possession of a firearm (possession of a firearm in a public place while masked).
- Penal Code 25800 — armed criminal action (possession of a firearm with the intent to commit a felony).
- Penal Code 30315 — possession of metal-piercing or armor-piercing ammunition.
- Penal Code 32625 — possession of a machine gun.
- Welfare and Institutions Code 8100 — possession of a firearm or deadly weapon by certain persons with mental disorders.
- Welfare and Institutions Code 8103 — possession of a firearm or deadly weapon by mentally disordered sex offenders or persons adjudged to be a danger to others.
- Penal Code 186.28 — sale or transfer of a firearm to a gang member for use in a felony.
- Former Penal Code 12100(a) — sale of concealable firearms to juveniles.
- Penal Code 27510 — sale or transfer of a firearm to a person under 18.
- Welfare and Institutions Code 8101 — sale or transfer of a firearm or deadly weapon to certain persons with mental disorders.
- Welfare and Institutions Code 871.5 and 1001.5 — bringing or sending a firearm into a juvenile hall or camp or a Youth Authority institution.
- Penal Code 27590(c) — illegal sale or transfer of a firearm.
You may petition the court to have gun rights restored before the 10-year period is up if:
- you were convicted of one of the above misdemeanors prior to its being added to Penal Code 29805 PC, and
- you do not have a previous conviction under Section 29805, no matter when the prior conviction occurred.
You may petition for this relief on a one-time basis only. The court may grant it if it finds that you are likely to use a firearm in a “safe and lawful manner.”
People who are addicted to a narcotic drug are prohibited from possessing firearms.
Federal law imposes a ban on this category of persons as well (see below).
If you are “addicted” to a narcotic drug, it means that you are both emotionally and physically dependent on the drug and have an increased tolerance to its effects.
People with a mental illness are banned from possessing firearms as follows:
- during any period in which they are receiving voluntary in-patient treatment for being a danger to themselves or others;
- while under a conservatorship because gravely disabled as a result of a mental disorder or impairment by chronic alcoholism;
- for 6 months following a serious threat of physical violence against a reasonably identifiable victim or victims;
- for a period of five years following release from an involuntary commitment to a mental hospital for being a danger to oneself or others;
- for life after two involuntary commitments in a year; or
- for an indefinite period of time if they fall into one of the categories set forth below.
People banned for an indefinite period may not have a gun until they receive a certificate stating that they are no longer a threat to society. After receiving their certificate, such people may petition to have their gun rights restored.
The people subject to this requirement are:
- those adjudicated by a court of any state to be a danger to others because of a mental disorder or mental illness,
- those adjudicated by a court of any state to be a mentally disordered sex offender;
- people declared incompetent to stand trial; and
- those who have pleaded not guilty to a non-violent crime by reason of insanity.
People who have pleaded not guilty to certain violent crimes by reason of insanity are subject to a lifetime ban on firearm possession.
Such crimes include (but are not limited to):
- residential burglary,
- arson of an inhabited dwelling, and
- other felonies involving death or great bodily injury.
Note that federal law imposes its own restrictions on this class of individuals as well.
Thus certain people subject only to a five-year restriction in California may face a lifetime ban under federal law.
Please see Section 2, below, for a more complete discussion of federal law. Also, see California Assembly Bill 1968 (2018).
Minors are prohibited from owning, possessing, purchasing, or receiving guns. Unless subject to another firearm restriction, people may first possess guns as follows:
- rifles and shotguns: once they reach the age of 18, and
- handguns: once they reach the age of 21.
Minors who have been convicted of certain offenses and are adjudged a ward of the juvenile court as a result of their conviction may not possess a firearm until the age of 30.
Such offenses include (but are not limited to):
- designated California drug offenses,
- specific crimes of violence, and
- certain firearms offenses (including California Penal Code 25400 PC — carrying a concealed weapon and California Penal Code 25850 PC — carrying a loaded firearm.)
California courts have the right to impose additional firearms restrictions under two scenarios.
While you are subject to such restrictions, you are prohibited from owning, possessing, purchasing, or receiving a firearm.
It is possible to check your firearms eligibility status with the California Department of Justice.
You do not need to disclose your possession of any firearm in order to do so.
The cost for such an eligibility check is $20. The Personal Firearms Eligibility Check Application form is available on the DOJ’s website.
Federal law imposes its own set of firearms restrictions on certain classes of people.
You are prohibited under federal law from possessing a gun if:
you are under indictment for, or have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
- you are a fugitive from justice;
- you are an unlawful user of or addicted to any controlled substance;
- you have been adjudicated as a mental defective or have been committed to any mental institution;
- you are unlawfully in the United States;
- you have been discharged from the Armed Forces under dishonorable conditions;
- you have renounced your U.S. citizenship;
- you are subject to a protective order for stalking or representing a threat to an intimate partner or child; or
- you have been convicted in any court of a misdemeanor crime of domestic violence.
Many of these federal firearms restrictions are identical to those imposed by California law. However, when federal and California gun laws conflict, the federal laws prevail. In such a case, California gun laws may as well not even exist.
One area in which differences arise is after a conviction for a misdemeanor crime of domestic violence (“MCDV”).
State law restores California gun rights to an individual convicted of MCDV once a 10-year restriction expires. However, federal law imposes a lifetime firearms ban after such a conviction.
At present, the only way to remove a federal firearms ban is by Presidential pardon. However, presidential pardons are rarely granted.
As a practical matter, therefore, if you are convicted of MCDV in any court, you will never be able to possess a gun legally in California. The only way to avoid the federal lifetime ban is to avoid a domestic violence conviction in the first place.
For a more complete discussion, visit our page on domestic violence convictions & California gun rights.
California and federal law also conflict in their treatment of mental illness.
California law imposes a five-year firearms ban following involuntary commitment for being a danger to oneself or others.
But federal law provides a lifetime ban on gun ownership by anyone adjudicated a mental defective or committed to a mental institution. As a result, once you have been admitted to a mental institution, it is not possible for you to possess a gun legally in California or anywhere else.
If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights. California law defines “dangerous weapon” as any weapon, instrument, or object capable of being used to inflict great bodily injury or death.
And, as noted, federal law prevents California from restoring your gun rights under certain circumstances, including (without limitation):
- you have been convicted of a crime of domestic violence,
- you have been adjudicated a mental defective or confined to an institution, or you are an abuser or unlawful user of a controlled substance.
Otherwise, depending on the type of conviction, there are two ways to restore your California gun rights:
- by reducing a felony “wobbler” conviction to a misdemeanor, or
- by obtaining a California gubernatorial pardon.
A “wobbler” offense is a crime that can be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.
If you were convicted of a qualifying felony wobbler, you can regain your gun rights by reducing your California felony to a misdemeanor.
For the most part, qualifying wobblers are those for which you were sentenced to county jail and/or probation.
The following are not qualifying offenses:
- “straight” felonies… that is, crimes that may only be charged as a felony;
- felonies involving the use of a dangerous weapon;
- felonies for which you were sentenced to California prison;
- misdemeanors that subject you to a 10-year gun restriction;
- domestic violence convictions; and
- drug offenses that classify you as a “narcotics addict.”
Eligible felony wobbler charges can be reduced at any time. Thus you can file a petition if:
- you were convicted of a wobbler felony and are still on probation (although you will first need to file a petition to have your probation terminated);
- you were convicted of a felony and are done with probation and/or county jail time; or
- you were convicted of a felony and were never given any probation at all but were sentenced to county jail.
If the court reduces your felony to a misdemeanor, your right to possess a firearm will generally be restored. However, if the misdemeanor is one that subjects you to a ten-year gun restriction, you will need to wait out the ten years before you may possess a gun.
The second way to restore your California gun rights is by a pardon from California’s governor.
Not all pardons restore gun rights. The pardon must specifically be “full and unconditional,” or provide you are entitled to exercise the right to possess a gun.
A pardon is not the same as an expungement. A pardon will not seal or erase your criminal record or the record of your conviction. It can, however, restore to you certain rights, including (without limitation) the right to possess a gun.
If you were convicted of a California felony that is ineligible for reduction to a misdemeanor, you may be able to receive a gubernatorial pardon. People convicted of misdemeanor sex crimes are also eligible.
The main requirement for a gubernatorial pardon is exemplary behavior for a long period of time. Generally, an application for a pardon will not be considered unless you have been discharged from probation or parole for at least 10 years without further criminal activity during that period.
Only California crimes may be pardoned by California’s governor.
If you were convicted in another state, you must apply for a pardon in that state. If convicted of a felony under federal law, you must apply for a Presidential pardon.
A Certificate of Rehabilitation (“COR”) is a court order that declares you rehabilitated of your crime. If you meet the following criteria, you must apply for a COR before seeking a pardon:
- you were convicted of a California felony, and
- you currently reside in California.
A Certificate of Rehabilitation does not, by itself, restore California gun rights. You must still receive a gubernatorial pardon. If you are granted a COR, it automatically becomes an application for a California governor’s pardon. You do not need to do anything more.
Application for a Certificate of Rehabilitation is made to the superior court in the county where you live. To apply, you must have resided in California for at least five (5) years after the earliest of:
- discharge from custody due to completion of your sentence, or
- your release on parole or probation…
an additional period of two (2) to five (5) years, depending on the underlying offense.
You are not eligible for a California Certificate of Rehabilitation if:
- you are serving mandatory life parole,
- you were committed under a death sentence, or
- you committed certain sex acts with a child.
If you are ineligible for a Certificate of Rehabilitation, you may apply for a direct pardon.
This procedure is used primarily by people who:
- were convicted of a crime in California and now reside outside the state, or
- people who have been convicted of specified misdemeanor sex offenses.
An application for a direct pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years. You must also not have had any further criminal activity during that period.
Upon demonstration of truly exceptional circumstances… such as actual innocence… the 10-year rule may be waived.
Applications for a direct pardon are available at the California Governor’s website. You may also request an application by writing to:
Attention: Legal Affairs
Sacramento, CA 95814
After you have completed the application, you must send the Notice of Intent to Apply for Executive Clemency to the district attorney of each county in which you were convicted. This is a legally-required notice.
The District Attorney will return the notice to the Governor’s Office and send you an acknowledgment. Once you receive it, you can return the completed application to the Governor’s Office at the address listed above.
The governor has complete discretion in deciding whether to grant a pardon. This is true for both direct pardons and pardons after issuance of a Certificate of Rehabilitation.
An exception is if you have two (2) or more felony convictions. In such a case, the Governor of California may not grant you a pardon… unless… a majority of justices of the California Supreme Court recommend one. The Governor has no obligation, however, to seek such a recommendation from the court.
As noted, not all pardons restore gun rights. The pardon must specifically provide you are entitled to exercise the right to possess a gun.
Expungement of a criminal record in California does not remove the ban on owning or possessing firearms.
Expungement refers to the process of:
- withdrawing a plea of guilty or no contest, and
- having the case dismissed, after successful completion of probation … or, if applicable… jail and parole.
The main benefit of expungement is that you do not have to disclose an expunged conviction on most job applications. But, as noted, expungement does not restore gun rights. If you wish to possess a gun following expungement of a criminal record, you must still follow the steps set forth above.
In addition, not all offenses can be expunged. If you were sent to California state prison, or you are guilty of a serious sex offense, you do not qualify for expungement. source
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Penal Code 25605 (b) — No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Penal Code Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
- But see California Penal Code 29800(c) — Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
- California Penal Code 29800 PC(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 Penal Code 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
- California Penal Code 29800(b) — Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
- California Penal Code 29805 PC. Except as provided in Section 29855 or subdivision (a) ofSection 29800, any person who has been convicted of a misdemeanorviolation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) ofSection 148, Section 171b, paragraph (1) of subdivision (a) ofSection 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245,245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or830.95, subdivision (a) of former Section 12100, as that section readat any time from when it was enacted by Section 3 of Chapter 1386 ofthe Statutes of 1988 to when it was repealed by Section 18 ofChapter 23 of the Statutes of 1994, Section 17500, 17510, 25300,25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, orSection 27510, or Section 8100, 8101, or 8103 of the Welfare andInstitutions Code, any firearm-related offense pursuant to Sections871.5 and 1001.5 of the Welfare and Institutions Code, or of theconduct punished in subdivision (c) of Section 27590, and who, within10 years of the conviction, owns, purchases, receives, or has inpossession or under custody or control, any firearm is guilty of apublic offense, which shall be punishable by imprisonment in a countyjail not exceeding one year or in the state prison, by a fine notexceeding one thousand dollars ($1,000), or by both that imprisonmentand fine. The court, on forms prescribed by the Department ofJustice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
- See same.
- California Penal Code 29860 PC.
- California Penal Code 29800(a)(1), endnote 4, above.
- 18 United States Code 922(d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
- People v. O’Neil (1965) 62 Cal.2d 748, 750. (“…we must reverse the judgment and remand the cause for a determination of whether the defendant is ‘addicted’ to the use of narcotics as we have defined that term in People v. Victor (1965) 62 A.C. 290, 312-315, 42 Cal.Rptr. 199, 398 P.2d 391; i. e., whether he exhibits the three characteristics of the addiction process: (1) ‘emotional dependence’ on the drug, (2) an increased ‘tolerance’ to its effects, and (3) ‘physical dependence’ manifested by withdrawal symptoms upon sudden termination of drug intake.”)
- California Welfare and Institutions Code 8100(a).
- California Welfare and Institutions Code 8103(e)(1).
- California Welfare and Institutions Code 8100(b)(1).
- California Welfare and Institutions Code 8103(f)(1).
See also California Welfare and Institutions Code 5150 regarding involuntary commitment.
- California Welfare and Institutions Code 8103(a)(1).
- California Welfare and Institutions Code 8103(d)(1).
- California Welfare and Institutions Code 8103(c)(1).
- California Welfare and Institutions Code 8103(b)(1).
- The full list of crimes under California Welfare and Institutions Code 8103(b)(1) is: murder, mayhem, kidnapping (if the victim suffers intentionally inflicted great bodily injury), carjacking or robbery (if the victim suffers great bodily injury), arson of an inhabited dwelling or trailer coach, rape, first degree (residential) burglary, assault with intent to commit murder, assault with intent to commit mayhem or sex crimes (if the victim suffers great bodily injury), reckless or willful possession or explosion of an explosive device, and any felony involving death or great bodily injury, or an act which poses a serious threat of bodily harm to another person.
- 18 United States Code 922 (d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(4) has been adjudicated as a mental defective or has been committed to any mental institution.
- Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270.17; or certified under Welfare and Institutions Code sections 5250, 5260, or 5270.17, may be subject to a lifetime prohibition pursuant to federal law. See California Department of Justice, Bureau of Firearms, Firearms Prohibiting Categories.
- California Attorney General’s Firearms Website, Frequently Asked Questions — Sales and Transfers of Firearms. “Although there are exceptions, generally all firearms purchasers must be at least 18 years of age to purchase a long gun (rifle or shotgun) and 21 years of age to purchase a handgun (pistol or revolver).”
- California Penal Code 29820 PC.
- California Penal Code 29815 PC.
- California Penal Code 29825 PC. See also California Penal Code 1203.1 (j) — The court may impose…other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer…See also People v. Lent (1975) 15 Cal.3d 481, 486. (“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality…’” [citation omitted.])
- California Penal Code 30105 PC.
- See same.
- Note that the federal gun ban applies to anyone who has been convicted of a crime that carries more than a year in prison whether or not that person actually served more than a year in prison. See California Penal Code 29800(c)(2).
- 18 United States Code 922(d).
- See Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms – Frequently Asked Questions; Office of Legislative Research, Research Report 2008-R-0617, Restoration of Right to Carry Firearms Under Federal Law, November 10, 2008.
- See endnote 17, above.
- 18 USC 922(d).
- California Penal Code 4854 PC. In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing withSection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.
- See e.g., Judicial Council of California criminal Jury Instructions (2012) CALCRIM 511 and 3145:
[A dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
- 18 USC 922(d).
- See People v. Gilbreth (2007) 156 Cal.App.4th 53. (” ‘[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor ‘for all purposes.’ This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring.’ (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant’s possession of a firearm by a convicted felon must be reversed.”).
- See State of California, Office of the Governor, How to Apply for a Pardon.
- California Penal Code 1203.3.
- California Penal Code 1203.4.
- California Penal Code 1203.4a.
- California Penal Code 4854, endnote 37, above.
- See How to Apply for a Pardon, endnote 41, above.
- The Supremacy Clause of the United States constitution, Article VI, provides:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
- See the United States Department of Justice, Office of the Pardon Attorney, Pardon Information and Instructions.
- See California Penal Code 4852.01-4852.21.
See also, How to Apply for a Pardon, endnote 41, above.
- People discharged or released on parole prior to May 13, 1943 and not incarcerated in a state penal institution since, have a three (3) year residency requirement. See California Penal Code 4852.01 PC (a).
- California Penal Code 4852.03.
(a) The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner. For purposes of this chapter, the period of rehabilitation shall constitute five years’ residence in this state, plus a period of time determined by the following rules:
(1) To the five years there shall be added four years in the case of any person convicted of violating Section 187, 209, 219, 4500, or18755 of this code, or subdivision (a) of Section 1672 of the military and Veterans Code, or of committing any other offense which carries a life sentence.
(2) To the five years there shall be added five years in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to section 290, except for convictions for violations of subdivision(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or314. For those convictions, two years shall be added to the five years imposed by this section.
(3) To the five years there shall be added two years in the case of any person convicted of committing any offense that is not listed in paragraph (1) or paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the certificate of rehabilitation may, if the defendant was ordered to serve consecutive sentences, order that his or her statutory period of rehabilitation be extended for an additional period of time which when combined with the time already served will not exceed the period prescribed by statute for the sum of the maximum penalties for all the crimes.
(5) Any person who was discharged after completion of his or her term or was released on parole before May 13, 1943, is not subject to the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation, as stipulated in this section, has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court. Any certificate of rehabilitation that is issued and under which the petitioner has not fulfilled the requirements of this chapter shall be void.
(c) A change of residence within this state does not interrupt the period of rehabilitation prescribed by this section.
- California Penal Code 4852.01(d) — This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section288, subdivision (c) of Section 287, Section 288.5, or subdivision(j) of Section 289, or persons in the military service.
- California Penal Code 4852.01(e) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
See also How to Apply for a Pardon, endnote 41, above.
- See California Penal Code 4852.01(d), endnote 52, above.
See also California Penal Code 290, the “Sex Offender Registration Act,” which sets forth the sex crimes subject to PC 4852.01(d).
See also California Penal Code 4852.01(e).
- See, How to Apply for a Pardon, endnote 41, above.
- See same.
- Penal Code 4852.16 — The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution,the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.
- People v. Ansell (2001) 25 Cal.4th 868, 891. (“However, regardless of which statutory application procedure is used, and notwithstanding any recommendation by the superior court, the pardon decision is discretionary, and rests ultimately with the Governor.”)
See also California Penal Code 4800 PC — Constitutional authority. (“The general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California.”)
See also California Constitution, Article V, Section 8(a) — Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, [California Governor’s] pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on the recommendation of the Supreme Court, 4 judges concurring.
See also California Penal Code 4802 PC — In the case of a person twice convicted of felony, the application for pardon or commutation of sentence shall be made directly to the Governor, who shall transmit all papers and documents relied upon in support of and in opposition to the application to the Board of Prison Terms.
See also California Penal Code 4813 PC — In the case of applications of persons twice convicted of a felony, the Board of Prison Terms, after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.
See also How to Apply for a Pardon, endnote 41, above.
- California Penal Code 4854 PC, endnote 37, above.
- California Penal Code 1203.4(a)(2) [felony convictions] and 1203.4a(c)(2) [misdemeanor convictions] both provide that: “Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of title 4 of Part 6 [California’s felon with a firearm law].”)
- California Penal Code 1203.4(a).
For more information, please see our article on the Consequences of a Felony Conviction.
- California Penal Code 1203.4(b) — subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Vehicle Code 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
- Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s firearm laws and restoring your Nevada gun rights. Their Nevada law offices are located in Reno and Las Vegas.
RESTORE YOUR CALIFORNIA GUN RIGHTS
Being convicted of a crime under California State law can impact your Second Amendment right to keep and bear arms under both California and federal law. In general, a conviction for any felony offense will result in a lifetime ban on your ability to possess or own a gun.
Certain misdemeanors, such as those involving domestic violence or even drug offenses, may also result in temporary or lifetime bans depending on the conduct which gave rise to the conviction. In addition, you can’t legally own or possess a gun if you are addicted to drugs, under 18 years old, suffering from mentally illness, prohibited by court order as a condition of probation.
The California and federal laws concerning gun restrictions is complex, and require fact-specific analysis on a case-by-case basis to determine if any apply. Below you will find an overview of some of the options to restore your gun rights after they have been restricted due to California criminal conviction.
In general, there are two basic options to have your gun rights restored after a conviction. They include having your felony case reduced to a misdemeanor and receiving a pardon from the Governor of California.
It should be noted that while a reduction of your offense to a misdemeanor may provide relief under California state law, federal law does not recognize the effects of either post-conviction reductions of the level of offense or expungements pursuant to Penal Code Section 1203.4.
As almost all gun purchases occur through federally-licensed firearms dealers, the practical reality is that a federal ban on ownership will prohibit any ownership, even if gun rights are restored under California state law. Based on our experience, only a pardon from the governor of California is effective at restoring your pardon under federal law as a pardon renders the conviction a legal nullity.
It should also be noted our law firm does not handle this type of work, but this is the law in the area of restoring gun rights. We refer people to the Los Angeles County Bar Association and the San Fernando Valley Bar for further information and any work on the matter.
CALIFORNIA STATE LAW
Under California law, a Penal Code 17(b) reduction of a felony charge to a misdemeanor is usually the quickest and easiest to obtain option for restoring your gun rights under California law. Note that, as discussed below, these reductions will likely not impact the federal gun restrictions which may apply to your case.
Penal Code 17(b) reductions result in the prior felony conviction being treated as a misdemeanor for all purposes, including the prohibition against felons possessing firearms. Once a court has reduced a wobbler to a misdemeanor pursuant to section 17, the crime is thereafter regarded as a misdemeanor for all purposes.
This unambiguous language means what it says, and unless the Legislature states otherwise, a defendant stands convicted of a misdemeanor, not a felony case.
Federal law often overlaps with California law with respect to those individuals whose gun rights are restricted or removed completely due to prior convictions. The most common restriction which gives rise to federal prosecutions is felon in possession.
Federal law prohibits the possession or ownership of a firearm by felons, which it defines as anyone convicted in any court of an offense punishable by more than one year. Notice the two possibly counterintuitive points about this rule:
- Your conviction may have come from any court. You do not need to be convicted of a federal felony to lose your gun rights under federal law; and
- The crime need only be punishable by more than a year.
If you were granted probation or sentenced to only a few days in jail, but the statute under which you were convicted can possibly result in 366 days or more of confinement, you may lose your gun rights for life under federal law.
There is an exception to this rule for State crimes classified as misdemeanors which are punishable by less than two years in jail. Contact a Los Angeles criminal defense attorney from our office for more information.
Unfortunately, federal courts have held that Section 17(b) reductions, as discussed above, do not restore federal gun rights. In general, the courts will look to the original charge of conviction and, if it is even possible to be sentenced to greater than one year, the gun ban will apply.
This affects many California defendants who have been convicted of “wobblers.” In California, a wobbler is a crime which may be charged as either a misdemeanor or a felony. Section 17(b) is often used after the fact to reduce a felony conviction to the misdemeanor version of the same crime. While these reductions still provide substantial benefits to the defendant under California law, restoration of federal gun rights is not one of them.
The federal firearm restriction does contain an exception for convictions which have been expunged, but specifies that the exception does not apply if the State law expungement procedure does not restore gun rights.
Once again, California residents are unlucky as Penal Code 1203.4, the expungement provision, explicitly states that it does not restore gun rights to those whose cases are dismissed pursuant to its provisions. Therefore, the federal exception for expunged convictions does not apply.
PARDON FROM CALIFORNIA GOVERNOR
There is only one relatively certain way to restore your federal gun rights: obtain a pardon. Pardons can be obtained from either the Governor of California or the President of the United States. In both cases, discretion over whether to grant a pardon rests entirely with the chief executive.
Who is eligible for a California gubernatorial pardon? Defendants who have been convicted of a California felony that are ineligible for reduction to a misdemeanor may be able to receive a gubernatorial pardon. Individuals convicted of misdemeanor sex crimes are also eligible.
Typically, the main requirement for a California gubernatorial pardon is exemplary behavior over a long period of time. An application for a pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years without any criminal activity during that time frame. If convicted of a felony under federal law, you must apply for a Presidential pardon. source
How Do I Restore My Firearm Rights Under Federal Law?
A felony conviction or a domestic violence conviction results in a state and federal firearm ban. To buy a gun, you have to pass a state and federal background check.
Therefore, to fully restore your gun rights, you have to restore your firearm rights under both state and federal law.
Do I lose my federal gun rights if I was convicted of a felony in Washington state court?
Under the federal Gun Control Act of 1968, you cannot possess a firearm under federal law if you have been convicted of a crime “in any court” that carries a maximum punishment in any court that carries a maximum possible punishment of more than one (1) year in prison (18 U.S.C. 922(g)(1)).
In practice, this means that anyone convicted of a felony in state or federal court cannot own a possess a firearm under federal law.
Can I restore my federal gun rights in federal court?
You can restore your state gun rights in state court, so you might naturally assume that you can restore your federal gun rights in federal court. But the answer is no. Why?
Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights. And if your application is denied, then you can seek judicial review in federal court.
But since 1992, Congress barred ATF from spending money to review and investigate a felon’s application to restore gun rights. Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.” In other words, no denial equals no right to go to federal court.
How do I restore my federal gun rights if I have a federal conviction?
Because you can’t go to federal court (see above), a presidential pardon is essentially the only way to restore your federal firearm rights if you’ve been convicted of a federal felony.
In practice, therefore, you have very little chance of ever fully restoring your gun rights with a federal felony.
Can I restore my federal gun rights in Washington state court?
Under 18 U.S.C. 921(a)(20), a felony conviction does not prevent you from possessing a firearm if your civil rights have been restored or your conviction has ben vacated. To restore your civil rights, however, you don’t go to federal court. You go to state court.
A felony conviction three important rights: (1) the right to vote; (2) the right to serve on a jury; and (3) the right to hold public office.
In Washington, felons regain their civil rights after completing their sentence. This typically requires serving all jail time and paying all court costs. Once this happens, the court issues a Certificate of Discharge.
Example: You are convicted of felony drug trafficking in King County Superior Court. You complete your sentence, and the Court issues you a Certificate of Discharge. You cannot be federally prosecuted for possessing a firearm.
Keep in mind, however, that under Washington state law, a Certificate of Discharge does not restore your right to possess firearms. You have to file a separate motion to restore your state gun rights in superior court.
If I restore my gun rights in Washington, are my federal gun rights automatically restored?
In Washington, you can restore your gun rights without having to fully restore your other civil rights. In that case, you would be eligible to possess a gun under state law but could still be prosecuted under federal law.
Example: You are convicted of a felony in Vancouver. In 2019, you restore your state gun rights in Clark County Superior Court, although you still owe fines for the felony. Because you still owe money, you have not completed your felony sentence, which means you are not entitled to a Certificate of Discharge, which means you have not restored your civil rights in Washington, which means that you can still be prosecuted under federal law.
Additionally, if you have felony convictions in multiple states, you may have to restore your gun rights in different states to restore your federal gun rights.
Can I restore my firearm rights if I’ve been committed to a mental health facility?
Under 18 U.S.C. 922(g)(4), you cannot own or possess a firearm if you have been “adjudicated as a mental defective” or has “been committed to a mental institution.”
Under Washington State law (RCW 9.41.047), you also lose your firearm rights
You can, however, restore your firearm rights under Washington State law (RCW 9.41.047) for the exact same reason.
So what does mean in practice? It means you can possess a firearm under state law (i.e. you cannot be prosecuted under state law for possessing a firearm). But because you are not eligible under federal law, you will not be able to pass a federal background check or be eligible for concealed pistol license (CPL).
The Ninth Circuit Court of Appeals made this clear in a recent case in March 2020.
In Mai v. United States, the Court compared the two applicable statutes–RCW 9.41.047 and 18 U.S.C. 1922(g)(4)–and ruled that the federal law is more strict than the state law.
For example: Washington law requires a a judge to find that a person “no longer presents a substantial danger” to others whereas federal law requires a judge to determination that a person “will not be likely to act in a manner dangerous to public safety.”
In other words, you could be a danger and be ineligible to possess firearms under federal law but not be a substantial danger and therefore be eligible to possess firearms under Washington law.
But that’s not all. There’s no way for a Washington resident to overcome the federal legal barrier under 1922(g)(4). Here’s why.
In some states, you can petition the local government to sign an order stating that you have overcome the federal legal barrier. But the federal government won’t recognize the state order unless the state order complies with federal law, and as the Ninth Circuit ruled, Washington’s state program doesn’t.
Is a courts martial conviction considered a federal conviction?
In the military, courts-martial are trials that try members of the U.S. military for crimes under the Uniform Code of Military Justice (UCMJ). The UCMJ is federal law, enacted by Congress, and lists all criminal offenses under military law. Think of the UCMJ as the equivalent of all the RCWs in Washington State.
For this reason, a courts-martial conviction is effectively a federal conviction, not a state conviction. A conviction at a general court-martial, for example, is equivalent to a felony conviction in a U.S. federal district court. source