Expungement and Gun Ownership Rights
Will an expungement - a dismissal under Penal Code section 1203.4 - restore gun ownership rights in California? The short answer is no. The long answer is somewhat more complicated.
California state law and federal law have different bans on gun ownership. For example, in California a misdemeanor battery conviction under Penal Code section 242 will result in a 10 year firearm ban, but there are no applicable federal gun consequences for that same conviction. On the other hand, a conviction for domestic violence results in a lifetime federal gun ban, while there is no lifetime ban in California. Under both California law and federal law, however, any felony conviction will result in a permanent firearm ban unless the right is restored.
As explained above, an expungement under Penal Code section 1203.4 does not restore gun rights. An expungement is the process of dismissing a case after a conviction to provide employment and professional license benefits. It is also proof of rehabilitation. So how does one go about restoring their firearm ownership rights? The answer depends on whether the conviction is for a "wobbler" felony or whether the conviction is for a "straight" felony.
A "wobbler" felony is one that could have been charged as either a misdemeanor or a felony. After conviction, a person can ask the court to reduce a "wobbler" felony conviction to a misdemeanor under Penal Code section 17, subdivision (b), so long as there has been no prison sentence. A "straight" felony, on the other hand, is one that only could have been punished as a felony. Even if a person just received probation, there is no possibility to reduce it to a misdemeanor if it is not a “wobbler.”
For those convicted of "straight" felonies, the best option is to apply for a full and unconditional pardon from the Governor of California. The first step in applying for a pardon is applying for a certificate of rehabilitation under Penal Code section 4852.01. If the certificate of rehabilitation is granted, it acts as an automatic recommendation to the Governor for a pardon. Even then, however, the odds are not great, so assistance from a skilled attorney can help when asking the Governor to grant an unconditional pardon.
Only the procedures outlined above will restore California gun rights. Although an expungement does not restore gun ownership rights, it does help people further employment opportunities.
If a person is an avid firearm collector, it is very important to avoid a conviction for crimes with significant firearm bans like domestic violence, and to avoid conviction of a felony that cannot be reduced to a misdemeanor. At the trial court level when facing charges, the best solution is to have the case dismissed for a constitutional violation like an unlawful search, negotiate a plea to an alternative firearm safe offense, or to have success at trial. It is far better to maintain gun ownership rights when charged than to rely upon a court to restore those rights later on.
