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Roger
Roger, Lawyer
Category: Criminal Law
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I was arrested and charged with PC 273.5 in 1997. I Plead

Resolved Question:

I was arrested and charged with PC 273.5 in 1997. I Plead guilty to the misdemeanor charge and was given probation and 1 year of anger management classes. In 1999 I was allowed to withdraw my guilty plea and enter a plea of Not Guilty and the plea was amended to PC242 and I plead no contest to this charge. In 2000 the entire case was expunged 1203.4.

My DOJ criminal history report shows that I was convicted of the misdemeanor charge of 273.5 in 1997 and then in 1999 it shows dismissed - plea withdrawn with the amended plea to PC 242. Am I now eligible to own a firearm in CA?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX X'X a Criminal Law litigation attorney. Thanks for your question.

In California, a misdemeanor conviction generally doesn't result in a gun restriction. However, there are about 40 specific misdemeanor convictions that do carry a California ten-year firearms ban. SINCE you're past the 10 year period, you should be eligible UNLESS you were convicted of a domestic violence offense.

If you were convicted under a domestic violence statute/law, FEDERAL law provides for a LIFETIME firearm ban and you can never legally own a firearm - - even if you get an expungement because federal law pre-empts state law, and federal law specifically excludes people convicted of domestic violence offenses from ever being eligible to own a gun again.

Thus, as long as you were convicted of a NON-DOMESTIC VIOLENCE misdemeanor, and 10 years have passed, and you have received an expungement, then you should be eligible for gun ownership.

Here's a good link to read on this subject: http://www.gunlaw.com/index.php?option=com_content&task=view&id=33
Customer: replied 1 year ago.

Kirk,


 


Please re-read the question. I am giving you specific Penal Codes. My question specifically states that it was conviction for Domestic Violence. I then was able to withdraw my guilty plea and change it to Not Guilty. From the research that I have done changing your plea to Not Guilty VACATES the conviction and everything goes back to square one. The District Attorney opted to amend the charge to PC 242 which is a misdemeanor assault/battery which does carry a 10 year ban in CA. My question was, since the plea was amended to not guilty and the charge dismissed and amended to PC 242, the original conviction is not longer a conviction correct?

Expert:  Roger replied 1 year ago.
Hi Brian -

Yes, I looked up the penal code sections and read each one - - and that's why I tried to make my response clear that as long as this wasn't a domestic violence conviction, you should be eligible after the 10 year waiting period. Sorry if I wasn't clear.

It is true that withdrawing your guilty plea effectively restarts the criminal case against you, so the withdrawn plea should not trigger the lifetime ban gun ownership; also, because you were ultimately convicted of the PC 242 assault and battery, then you should be eligible.
Customer: replied 1 year ago.

Hi Kirk,


Ok. That was what I was hoping for. I applied to purchase a firearm back in December and was denied based on my criminal history report from the DOJ showing that I was convicted of the 273.5 misdemeanor. They never put any information on my report showing that the charge had been dismissed and plea withdrawn. After writing them and phoning them several times and asking that the 273.5 conviction be removed they finally sent me a letter stating that the original conviction could only be removed by the law enforcement agency or the court who has jurisdiction over the case. They did however amend the report to reflect the case as dismissed - plea withdrawn and charge amended and plea to PC 242. I would hope that now when my background check is done I should be fine. If for some reason it comes back denied again what would my next step be at that point?


 


Thank you.

Expert:  Roger replied 1 year ago.
The fact that you were originally charged under PC 273.5 shouldn't have anything to do with your right to own a firearm because being charged isn't the standard - - instead, the standard is being convicted. Since your plea was withdrawn and your charge was reduced to assault and battery - - and that's what you pled guilty to - - then the 273.5 charge shouldn't have anything to do with your eligibility because at the end of the day, you were only convicted under 242.

This sounds like a bookkeeping error that never got corrected. If your record isn't corrected, the best action would be to contact the California Dept. of Justice - who maintain criminal records in California - and ask for assistance in correcting this error on your record. http://oag.ca.gov/fingerprints/security

Roger, Lawyer
Category: Criminal Law
Satisfied Customers: 26099
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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