Can a Misdemeanor Conviction Affect Your California Gun Rights?
Many people assume that only a felony conviction can cause them to lose their right to own or possess firearms in California. That is not always true.
Although felony convictions generally carry serious firearm consequences, certain misdemeanor convictions can also prohibit a person from possessing, purchasing, receiving, or having custody or control of a firearm. Depending on the conviction, the prohibition may last for years and, in some circumstances, federal law may create additional restrictions.
For anyone facing a California misdemeanor charge who owns firearms, hunts, has a concealed carry permit, works in a firearm-related occupation, or otherwise values firearm rights, the potential consequences should be considered before resolving the criminal case.
Can a Misdemeanor Cause You to Lose Your Gun Rights in California?
Yes.
California Penal Code section 29805 identifies numerous misdemeanor convictions that can result in a firearm prohibition. The precise duration and scope of the prohibition depend on the offense and applicable law.
This means that a case does not have to be charged as a felony to create significant firearm consequences.
A defendant considering a plea agreement should therefore look beyond whether the proposed disposition involves jail, probation, fines, or classes. The exact statute of conviction may matter enormously.
What Types of Misdemeanors Can Affect Firearm Rights?
California's firearm laws identify a variety of misdemeanor convictions that can trigger firearm restrictions.
Depending on the particular statute and circumstances, offenses involving violence, threats, weapons, domestic violence, or other specified conduct may have firearm consequences.
Because California's firearm statutes have changed over time, defendants should determine the consequences of the specific code section under consideration, rather than assuming that all misdemeanor convictions are treated alike.
This can become particularly important during plea negotiations.
Two proposed misdemeanor dispositions may appear similar in terms of probation or sentencing while producing very different consequences for firearm ownership.
Domestic Violence Misdemeanors Can Create Additional Problems
Domestic violence cases deserve particular attention because both California and federal law may affect firearm rights.
For example, California domestic violence offenses can result in state firearm restrictions. Federal law also contains a separate prohibition concerning certain misdemeanor crimes of domestic violence.
The federal analysis is not necessarily identical to California's analysis.
As a result, someone negotiating a domestic violence case should not assume that avoiding a felony automatically protects the person's ability to possess firearms.
The exact offense of conviction can be critical.
Protective Orders Can Affect Firearm Rights Even Without a Conviction
A criminal conviction is not the only way firearm rights can be restricted.
Protective and restraining orders may independently prohibit firearm possession while the order remains in effect. This issue frequently arises in domestic violence cases, where a criminal protective order may be issued early in the proceedings.
A person may therefore face firearm restrictions while the criminal case is still pending, even though the person has not been convicted of anything.
Violating a firearm restriction imposed by a court order can create additional legal problems. Anyone subject to such an order should carefully review its terms and comply with applicable surrender or transfer requirements.
Why Firearm Consequences Matter During Plea Negotiations
Criminal cases are often resolved through negotiated dispositions.
When firearm rights matter to a defendant, the defense should identify potential firearm consequences before a plea is entered.
Consider a case in which the prosecution offers to resolve a charge as a misdemeanor with no jail time. On its face, the offer might sound favorable. But if the particular conviction carries a substantial firearm prohibition, that consequence may be extremely important to someone who owns firearms or whose occupation requires them.
Depending on the facts and available charges, a defense attorney may explore whether the case can instead be dismissed, diverted, reduced, or resolved under a different statute that accurately reflects the conduct while avoiding unnecessary collateral consequences.
Whether such an outcome is possible depends on the facts, evidence, charges, criminal history, and prosecutor's position.
What Happens to Firearms You Already Own?
A firearm prohibition generally concerns possession and control, not merely the purchase of new firearms.
Accordingly, someone who becomes prohibited should not assume that existing firearms can simply remain in the person's home.
California law provides procedures concerning relinquishment, transfer, or other lawful disposition of firearms when a person becomes prohibited. The applicable procedure can depend on why the prohibition arose.
This is an area where attempting an informal workaround can create serious problems. Constructive possession or continued access to a firearm may potentially become an issue even if someone else claims to own it.
Can Expungement Restore Firearm Rights?
Not necessarily.
California expungement can provide important benefits, but an expungement should not automatically be treated as restoration of firearm rights.
The analysis may instead depend on the underlying conviction, whether a felony can be reduced to a misdemeanor, the particular firearm prohibition involved, and whether state or federal law applies.
This distinction is important because someone may successfully obtain post-conviction relief while still remaining prohibited from possessing firearms.
What About Reducing a Felony to a Misdemeanor?
Certain California offenses are “wobblers,” meaning they can be punished as either felonies or misdemeanors.
Under appropriate circumstances, a person convicted of a wobbler felony may be able to seek reduction to a misdemeanor under Penal Code section 17(b).
A reduction can have significant consequences, but firearm restoration is a complicated area of California and federal law. Whether a reduction restores firearm rights depends on the particular conviction and applicable prohibition.
Anyone considering post-conviction relief specifically for the purpose of restoring firearm rights should therefore have the complete conviction history reviewed before assuming that a particular motion will accomplish that goal.
Why the Exact Conviction Matters
One of the most important lessons for defendants is that the label “misdemeanor” does not answer the firearm question.
A misdemeanor may carry relatively minor sentencing consequences but significant collateral consequences. Conversely, another negotiated disposition might have substantially different effects.
A defense attorney evaluating a criminal case should therefore consider:
The exact statute charged;
Any proposed lesser offense;
California firearm prohibitions;
Potential federal firearm restrictions;
Existing restraining or protective orders;
Whether the defendant already owns firearms;
Employment consequences;
CCW consequences; and
Potential post-conviction remedies.
These issues are best addressed before a plea rather than discovered afterward.
Talk to a Northern California Criminal Defense Attorney About Firearm Consequences
If you have been charged with a misdemeanor in California and firearm rights are important to you, the consequences of a conviction should be evaluated before resolving the case.
A criminal defense attorney can review the specific charges, possible plea agreements, applicable firearm prohibitions, and potential alternative resolutions.
For defendants facing criminal charges in Chico, Butte County, Glenn County, Tehama County, Yuba County, Sutter County, Colusa County, and throughout Northern California, understanding the collateral consequences of a misdemeanor conviction can be just as important as understanding the potential sentence.
A misdemeanor may sound minor. When firearm rights are involved, its consequences may be anything but.
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