Can You Restore Your Right to Have a Firearm under California and Federal Law?

Apr 26, 2023

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A question I’m often asked is, whether a person can possess a firearm if they have been convicted of a felony? The answer is not as straightforward as you might think, since we're faced with both California and Federal Law on the issue. My analysis, however, is strictly applicable to California cases. In California, if an offense is punishable with imprisonment in the county jail or State Prison, it is considered a "wobbler." (Penal Code §17) A wobbler, in essence, is a crime that can be either a misdemeanor if the sentence is only a misdemeanor or a felony if the defendant is sentenced to State Prison. People often ask whether they can possess a firearm if they have been convicted of a felony, which is a wobbler. I’ve often overheard what I’ve considered to be incorrect advice in this area, so it is imperative that you speak with a knowledgeable Fresno Criminal Attorney regarding restoration of firearm rights.

Two of the most recent important cases on the issue pertaining to the California law and restoration of gun rights are: U.S. v. Bridgeforth (9th Cir. 2006) 441 F.3d 864 and People v. Gilbreth (2007) 156 Cal. App. 4th 53. Bridgeforth is a case out of our 9th circuit court of appeals which, aside from the U.S. Supreme Court, is the controlling court for California on Federal law. Until the U.S. Supreme Court has spoken on an issue, the Ninth Circuit has the next to final word.

People v. Gilbreth is a decision out of the First District Court of Appeal in California. In California, the Courts of Appeal are the final arbiters of California law unless the California Supreme Court or the U.S. Supreme Court has spoken on the topic, much in the same vein as the Ninth Circuit Court and the U.S. Supreme Court.

In U.S. v. Bridgeforth, the ninth circuit stated "to determine whether a conviction for a wobbler is an offense punishable by a term of imprisonment exceeding one year under the career offender provisions of the Guidelines, the sentencing court must look to state law: Did the California court's treatment of the offense convert it into a "misdemeanor for all purposes" under California Penal Code section 17(b)? If so, then the conviction does not qualify as an offense '"punishable
by imprisonment for a term exceeding one year.'" U.S.S.G. § 4B1.2(a). (U.S. v. Bridgeforth, supra, 441 F.3d 864.)

Citing a prior ninth circuit court decision, U.S. v. Robinson, the ninth circuit in Bridgeforth stated that a state court's subsequent treatment of a wobbler is controlling for purposes of determing whether the offense was a misdemeanor or a felony. The Court stated that "when the California court sentenced Bridgeforth to 365 days in county jail, section 17(b)(1) of the California Penal Code operated to convert that offense to a misdemeanor 'for all purposes.'"

In U.S. v. Robinson (9th Cir. 1992) 967 F.2d 287, 292-293, the ninth circuit, similarly stated that when a California court suspends imposition of sentence on a felony wobbler offense, the court has not entered a judgment, so the offense stays as a felony. Until the court imposes a misdemeanor sentence under Penal Code §17(b)(1) or declares the offense to be a misdemeanor under Penal Code §17(b)(3), the offense remains a felony. This is one reason which it is important to speak with a knowledgeable criminal lawyer regarding what procedures have to be conducted to make sure that the offense is actually a misdemeanor.

In Robinson, the defendant had a suspended sentence of battery on a police officer, with nine months county jail, the defendant then violated his probation and his probation was terminated as unsuccessful. It is unclear from reading Robinson whether the defendant was sentenced to State Prison, but the court found that the critical distinction is where the court suspends imposition of sentence- that is not a determination that the offense is a misdemeanor. But where the court
imposes a misdemeanor sentence and then stays execution of the sentence then that is a misdemeanor. (U.S. v. Robinson, supra, at p. 293.) The obvious complication of the law in this area makes it essential that you speak with an experienced Fresno Expungement Attorney to determine if your right to have a firearm may be restored.

Bridgeforth also cited another ninth circuit decision for the same proposition, Ferreira v. Ashcroft (9th Cir. 2004) 382 F.3d 1045, 1051 which found that a conviction was a misdemeanor under California law, not a felony because the state court had imposed a sentence of imprisonment in the county jail.

In People v. Gilbreth, the court found that if a felony offense is reduced to a misdemeanor pursuant to Penal Code §17, it is a misdemeanor 'for all purposes.' Citing the California Supreme Court decision, People v. Banks (1959) 53 Cal.2d 370, the court noted that a Defendant remains a felon until which time as the prior offense is actually reduced to misdemeanor by a misdemeanor sentence vs. a felony sentence. So if a person has had their conviction stayed by imposition of probation, the person is not off the hook for a felony and cannot possess a firearm. "Mere stay of execution of an entered judgment manifestly does not entitle the defendant to his freedom or otherwise relieve him of the disabilities resulting from conviction and imposition of judgment of imprisonment in a state prison." (People v. Banks, supra, at p. 386)

So the answer to whether a person can have a firearm after they've been convicted of a felony, which is a wobbler under California law, is whether they received a misdemeanor sentence. This requires a careful look a the court's order by a skilled California gun rights lawyer. If the court imposed a misdemeanor sentence, then it is a misdemeanor for all purposes under both California and Federal Law. If the court stayed, but did not impose the sentence, the conviction stays a felony.

However, there is another option and that is where the court declares a wobbler offense to be a misdemeanor under state law. According to Bridgeforth, under California law, a wobbler is a misdemeanor when the California court declares the offense a misdemeanor without imposing a sentence. (Penal Code §17(b)(3); U.S. vs. Bridgeforth, supra, at p. 870.)

People v. Gilbreth is in accordance with Bridgeforth, which seems obvious since Bridgeforth is interpreting California law, " '[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. ' "(Gilbreth, supra, at p. 57-58, quoting Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1483.)

So we have some definitive answers. Bridgeforth and Gilbreth, of course, rely on their predecessors. It is affirmatively established that a prior felony conviction, at least one that can be reduced to a misdemeanor, may not prevent someone from possessing firearms, provided the court has either imposed a misdemeanor sentence (Pen. Code §17(b)(1)) or declared the offense to be a misdemeanor (Pen. Code §17(b)(3).) In addition, the decision in Gilbreth has been followed by other, later opinions from other California Courts of Appeal, including People v. Lewis (2008) 164 Cal.App.4th 533, at 536, as well as several unpublished opinions.

With all this said, that does not necessarily end the practical roadblocks that California Department of Justice, ATF and the FBI may put in someone's way. Just because the offense is now a misdemeanor, does not mean that the information has been cleared up with those agencies. Once the felony offense has been reduced to a misdemeanor the court has to transmits the information to the Department of Justice, and the Department of Justice must process the information within their record review department, and change your rap sheet to reflect the reduction.  

 




Category: Criminal Cases

Michael Mitchell

Michael Mitchell is a Fresno attorney who practices in the areas of DUI, personal injury & criminal law. Visit his Google+ profile.


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Michael E. Mitchell, at the Mitchell Law Group, Inc., is one of the top DUI defense attorneys in Fresno, California. He has over a decade of experience handling DUI cases throughout the Central Valley, including in Clovis, Madera, Tulare, Visalia. He is a certified field sobriety instructor and practitioner under the standards of the National Highway Traffic Safety Administration (NHTSA) and is a member of the California DUI Lawyers Association. His advice and knowledge is, routinely, sought after by other attorneys practicing in the area of DUI defense. He is an expert in the area of DUI defense in both Federal, State, and on the Appellate level. If you're looking for the best DUI Lawyer in Fresno to handle your case, give us a call today to see how we can put our knowledge to work for you.