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IN 1965 I WAS CONVICTED OF A FELONY CHECK CHARGE, WROTE CHECKS

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IN 1965 I WAS CONVICTED OF A FELONY CHECK CHARGE, WROTE CHECKS OVER $50, LATER YEARS IN TRYING TO CORRECT MY RECORD, BEING ABLE TO VOTE, ETC. I HIRED A LOCAL LAWYER, ALL CHARGES WERE REDUCED TO MISDEAMEANORS, I THOUGHT THAT WOULD MAKE THINGS MORE BETTER, IN THAT I COULD GO HUNTING WITH A FIREARM AND BE LEGAL. IN DISCUSSIONS WITH THE FBI, I FILED FOR A REVIEW AND RELIEF, THE DISCUSSIONS LEAD TO CALIFORNIA PENAL CODE 1203.4, IT BASICALLY SAYS EVEN IF THE CONVICTIONS WERE REDUCED TO A MISDEAMEANOR, CERTAIN THINGS YOU CANNOT DO, AND THAT IS OWN OR BE AROUND FIREARMS. I NEED HELP
Submitted: 5 years ago.
Category: Criminal Law
Expert:  LawHelpNow replied 5 years ago.

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney, and I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information. I am sorry for what you have been through here, and I hope that everything gets resolved appropriately for you in this matter.
  2. I have encountered this very situation on more than one occasion. The most common type of expungement relief available in California is authorized by California Penal Code § 1203.4. The good news is that the relief is relatively easy to obtain, but the flip side is that it is rather partial remedy. Here is what I mean by that statement.
  3. Technically, the expungement § 1203.4 is not an eraser of one's criminal record. What is really happening is set out in the statute: the plea of guilty or no contest is being withdrawn and a plea of not guilty is being entered, or, if there was a trial, the verdict of guilty is being set aside. In either case, the court is thereafter dismissing the charging document. As noted in the statute, the probationer is, thereafter, "released from all penalties and disabilities resulting from the offense of which he or she has been convicted," with certain exceptions.
  4. There is a split of opinion among those in the legal community about exactly what this means for those applying for a job and confronted with the question "have you ever been convicted of a crime?" Since the statute says "released from all penalties and disabilities," subject only to those exceptions specifically set forth in the statute, this author believes that the better reasoned view is that the legislature meant what it said, that "all penalties and disabilities" means just that, and if the legislature intended to say otherwise, they would have said so. Therefore, once an order for relief pursuant to § 1203.4 has been granted, the former-probationer can lawfully state that they have not been convicted of the crime when asked on a job application from a private (non-law enforcement) employer.

  5. Those exceptions, where disclosure is required, are set out in the statute: "the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery." This means that if applying for public office, seeking any license from the state (real estate, stock broker, doctor, lawyer, etc.), or contracting with the California State Lottery, the conviction must be disclosed (although it can be disclosed as an expunged conviction).

  6. Now, boiling all of this down brings us to the botXXXXX XXXXXne as it pertains to your situation with firearms. Having looked at numerous appellate holdings interpreting the statutory language, I feel confident in saying that the Courts have consistently upheld the intent of the Legislature in enacting the provision. Specifically, what comes up to present an impediment is, as you know first-hand, this sentence: "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
    Section 12021."

  7. As to your case, I have carefully read and considered everything you have posted here. It seems you have certainly been diligent and have done just about everything within your power as far as seeking expungement and obtaining relief afforded by § 1203.4. Personally, I believe that the latter should suffice, as the plain language of the statute states it is actually a dismissal of the original charge. Unfortunately, however, the statute also plainly states it does not permit firearms pursuant to § 12021. Realistically, I see zero chance of a different judicial interpretation at this point.
  8. What all of this boils down to is the only viable option I see for you at this point is to seek a full pardon that includes specific language restoring firearms rights. § 4854 provides the Governor with this ability. The pardon statute does make limitations pursuant to §§ 12001 and 12021, but in your case I think an argument can be made for an exception since your were never convicted of a felony involving the use of a dangerous weapon. I am sorry to be the bearer of some discouraging news, but my primary aim has been to be upfront with you about the current state of the law.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

 

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

 

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

LawHelpNow, Attorney/Lawyer
Category: Criminal Law
Satisfied Customers: 7593
Experience: Relax. Let's work together. Practical solutions.
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