This topic will be explored more later, but it should be thrown out their for comment and contemplation now:
Since the federal probation on misdemeanor domestic violence cannot be lifted by the state unless (1) the state took away the firearm rights and (2) the state took an action to restore the rights, those convicted of a misdemeanor DV in CA are in worse shape when it coms to firearm rights than those convicted of felony DV in CA.
This anomaly is created by the fact that the federal prohibition on firearm ownership of those convicted of domestic violence only applies to misdemeanors— and apparently not misdemeanors that were pled down after sentencing. So someone convicted of felony DV can have their case reduced from a felony to misdemeanor (which eliminates CA's prohbition on felon's owning a firearm) and the federal law will not apply to the reduced misdemeanor conviction because it was reduced post-sentencing.
Here is where the possible way around the federal prohibition comes into play. A CA court and change the classification of a sentence pursuant to Penal Code section 17(b). Though it has probably never been attempted, but a person can ask a court— even many years after completing the sentence, to increase the sentence from a felony to misdemeanor, and the reduce it back from felony to misdemeanor.
So, the state would take away the person's firearm rights by making the case a felony, and then restore the rights by making it a misdemeanor. This action, as contrived as it may seem, very well may take the petitioner out of the purview of the federal firearm ban.
More soon...
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4 comments:
Please keep us posted. I want my gun rights back.
Thank you. Please keep checking back. Firearm rights are a continuing topic of this blog and undergoing constant changes in the courts.
-Mat
Just completed my thirty day sentance today. Was charged with Felony Stangulation, Misd.: Battery and Disorderly. DA offered 2x counts of Misd. Battery, droping bail jumping, and continued contact with my girlfriend. (Apparently WI isn't so understanding on brain injury... I was in a car accident nine days prior to the assault which resulted in brain hemmoraging(left lobe), and contusions on the left, frontal, and right lobe.) Well, got my PO meeting here in thirty... So I better get on my way. This site is bookmarked, I'd love to see something turn out. Thanks, RG!
There may be another way around the MDV firearm prohibition. If you petition the court for a modification of sentence, say to a (415), that may not trigger the Feds.
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