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Does a pc11350a felony conviction set aside/dismissed under pc1210.1 prevent party from possesing a "Non Concealable" Firearm

Redondo Beach, CA |

1210.1:
(2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6.

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Attorney answers 2

Best Answer
Posted

It actually prevents a person from possessing ALL firearms. PC 1210.1 (aka Prop 36) does not restore firearm rights, and a person convicted for a felony drug offense and receives relief under this section is still prohibited from possessing firearms under California and federal law.

You are prohibited from possessing firearms (and ammunition) under California law because this section still allows you to be convicted under "under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6" which is California's firearm prohibited persons section.

Because this section does not restore firearm rights under California law a person is still considered prohibited under federal law too. 18 USC 921.

Joe Silvoso
Michel & Associates
Firearms Lawyers
(562) 216-4444

Asker

Posted

PC 29800 (a) states: (a) (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. PC 23515 reference 'violent use of a firearm' and states: As used in the provisions listed in Section 16580, an offense that involves the violent use of a firearm includes any of the following: (a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245. (b) A violation of Section 246. (c) A violation of paragraph (2) of subdivision (a) of Section 417. (d) A violation of subdivision (c) of Section 417. None of which would apply to 11350a. 29800 (b) and (d) would not apply. PC 29800 (c): Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied: (1) Conviction of a like offense under California law can only result in imposition of felony punishment. (2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments. Neither of which would apply to 11350a. Please comment.

Asker

Posted

...clarification, neither would apply 11350a pursuant to 1210.1

Joseph Anthony Silvoso III

Joseph Anthony Silvoso III

Posted

Penal Code section 29800(a)(1) states: "Any person who has been convicted of A FELONY under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." (emphasis added) A person convicted of a FELONY 11350(a), even if they have received relief under 1210.1, can still be convicted for violating 29800. This is because the wording of 1210.1(e)(2) does not preclude it. A person who receives a felony conviction and 1210.1 relief, is still considered prohibited because the relief does not completely remove the conviction for purposes of a person possessing firearms. "Thus, even if, pursuant to section 1210.1, subdivision (d)(1), a conviction for a nonviolent drug offense has been “set aside” and “deemed never to have occurred,” and a defendant has been “released from all penalties and disabilities” resulting from the conviction offense, that fact does not prevent that conviction from later being used as a prior felony conviction permitting, under section 1210.1, subdivision (d)(2), a “conviction under section 12021.” People v. Delong (2002) 101 Cal.App.4th 482, 491.

Asker

Posted

...and PC 29800 (a) would not apply based on PC 29800 (c). Again please correct me if I am wrong.

Joseph Anthony Silvoso III

Joseph Anthony Silvoso III

Posted

c only applies to federal convictions. Those "convicted of a felony under the laws of the United States" not California. California Health and Safety Code section 11350 is a California state offense.

Asker

Posted

Damn. A shame the law sees 1 diazapam/valium as a way to remove a persons civil rights for life. Seems unconstitutional.

Posted

You've discovered a distinction in the text that is overcome by the reference to PC 29800 which prohibits anyone ever convicted of a felony or who is addicted to a controlled substance from every owning or possessing ANY firearm.

So the short answer is yes, Pc 1210.1 does prohibit someone who has had a felony PC 11350 conviction set aside from owning or possessing, etc., a firearm.

Asker

Posted

PC 29800 (a) states: (a) (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. PC 23515 reference 'violent use of a firearm' and states: As used in the provisions listed in Section 16580, an offense that involves the violent use of a firearm includes any of the following: (a) A violation of paragraph (2) or (3) of subdivision (a) of Section 245 or a violation of subdivision (d) of Section 245. (b) A violation of Section 246. (c) A violation of paragraph (2) of subdivision (a) of Section 417. (d) A violation of subdivision (c) of Section 417. None of which would apply to 11350a. 29800 (b) and (d) would not apply. PC 29800 (c): Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied: (1) Conviction of a like offense under California law can only result in imposition of felony punishment. (2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments. Neither of which would apply to 11350a. Please comment.

Asker

Posted

...clarification, neither would apply 11350a pursuant to 1210.1

Asker

Posted

...and PC 29800 (a) would not apply based on PC 29800 (c). Again please correct me if I am wrong.

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