California Penal Code § 29805 was amended to add a new subsection (b) to change the ten-year ban on owning a firearm or ammunition to a lifetime ban for those individuals convicted on or after January 1, 2019, of a misdemeanor domestic violence (Penal Code § 273.5). California’s firearm ban is now equal to the federal ban under 18 U.S.C. § 922(g)(8), which imposes a lifetime ban on anyone convicted of misdemeanor domestic violence.
A misdemeanor violation of §§ 243(e)(1) or 242 is not subject to this law. Expungement of the 273.5 conviction does not lift the lifetime ban, either under state law or federal law. It also does not restore one’s right to own, possess, has custody or control, or have access to a firearm. Those who were convicted of violating § 273.5 as a misdemeanor before January 1, 2019, were not subject to the lifetime ban, but were subject to the ten-year ban and the federal lifetime ban under the Lautenberg Act, 18 U.S.C. § 922(g).
The legislative intent of the new law is to provide more protection for victims of domestic violence. Anyone who is found to violate § 29805 by owning, possessing, having custody or control of a firearm or ammunition, or having access to a firearm or ammunition is subject to up to one year in county jail and/or a fine of up to $1,000 or state prison for one year. The one-year state prison term would likely be imposed if the person is concurrently convicted of a felony offense with a state prison sentence, whereas the county jail term would be more likely if defendant is not convicted concurrent with any another offense.
The California law is based on passage of Assembly Bill 3129 which requires the California Department of Justice to participate in the National Instant Criminal Background Check (NCIS) to notify the dealer and the chief of police in the city or county where the sale was made that the person is prohibited from owning, possessing, buying, or having control or custody of a firearm under federal law.
The scope of the lifetime ban only affects 273.5 as a misdemeanor, but it would be wise to review its already existing provisions of imposing a ten-year firearm ban for a conviction for violating some other Penal Code sections such as– 242 (simple battery), 243 (battery upon one’s girlfriend, boyfriend, spouse or someone with whom defendant had a dating relationship), 273.6 (child abuse), 417 (brandishing a firearm), 422 (criminal threats) and 646.9 (stalking).
California law defines “domestic violence” as the abuse of your current or former spouse, a cohabitant, the mother or father of your child, anyone you are or were dating or a current or former fiance. When such abuse results in physical injury, domestic violence may be filed as a felony.
Penal Code 29800 PC is commonly referred to as California’s “felon with a firearm” law. It makes it a felony for anyone convicted of a felony anywhere in the world to possess a gun. If convicted of a felony domestic violence in any jurisdiction, you are prohibited for life from possessing a gun in California. Under Penal Code 29805 PC, about 40 misdemeanor convictions mandates ten-year firearms ban.
The lifetime federal firearms ban pursuant to 18 United States Code 922(g) are implemented for most domestic violence convictions. If the federal and California laws conflict, federal law takes precedence. In 2013, the Ninth Circuit Court of Appeals upheld a federal lifetime ban on firearm possession for a misdemeanor conviction under Penal Code section 273.5 in the case of United States v. Chovan. Chovan, defendant was convicted of misdemeanor spousal abuse in 1996. At that time, California law prohibited him from gun possession for 10 years. Federal law under 18 U.S.C. § 922 (g)(9) removed this right for life.
In 2010, more than 10 years after his misdemeanor conviction, Chovan was charged with illegally possessing a firearm. In moving to dismiss the charge, he argued that under a “civil rights restored exception,” the federal law did not apply to him because California law provided restoration of his firearm rights after 10 years. The federal district court denied his motion, and he conditionally pled guilty preserving his right to appeal.
The Ninth Circuit rejected Chovan’s exception claim holding that his civil rights had never been “lost” and therefore could not have been “restored” as a result of California’s time limit on firearm possession. The court reasoned that his original misdemeanor conviction had not taken away his “core civil rights” such as voting, jury participation, or the right to hold public office.
On Chovan’s Second Amendment challenge, the court upheld federal law finding that the government has an important interest in “preventing domestic gun violence,” and that keeping guns out of the hands of those convicted of domestic violence is substantially related to that goal. Chovan subsequently appealed to the Supreme Court, but the Court declined to hear his case.
There may be some options for you to restore your gun rights if you were convicted of a domestic violence offense. A Certificate of Rehabilitation and/or Governor’s Pardon are possible avenues of relief. The process for applying for a Certificate of Rehabilitation and/or Governor’s Pardon are highly complex, and you will need an attorney to guide you in this process. You can reach me directly at [email protected] or my office at 310-601-7144.
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