Under California law, if a defendant is found guilty (or pleads guilty) to any felony crime or any qualifying misdemeanor crime, then he or she is forbidden from owning or possessing a firearm. However, it is possible to restore the defendant's right to own a firearm in California, so long as the defendant's underlying crime is not related to domestic violence.

 

The process for restoring a convicted person's right to own or possess a firearm depends on the type of conviction that the defendant suffered. The amount of time that has elapsed since the defendant's conviction will also play a role in determining whether or not the defendant can restore his or her right to own or possess a firearm.

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Per California law, a firearm is a handgun, rifle, or shotgun, but other weapons may qualify as a firearm as well.

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Note: If a defendant does not restore his or her right to own or possess a firearm, and that person is caught with a firearm, then he or she may suffer a new criminal charge: felon in possession of a firearm or misdemeanant in possession of a firearm (PC 29800). There is new 9th Circuit Court of Appeals cases that might limit the prosecution of PC 29800 where the underlying felony was non-violent, or where the defendant possessed the firearm in self-defense (U.S. v. Duarte, 2024). 

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Felony Conviction: All felony convictions carry a lifetime ban on firearm possession or ownership. Some criminal convictions carry a ban on ammunition and possession of body armor as well. Some misdemeanor convictions also carry a ban on firearm possession. The qualifying misdemeanor convictions carry up to a ten-year restriction from owning or possessing a firearm.

 

However, as stated, there are federal laws that prohibit a convicted felon from owning or possessing firearms where the defendant's underlying crime is related to domestic violence. This is true even when the defendant may otherwise have his firearm rights restored in California.

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Misdemeanor Conviction: Misdemeanor convictions that carry up to a ten-year restriction on firearm possession are crimes that demonstrate violence, threats, or gun use, such as brandishing of a weapon, criminal threats, or misdemeanor assault. The complete list of misdemeanors that carry a ban on firearms for up to ten years include:

 

Misdemeanor Penal Code sections 71, 76, 136.1, 136.5, 140, 148(d), 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 246.3, 247, 273.5, 273.6 417, 417.6, 422, 626.9, 646.9, 25800 (formerly 12023), 17510 (formerly 12590), 17500 (formerly 12024), 25300 (formerly) 12040), 25800 (formerly 12023), 26100(c), (formerly 12034(b)), 26100(d) (formerly 12034(d)), 27510 (formerly 12072(b)), 30315 (formerly 12320), and 32625 (formerly 12220). Misdemeanor Welfare and Institution Code sections 8100, 8101 and 8103.

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Restraining Orders: Some civil laws may also be used to ban individuals from owning or possessing a firearm. These laws ban guns or firearms from persons not as a result of a criminal convictions but rather because of some applicable civil law, such as a restraining order or a criminal protective order or even a finding a by court that a person is found to be insane or mentally disabled. These bans expire when the order expires or when the person is found to be of sound mind (up to five years for restraining orders and up to ten years for criminal protective orders).

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Restoring Firearm Rights: For felony convictions that do not involve a firearm crime the defendant can apply for a certificate of rehabilitation, which demonstrates to the court that the defendant has rehabilitated himself or herself and is no longer a criminal threat to society. After the granting of a certificate of rehabilitation the defendant can apply for a gun permit.

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Note: In 2024, the 9th Circuit Court of Appeal, in U.S. v. Duarte, held that a defendant convicted of a non-violent felony might have his gun rights restored after his sentence is complete. This is new and developing law. Please check back here for update on application of U.S. Duarte as it applies to non-violent felons.

 

For felony convictions that involve the use of a firearm, such as assault with a firearm, the defendant will need to obtain a governor's pardon and the pardon will need to specifically include an exception that allows for the defendant to own or possess a firearm.

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Wobbler Offenses: For felony convictions that involved a wobbler crime (a crime that could have been punished either as a felony or as a misdemeanor) the defendant might be able to have his or her felony reduced to a misdemeanor and thereafter restore his or her right to own or possess a firearm. If the new misdemeanor classification remains on the list of misdemeanors crimes that require a ten year firearm ban then the defendant will have to wait ten years to restore his or her firearm rights after the date of conviction (List of misdemeanor crimes that require a ten year firearm ban listed above).

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Domestic Violence Cases: The conviction of a domestic violence crime, including domestic battery (PC 243(e)(1)) and inflict corporal injury to a spouse (PC 273.5(a) carries a lifetime ban on ownership of a firearm. This is a federal law, and which trumps California state law; therefore, even if the defendant successfully petition's the court for a certificate of rehabilitation or pardon he or she will remain banned from owning or possessing a firearm.

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Note: In U.S. v. Duarte (2024), the 9th Circuit Court of Appeals held that the states must make laws consistent with the 2nd Amendment, and that a convicted non-violent felon might have his gun rights restored after his sentence is complete. This might apply to domestic violence crimes as well, including misdemeanor domestic violence crimes, so long as those crimes are not listed as "violent felonies." The application of U.S. v. Duarte will play out over the next several years. Please check back here for updates on application of U.S. v. Duarte as it applies to federal firearm prohibitions for convicted felons (and misdemeanants).

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Expungement: A California expungement of a felony or misdemeanor offense does not lift the ban on possession or ownership or a firearm.

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To learn more about the right to own or possess firearms in California, or the restoration of the right to own or possess firearms, contact our criminal defense attorneys today. Call today!

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909-913-3138

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