Domestic Violence Convictions & Gun Rights in California

A domestic violence conviction can have a devastating effect on your life. You could go to jail. You could get a permanent criminal record. And you could lose your gun rights... for life.

California and federal law both prohibit people with domestic violence convictions from possessing guns. And courts have repeatedly ruled that such restrictions do not violate your Second Amendment right to bear arms.

California crimes of domestic violence

California law defines "domestic violence" as the abuse of:

  • your current or former spouse,
  • a person with whom you live or have lived (a "cohabitant"),
  • the mother or father of your child,
  • anyone you are or were dating, and
  • a current or former fiancé(e) .

When such abuse results in physical injury, domestic violence may be filed as a felony. However, the majority of domestic violence charges are filed as misdemeanors.

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Penal Code 29800 – California's "felon with a firearm" law

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. Thus if you have been convicted of felony domestic violence in any jurisdiction, you are prohibited for life from possessing a gun in California.

Violation of Penal Code 29800 is punishable by:

  1. 16 months, or two (2) or three (3) years in the California state prison, and/or
  2. a maximum $10,000 fine.
Penal Code 29805 -- California's 10-year firearms ban

Under Penal Code 29805 PC, about 40 misdemeanor convictions carry a ten-year firearms ban.

These include battery, threats and stalking against any of the people listed above.

If you are convicted of misdemeanor domestic violence, you are prohibited under California law from possessing a gun for ten years. After the 10-year period is up, your right to possess a gun is automatically restored. The only condition is that during that time you have not otherwise become subject to a firearms ban.

18 United States Code 922(g) – the federal firearms ban

Unfortunately, the California 10-year ban isn't the end of the story. Under federal law, most domestic violence convictions trigger a lifetime firearms ban. And where federal and California laws conflict, federal law takes precedence.

Most people convicted of a California crime of domestic violence will never legally be able to own a gun anywhere in the United States.

And if you are convicted of possessing a gun in violation of federal law, you face:

  1. a fine of up to $250,000, and/or
  2. up to 10 years in federal prison.
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We are a firm of former cops and prosecutors turned criminal defense lawyers. We have considerable experience in both California domestic violence laws and California firearms laws.

To help you understand the nuances of how a domestic violence conviction affects your gun rights, our California criminal defense lawyers discuss the following, below:

1. Loss of California gun rights after a domestic violence conviction

1.1. California's legal definition of "domestic violence"

1.2. Penal Code 29800 PC, California's "felon with a
firearm" law

1.3. Penal Code 29805 -- California's 10-year firearms ban

1.4. California protective or restraining orders

1.5. Confiscation of your firearm after a domestic
violence arrest

2. Federal firearms law and domestic violence

2.1. The conflict between federal and California law

2.2. The Gun Control Act of 1968 – 18 USC 921-930

2.3. The Lautenberg Amendment – 18 USC 922(g)(8)
and (9)

2.4. Domestic violence protective orders and federal
firearms law

2.5. Domestic violence convictions

2.5.1. The legal definition of a felony under federal firearms law

2.5.2. The federal definition of "misdemeanor crime of domestic violence"

2.6. Penalties for possessing a firearm in violation of the federal ban

3. Expungements and California governor's pardons
4. How can I preserve my gun rights following a California domestic violence arrest?

4.1. Fighting domestic violence charges

4.2. Negotiating a plea bargain

You may also find helpful information in our related articles on California Domestic Violence; California Firearms Offenses; Consequences of a Felony Conviction; Penal Code 29800 PC Felon with a Firearm; California Expungement Law; ¬How to Restore Your California Gun Rights; California Legal Defenses; Penal Code 273.5 PC, Corporal Injury on a Spouse or Cohabitant; Penal Code 243(E)(1) Domestic Battery; Penal Code 243.4 Sexual Battery; Penal Code 422 Criminal Threats; and, Penal Code 646.9 PC Stalking.

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1. Loss of California gun rights after a domestic violence conviction

1.1. California's legal definition of "domestic violence"

In California, domestic violence is defined as abuse of:

  • your current or former spouse,
  • a person with whom you live or have lived (a "cohabitant"),
  • the mother or father of your child,
  • anyone you are or were dating, and
  • a current or former fiancé(e).

This is a broader definition than under federal law. As discussed in Section 2.5., below, federal law does not define offenses against people you have dated as domestic violence.

1.2. Penal Code 29800 PC, California's "felon with a firearm" law

Penal Code 29800 is California's "felon with a firearm" law. Despite its name, this law actually covers more than just felonies. PC 29800 prevents four groups of people from owning, possessing, purchasing, or receiving firearms:

  1. people who have been convicted of a felony offense in any state or country,
  2. people who are addicted to a narcotic drug,
  3. people with two or more convictions for Penal Code 417(a)(2), brandishing a firearm, and
  4. people with just one conviction for certain weapons-related misdemeanors.

The law also applies to minors who were convicted of any of the above offenses when they were tried as adults.

Domestic violence that results in an injury – even a minor one – as the result of physical force can be filed as a felony. This includes both wounds and injuries from strangulation or suffocation.

If you are convicted of domestic violence as a felony, California law prohibits you from ever legally possessing a gun.

Violation of Penal Code 29800 is also a felony. Conviction subjects you to:

  1. 16 months, or two (2) or three (3) years in the California state prison, and/or
  2. a maximum $10,000 fine.
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You may also be required to forfeit your weapon.

1.3. Penal Code 29805 -- California's 10-year firearms ban

Many domestic violence charges do not involve physical injuries. These offenses can only be charged as misdemeanors. In addition, prosecutors will sometimes allow you to plea to a misdemeanor when felony domestic violence has been charged.

Under Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

These include the following crimes of domestic violence:

If you are convicted of... or you plead guilty to... one of these misdemeanor crimes, California laws prohibits you from possessing a firearm for 10 years. When the 10 years are up, you do not need to do anything. Your California gun rights are automatically restored as long as you are not otherwise prohibited from owning a firearm.

However, as discussed below, federal law still most likely prohibits you from possessing a gun.

In addition, if you violate Penal Code 29805, you face possible:

  1. imprisonment of up to one year in county jail or California state prison, and/or
  2. up to a $1,000 fine.

1.4. California protective or restraining orders

Protective orders are commonly issued in connection with domestic abuse allegations.

California Penal Code 29825 makes it a crime to possess or purchase a firearm if you are subject to a protective order that bars you from possessing a gun.

A "protective order" is one that:

  • forbids specific acts of abuse;
  • excludes you from a dwelling; and/or
  • forbids other specified behaviors the court determines necessary to effectuate either of the first two types of orders. For purposes of California restrictions on gun possession, it does not matter whether the protective order was ex parte, after notice and hearing, or as part of a judgment.

1.5. Confiscation of your firearm after a domestic violence arrest

If you are arrested for a California domestic violence offense, the investigating law enforcement officer is legally required to confiscate any firearms or other weapons that were:

  • allegedly used during the commission of the offense,
  • in plain sight, or
  • discovered during a lawful search of your person/premises.

If your gun is considered evidence, law enforcement will keep it until the resolution of your case. If you are acquitted...and you lawfully possessed your weapon...it will likely be returned to you.

However, the firearm will most likely be declared a nuisance and subject to destruction if:

  • you possessed the gun illegally, or
  • you are convicted of the charges.
2. Federal firearms law and domestic violence

2.1. The conflict between federal and California law

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Under the Supremacy Clause of the United States constitution, federal law prevails over California law.

Therefore, even if you are only subject to a 10-year ban under California law, if your offense qualifies as a misdemeanor crime of domestic violence ("MCDV") under federal law, you are banned from owning firearms for life.

2.2. The Gun Control Act of 1968 – 18 USC 921-930

The Gun Control Act of 1968 is set forth in sections 921 – 930 of Title 18 of the United States Code.

Since it was passed, this act has prohibited convicted felons and certain other people from:

  • possessing guns in or affecting commerce, or
  • receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

You meet the commerce requirement if your gun was shipped or transported from another state or country, and you know that you have the weapon.

2.3. The Lautenberg Amendment – 18 USC 922(g)(8) and (9)

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In 1996, the Lautenberg Amendment to the Gun Control Act expanded the list of people federally prohibited from possessing a gun. Added were:

  • people under restraining orders for harassing, stalking, or threatening an intimate partner or his/her child, and
  • people convicted of a misdemeanor crime of domestic violence.

Let's take a closer look at these two categories.

2.4. Domestic violence protective orders and federal firearms law

Domestic violence protective orders are sometimes referred to as "DVPO," restraining orders, or "no contact" orders.

Under 18 USC 922(g)(8), you are prohibited from possessing a firearm if you are subject to a DVPO restraining you from:

  • harassing, stalking, or threatening an intimate partner and/or or his or her child, or
  • engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury.

For purposes of this law, an "intimate partner" is:

  • your current or former spouse,
  • the mother or father of your child, or
  • someone with whom you live or have lived (a "cohabitant").

In order for the firearms prohibition to apply, you must have received actual notice of the DVPO hearing and had an opportunity to participate. An ex-parte order... that is, an order issued in emergency circumstances which does not give you notice and an opportunity to participate... does not subject you to the federal ban.

In addition, for the federal ban to apply the protective order must also:

  • include a finding that you represent a credible threat to the physical safety of such intimate partner or child; or
  • by its terms explicitly prohibit the actual, attempted, or threatened use of physical force that would reasonably be expected to cause bodily injury to your intimate partner or child.

This precise language does not need to be contained in the court order. However, the order must contain explicit terms that are substantially similar in meaning. A court order that merely requires "no contact" does not meet this requirement.

As you can see, the requirements for the federal ban based on a DVPO are much stricter than the California ban. However, the penalties are more severe.

If you are convicted in federal court of illegal possession of a firearm based on a DVPO, you face:

  1. a fine of up to $250,000, and/or
  2. up to 10 years in federal prison.
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2.5. Domestic violence convictions

2.5.1. The legal definition of a felony under federal firearms law

The federal definition of a felony covers anyone who has been convicted, in any court, of a crime punishable by imprisonment for a term exceeding one year.

It is not necessary that you actually have been sentenced to more than a year imprisonment. If you are convicted of a felony, you are covered by the federal definition, even if you were granted probation.

Felony domestic violence can be punished by more than one year imprisonment in California. As a result, if you are convicted of California felony domestic violence, you are subject to a lifetime federal firearms ban (as well as the lifetime ban under California law).

2.5.2. The federal definition of "misdemeanor crime of domestic violence"

Federal law defines "misdemeanor crime of domestic violence" ("MCDV") as an offense that:

  1. is a misdemeanor under Federal, State, or Tribal law;
  2. has, as an element:

    • the use or attempted use of physical force, or
    • the threatened use of a deadly weapon;

      and

  3. is committed by:

    • a current or former spouse of the victim,
    • a parent or guardian of the victim,
    • a person with whom the victim shares a child in common,
    • a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or
    • a person similarly situated to a spouse, parent, or guardian of the victim.

Note that this definition is more expansive than that of "intimate partner" for purposes of the section of the law applicable to protective orders.

Additionally, this definition differs from the California definition of domestic violence in several important respects:

  • you must have been represented by counsel, or have knowingly and intelligently waived that right;
  • you must have been entitled to a jury trial and either (1) been tried by a jury, or (2) knowingly and intelligently waived that right;
  • offenses against people you have dated (but never married, never lived with, and never had children with) do not count as MCDV; and
  • to qualify as a MCDV under federal law, the offense must have involved the use or attempted use of force, or the threatened use of a deadly weapon.

So as you can see, an offense that counts as a crime of domestic violence under California law is not necessarily one under the federal statute.

Example: Bob threatens to choke his ex-wife the next time she takes their kids somewhere without his permission. He is convicted of making criminal threats California Penal Code 422 PC. Under California law, this conviction triggers a 10-year firearms ban.
But this conviction does not generate a federal ban on Bob's gun rights. This is because there was no actual physical force or threatened use of a deadly weapon. As a result, unless Bob does something else that legally restricts his gun rights, Bob will be entitled to possess a firearm in 10 years-time.

Conversely, there may be some offenses that qualify as federal crimes of domestic violence, even though they do not meet the California definition.

Example: Janet is convicted of Penal Code 415 PC, California's "disturbing the peace" law for shoving her husband in public. This is not a crime that triggers a California firearms' ban. But it could conceivably trigger the federal lifetime ban because it:
1. was committed against a spouse, and
2. involved the use of physical force.

But... the Ninth Circuit U.S. Court of Appeals has held that simple battery under California Penal Code section 242 is not a misdemeanor crime of domestic violence. The court explained that the federal ban requires conduct more serious than mere offensive touching. A state conviction in which no force... or only minimal force... was used or attempted does not qualify.

Thus it is not entirely clear whether a federal court would consider shoving to be force significant enough to meet the federal requirement.

What is clear, however, is that if even one of the elements required under the federal statute is not met, California law alone dictates whether... and when... your gun rights will be restored.

2.6. Penalties for possessing a firearm in violation of the federal ban

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If you possess a firearm when you are subject to a DVPO or have a domestic violence conviction that subjects you to the federal ban, you face:

  1. a fine of up to $250,000; and/or
  2. up to 10 years in a federal prison.

Note that there is no parole in the federal prison system. If you are convicted of violating the federal firearms ban, you will serve your full sentence, less only a possible good behavior reduction of approximately fifteen percent.

3. Expungements and California governor's pardons

California expungement law restores most rights lost after a conviction. However, the right to possess firearms is not one of them.

In addition, an expunged conviction still counts for purposes of federal firearms restrictions. So even if your California domestic violence conviction is expunged, you are still subject to a federal lifetime ban on possessing a gun.

A California gubernatorial pardon, on the other hand, can restore gun rights. But not all pardons do so. The pardon must either be "full and unconditional," or expressly provide that you are entitled to exercise the right to possess a gun.

If you receive a pardon that restores your gun rights, federal law will excuse you from the lifetime ban.

However, governor's pardons are only available for felonies and specific misdemeanor sex offenses. As a result, a pardon won't restore your federal gun rights after a misdemeanor domestic violence conviction.

Even a presidential pardon will not help you if you are convicted of MCDV. The President is unable to pardon you for a state crime.

Thus the only way to ensure that you don't lose your gun rights is not to be convicted of a crime of domestic violence in the first place.

4. How can I preserve my gun rights following a California domestic violence arrest?

As discussed, federal law prohibits restoring your gun rights following a domestic violence conviction. So the goal is to prevent these rights from being taken away in the first place. There are two steps we take to try to achieve this goal following a client's arrest on domestic violence charges:

  1. fight the case, and/or
  2. negotiate a plea bargain.

4.1. Fighting domestic violence charges

The first step is to fight your domestic violence charge. Our California criminal defense attorneys will evaluate all available legal defenses to challenge the allegation. If there is a good defense available, we may be able to secure a dismissal or acquittal.

Unfortunately, sometimes the evidence against you is simply too strong to fight the charge successfully. When this is the case, we try to negotiate a plea bargain.

4.2. Negotiating a plea bargain

Plea bargaining is a useful tool for both sides. It allows the prosecution to obtain a conviction and allows you to plead guilty to a lesser offense. In addition to carrying a less severe sentence, a lesser offense often carries less of a social stigma.

Just as importantly, some lesser offenses do not trigger a firearms ban.

As Ventura County criminal defense attorney Nicole Valera explains:

"We usually try to plea bargain cases down to California Penal Code 602 trespass...a common plea bargain charge. When that's not possible, we'll at least do our best to plead you to a charge that is unrelated to domestic violence. If the charge is unrelated to domestic violence, you will not be subject to the federal lifetime firearms ban."

Example: Julien barges into his ex-wife's office and wraps his hands forcefully around her throat. He is charged with a misdemeanor violation of Penal Code 273.5 for intentionally inflicting corporal injury on a former spouse. PC 273.5 is one of the misdemeanors that triggers a 10-year firearms ban in California. In addition, because this crime involves physical force, a conviction on this charge would subject him to the lifetime federal firearms ban.
If instead, however... Julien is able to plead to simple battery under Penal Code 243, he should be able to avoid the federal ban. Since simple battery does not require the use of force, the Ninth Circuit has held that it does not meet the federal definition of a misdemeanor crime of domestic violence. It is, however, a charge that triggers California's 10-year firearms ban. So Julien will be able to possess a gun once the California 10-year period has expired.
But... let's say that Julien is allowed, instead, to plead to Penal Code 602 trespass. Trespass triggers neither the California 10-year ban nor the federal lifetime ban on possessing a gun. Thus as long as Julien is not otherwise legally prohibited from owning a gun, the trespassing conviction will allow him to possess a firearm without restriction.
Call us for help...
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If you or loved one is charged with possession of a gun and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada battery domestic violence convictions and gun rights. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

Legal References:

  1. See, for example, United States v. Vongxay (2010) 594 F. 3d 1111. ("[F]elons are categorically different from the individuals who have a fundamental right to bear arms.")
  2. California Penal Code 13700(b) -- "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
  3. California Penal Code 273.5(a) -- Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
  4. California Penal Code 29800 PC. (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.
    (2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
    (b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
    (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.
  5. California Penal Code 273.5(a), endnote 3, above.
  6. California Penal Code 29800 PC, endnote 4, above
    See also California Penal Code 672 PC -- Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.
  7. 18 USC 922(g) -- It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
    ... (8) who is subject to a court order that—
    (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
    (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
    (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
    (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
    (9) who has been convicted in any court of a misdemeanor crime of domestic violence,
    to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
  8. The Supremacy Clause of the United States constitution, Article VI, provides:
    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  9. The federal definition of domestic violence does not include people you have dated. See 18 United States Code 921(a)(33)(A)(2).
    See also United States Department of Justice, Federal Domestic Violence Laws.
  10. 18 USC 924(a)(2) -- Whoever knowingly violates subsection ... (g) ...of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
    See also 18 USC 3571(b) -- ... an individual who has been found guilty of an offense may be fined... (3) for a felony, not more than $250,000.
  11. California Penal Code 13700(b) -- "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
  12. The specific misdemeanors are:
    • California Penal Code 245(a)(2), assault with a firearm;
    •California Penal Code 245(a)(3), assault with a machine gun or assault weapon;
    •California Penal Code 245(d) assault with a firearm against a peace officer;
    •California Penal Code 246 PC, shooting at an inhabited dwelling or car; or
    •California Penal Code 417(c), "brandishing a firearm" at a peace officer.
    See also California Penal Code 29800(a)(1), endnote 4, above, and California Penal Code 23515, which provides in relevant part:
    ...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 [assault with a firearm or assault weapon] or a violation of subdivision (d) of Section 245 [assault with a firearm upon the person of a peace officer or firefighter].
    (b) A violation of Section 246 [discharge of a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar].
    ...(d) A violation of subdivision (c) of Section 417 [brandishing a firearm in the presence of a peace officer].
  13. California Penal Code 29800(b), endnote 4, above.
  14. California Penal Code 273.5 (c) -- As used in this section, "traumatic condition" means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.
  15. Same.
  16. California Penal Code 29800 PC, endnote 4, above
    See also California Penal Code 672 PC, endnote 6, above.
  17. California Penal Code 29800 PC, endnote 4, above.
    See also California Penal Code 25700(a) -- The unlawful carrying of any handgun in violation of Section 25400 is a nuisance and is subject to Sections 18000 and 18005.
    See also California Penal Code 18000 PC
    (a) Any weapon described in Section 19190, 21390, 21590, or 25700, or, upon conviction of the defendant or upon a juvenile court finding that an offense that would be a misdemeanor or felony if committed by an adult was committed or attempted by the juvenile with the use of a firearm, any weapon described in Section 29300, shall be surrendered...
  18. See, for example, California Penal Code 243(e)(1) -- When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.
  19. Penal Code 29800(a) , endnote 4, above.
  20. California Penal Code 29805 PC.
  21. California Penal Code 29825(a) and (b).
  22. California Penal Code 6218 PC -- "Protective order" means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
    (a) An order described in Section 6320 enjoining specific acts of abuse.
    (b) An order described in Section 6321 excluding a person from a dwelling.
    (c) An order described in Section 6322 enjoining other specified behavior.
  23. California Penal Code 18250 PC. If any of the following [specified law enforcement officers] is at the scene of a domestic violence incident involving a threat to human life or a physical assault, or is serving a protective order as defined in Section 6218 of the Family Code, that person shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present...
  24. California Penal Code 18000 PC.
    See also California Penal Code 25700(a) -- The unlawful carrying of any handgun in violation of Section 25400 is a nuisance and is subject to Sections 18000 and 18005.
  25. See endnote 8, above.
  26. 18 USC 922 (g), endnote 7, above.
  27. See same.
  28. See Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, Instruction 8.63 Firearms—Unlawful Receipt (18 U.S.C. § 922(g)):
    In order for the defendant to be found guilty... the government must prove each of the following elements beyond a reasonable doubt:
    First, the defendant knowingly received [specify firearm] [specify ammunition] that had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; and
    Second, at the time the defendant received the [specify firearm] [specify ammunition], the defendant [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)]. If a person knowingly takes possession of [a firearm] [ammunition], [he] [she] has "received" it.
    See also United States v. Beasley (2003) 346 F.3d 930, cert. denied, 542 U.S. 921 (2004) (holding that to establish "knowingly," the government need not prove the defendant's knowledge of the law, only "that the defendant consciously possessed what he knew to be a firearm." ).
  29. 18 USC 922(g)(8).
  30. 18 USC 922(g)(9).
  31. 18 USC 921(a)(32) -- The term "intimate partner" means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
  32. 18 USC 922(g)(8)(A).
  33. United States v. Young (2006) 458 F.3d. 998.
  34. 18 USC 922(g)(8)(C).
  35. United States v. Sanchez (9th Cir. 2011), Case No. 10–10229.
  36. 18 USC 924(a)(2) and 18 USC 3571(b), endnote 10, above.
  37. 18 USC 922(g)(1).
  38. See, e.g., Ceron v. Holder (9th Cir. 2013), case No. 08-70836 (holding that if a defendant is convicted of a "wobbler" offense as a misdemeanor, Penal Code 17(b) converts it for "all purposes" into a misdemeanor. As a result, the crime is not punishable by more than one year imprisonment.)
  39. 18 USC 921(a)(33) (A) -- Except as provided in subparagraph (C), the term "misdemeanor crime of domestic violence" means an offense that—
    (i) is a misdemeanor under Federal, State, or Tribal law; and
    (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
  40. 18 USC 921(a)(33)(B)(i) -- A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
    (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
    (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
    (aa) the case was tried by a jury, or
    (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
  41. California Penal Code 415 PC.
  42. Shirey v. Los Angeles County Civil Service Commission (2013), Second Appellate Division, District Eight, Case No. B238355.
  43. 18 USC 924(a)(2) and 18 USC 3571(b), endnote 10, above.
  44. Under the Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984), Congress eliminated federal parole for most prisoners convicted on or after November 1, 1987.
  45. See introduction to 2012 United States Sentencing Commission Guidelines manual.
  46. California Penal Code 1203.4(a) (1) [felonies], and California Penal Code 1203.4a(a)(1) [misdemeanors].
  47. California Penal Code 1203.4(a)(2) and 1203.4a (a)(2) both provide: Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
  48. 18 USC 921(a)(33)(B)(ii) -- A person shall not be considered to have been convicted of such [a misdemeanor crime of domestic violence] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. (italics added).
    Note that California Penal Code 1203.4(a)(2) and 1203.4a(a)(2), endnote 17, both provide that an expungement does not permit a person to possess firearms. The Ninth Circuit U.S. Court of Appeal has held this to mean that a California expungement does not "erase" a conviction for the purposes of federal firearms laws. See Jennings v. Mukasey (2007) 511 F. 3d 894 (holding that "expungement" under California Penal Code 1203.4 does not eliminate a MCDV conviction, based on its language that "in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.").
  49. The exception is a misdemeanor domestic violence conviction based on someone you are dating, or have dated. As discussed in Section 2.5 of this article, federal law does not define domestic violence to cover these acts.
  50. It is within the governor's discretion whether to restore gun rights as part of a pardon. Please see our related article on How to Restore Your California Gun Rights for more information.
  51. California Penal Code 4854 PC.
  52. See California Penal Code 4852.01. This section lists the criteria for suitability for these avenues of relief. These options are only available to those who have been convicted of a felony or who have been convicted of specific misdemeanor sex offenses.
  53. See United States Department of Justice, Pardon information and instructions.
  54. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
  55. Los Angeles criminal defense attorney Darrell York uses his former experience as a deputy public defender to represents clients accused of domestic violence throughout the greater Los Angeles area. Please contact us at Shouse Law Group to schedule a free consultation.
  56. See California Penal Code 602 PC -- trespass.
    Trespass is a common plea bargain charge because it may be charged as a misdemeanor or an infraction and because it doesn't subject the offender to the same type of social stigma as many other criminal charges do.
  57. Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada battery domestic violence convictions and gun rights or about Nevada's firearm laws in general. Their Nevada law offices are located in Reno and Las Vegas.

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