CA legal then not legal to have a Firearm.

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Scorpiusdeus

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I have a friend who was a very law abiding citizen and legally purchased a firearm. Recently he was convicted of a non violent felony. He plead guilt and after probation and restitution his record was expunged.

Since then the police went o his home where he was not living at the time and confiscated the gun. He's now been charged for being a convicted felon in possession of firearm. Not only was he not in possession, he wasn't living with his wife when they came by asking for the gun. He was living in another state.

So my question is this, if you are no longer legally able to own a firearm what do you do with your firearms?
 
i wouldn't have plead guilty first of all... and even before that i wouldn't have gotten arrested for a felony... that said... if he wasn't in residence at the address, he might still be considered a resident there, that all depends on local residency laws
 
The only thing that your friend should be doing is consulting a knowledgable attorney. No one here and probably even you don't know all the details of the case as well as the terms of his plea.
 
California has handgun registration and a clear codified procedure for disposing of firearms that are registered to you if you are accused (yes, before you are convicted) of a felony. The rules are listed in the state-published booklet on handgun laws (which you basically need to read to legally buy a handgun in CA today). As I recall you are allowed to sell them out of state (through an FFL), sell them to an FFL dealer, transfer them (through an FFL) to someone who is legally able to possess them, or (and this may have been removed or something) possibly give them to the local police department.
 
Even though his record was expunged by the state, he is still a convicted felon in the eyes of the ATF, and that's a tough thing to change. He should have been informed of this at some point during or after his trial or probation, and if he wasn't he should have asked. Cops don't like felons with guns.

I believe that all private sales in California need to go through a dealer, you can't just "give" someone a gun without doing the paperwork. Since he never gave or sold the gun to anyone else, and the record of that transfer would be kept by whatever dealer he used, the gun is still his. He may not be physically in possession, but it's still his gun, which he can't own because he's a felon. If it wasn't "his" gun at the time, then it would likely be considered stolen, in which case he could possibly be arrested for failing to report a stolen firearm, and his wife could possibly be arrested for possession of a stolen firearm. I'm not an expert by any means, but this is my understanding of the law.

In many states, you don't need to transfer a gun though a dealer for in-state private sales or "gifts." I'm in South Dakota, and if I suddenly couldn't own guns, I could give them to my dad, brother, or another relative, or possibly sell them to a friend or someone, or maybe place them on consignment or auction. As it stands right now, if I were ever convicted of a felony, all my guns would immediately be on their way to their new home at my father's house. Actually, they'd probably be on their way there as soon as I was charged with a felony. Better safe than sorry.

I don't know what your options would be in California, but it's probably as difficult as they can possibly make it.

Sounds like your friend needs a good lawyer ASAP.
 
Sounds like your friend needs a good lawyer ASAP.
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True for sure:uhoh:

The situation is, if convicted of the second felony, he is one strike from the 3 strike law in CA.

As stated above ASAP ....
 
He's not in possession if he doesn't live there anymore (and if everything else you say is correct). 'Possession' may include access to property. If he doesn't have a key, the ex-wife controls the residence property, he's clearly living/occupied elsewhere, votes & pays gas bill elsewhere, then it sounds like the wife just kept some metallic community property after the split!!

Nevertheless, this will take good lawyering.

California's preeminent gun lawyers are at Trutanich-Michel (http://www.tmllp.com) and will have deep background on matters like this - unlike a regular attorney having to get up to speed. These are also the NRA's lawyers in California and they're very sharp cookies. Their main office is in Long Beach, IIRC.

Expungement is not restitution of rights. Expungement really just means you can say to (most private-sector) employers "No" when asked if you've been convicted of a crime. (Gov't job standards may or may not be tighter.)

Your friend will have to spend some $$$ though, but avoiding a 2nd felony, jail, strike #2, etc. is more than worth it.

If he survives all this unscathed, he may be able to lose the felony too.

Nonviolent felons who are convicted of a crime (and which could also be sentenced as a misdemeanor - but not 100% sure of that restriction) can do something called a "17(b)" filing for what is essentially setting aside the conviction and getting full restoration of rights. [Recommended to be done thru a lawyer, though I met a young dude once who managed to do it by himself and not screw it up.] Quite a few folks in their younger lives did something stupid (selling some pot, college prank vandalism that turns into burglary/theft etc.) and got a felony conviction but have subsequently been able to restore full rights in CA.

It's fairly common for DAs to offer a sweet deal for plea of a felony conviction - i.e., time served, small fine, etc. - as opposed to more onerous life disturbance of a serious misdmeanor (1yr jail, max fine, etc). A dude with a job and family may take the easy way out thinking only of the short term issues.


Bill Wiese
San Jose CA
 
be careful though, some states/counties define residency as not having occupied the residence in the past so many days/months...
 
California has handgun registration and a clear codified procedure for disposing of firearms that are registered to you if you are accused (yes, before you are convicted) of a felony
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Are you serious? Thats crazy.

The way I understand it, in most jurisdictions you are allowed to retain possession of firearms until formal indictment by a grand jury. At which time you are temporarily restricted from possession, pending the disposition of charges.


what's the 3 strike law?
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Upon a person's third felony conviction, they are classified as a "habitual offender", and become eligible for a legislatively mandated sentence (allowing no judicial discretion in awarding sentence), oftentimes life in prison.
 
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California has handgun registration and a clear codified procedure for disposing of firearms that are registered to you if you are accused (yes, before you are convicted) of a felony
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Are you serious? Thats crazy.

The way I understand it, in most jurisdictions you are allowed to retain possession of firearms until formal indictment by a grand jury. At which time you are temporarily restricted from possession, pending the disposition of charges.
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The charge is the formal accusation. The official quote is "Any person charged with a felony offense, pending resolution of the matter [Title 18, 922 (g)]."
 
I would say that when he plead to the felony somebody ran a DROS check on him and found out he had guns registered to him. They went to check that they had been disposed of and when they hadnt been they got the icing of charging him with possesion, even though he wasnt there.

just a guess
 
I would say that when he plead to the felony somebody ran a DROS check on him and found out he had guns registered to him. They went to check that they had been disposed of and when they hadnt been they got the icing of charging him with possesion, even though he wasnt there.

just a guess
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Then of course there is always the X who might have called to have it taken away along with pounding the nail home.

He might have been arrested on a violent crime but copped to a lesser and left the state. He should have gotten rid of the gun, not left it with his X...:uhoh:
 
The official quote is "Any person charged with a felony offense, pending resolution of the matter [Title 18, 922 (g)]."
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The official quote, huh? Have you read it yourself? Nowhere in section 992, much less subsection (g), does it say that. The only things remotely similar are in subsections (d) and (n), which states:

(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— (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year

(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

I can find no mention, with the entirety of section 922, mention of a felony "charge" as disqualifying, only indictment and/or conviction. A "charge" is not the same as an "indictment".

US Code, Title 18, Chapter 44, Section 922: http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000922----000-.html
 
My question is how the police knew he had the gun at the house? Were they going there to specfically get/them? Were they there for another reason and saw it?
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All "assault weapons" and handguns transfered through a CA FFL dealer are registered with CA DOJ.

CA DOJ has a task force that goes through lists of prohibited persons and firearms registration records.

When they find some one who is prohibited that has a firearm registered to them, they make visit to see if that person still has the firearm(s).
 
Most times with things like this it is hand down information and we are not getting it from the one who is being charged with this, at least that is the OP's position.:uhoh:

As far as the law goes. It is best handled by "lawyers".

;)
 
Recently he was convicted of a non violent felony. He plead guilt and after probation and restitution his record was expunged.
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Are you sure the conviction was expunged? Your buddy may not be telling the whole truth concerning his situation, because section 921, subsection (a) says:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

This would lead me to believe that your friend might be claiming his conviction was expunged, when in fact it was not.
 
ok... that 3 stike law.... seriously not cool.... lame.... totally lame...

sure, most of the time it probably does identify true habitual offenders - but what about the other times that some poor sap gets caught in the crossfire?.... well, like this (the OP's story) for example.
 
Seems to me that it would be pretty hard to get a conviction on something that isn't in the referrenced code.

This is 922 (g) in its entirety:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who 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));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
 
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