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Frequently Asked Legal Questions and Answers

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 Criminal Law

Q.  If I had a felony and later had it reduced and expunged can I own a gun and go hunting?

A.  I analyzed this from the context of California's penal statute prohibiting possession of a firearm by a convicted felon. My analysis is based on the actual penal statute, and not from the position of a gun owner attempting to clear the background check with the Department of Justice by using a properly registered gun dealer.

For years the statute prohibiting possession of a firearm by a convicted felon was Penal Code section 12021, subdivision (a). In 2012, the state legislature recodified many of the sections of California's Dangerous Weapons Control Law. The statute prohibiting possession of a firearm by a felon was renumbered without substantive change as Penal Code section 29800. I mention this because the cases that I discuss here use the old statute number, but the substantive law itself remains the same.

The elements of the crime of a felon in possession of a firearm are conviction of a felony and ownership or possession of a firearm. (People v. Hilliard (1st Dist. 1963) 221 Cal.App.2d 719.) Case law is clear, however, that the statute is not violated if the prior felony was reduced to a misdemeanor.

The Courts of Appeal have reversed convictions for violations of Penal Code section 12021, where the predicate felony was reduced to a misdemeanor pursuant to Penal Code section 17. (People v. Galbraith (1st Dist. 2007) 156 Cal.App.4th 53.) A defendant cannot also be properly convicted of violating Penal Code section 12021 where out of state felony convictions have also been reduced to misdemeanors. (People v. Lewis (3rd Dist. 2008) 164 Cal.App.4th 533.)

Note that in both of these cases the defendant was charged and convicted at the trial court level , even though the appellate courts reversed the convictions. That means those defendants were not guilty of violating the statute, but were charged by law enforcement. Don't be surprised if you run into trouble if you have had a prior felony reduced to a misdemeanor, and are in possession of a firearm.

 

Real Estate Law

Family Law

Probate, Wills, Trusts and Estate Planning

Q.  If I use an online or do-it yourself will kit to make my will does it have to be notarized to be legal?

A. Criminal law and estate planning/ probate law are two areas of law that I strongly advise people to hire a lawyer for.

One of the problems that arisen as a result of the internet and modern technology is the proliferation of will kits that are completed on a computer. Typically these kits involve a user entering various options into a program, printing a computer printed will, and then signing and having them notarized pursuant to the instructions with the kit. The problem with these types of wills is that they are not legally valid in California.

To be considered a legally valid will that can survive the probate process, the document must either be classified as a holographic will or it must be properly attested. A holographic will is a will where all of the material terms and the signature are in the handwriting of the testator – the person making the will. (Prob. Code, § 6111.)

Obviously, a document printed by a computer printer and signed by the testator does not qualify as a holographic will, because the material terms of the will are not in the testator's handwriting. But with only the signature of the testator, and a notarization, the will does not comply with California's formal will attestation statute either.

Traditionally, a formally attested will had to be witnessed being signed by at least two (2) people each of whom were present at the same time, witnessed either the testator sign the will or the testator's acknowledgement of the signature. (Prob. Code, § 6110, subd. (c).)

In 2008, the California Legislature added another subsection to Probate Code section 6110, to cover situations of harmless error. "If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will." (Prob. Code, § 6110, subd. (c)(2).)

Personally, I would never rely on this new addition to the statute to save what is otherwise an improperly attested will. It will save money and headaches for your loved ones down the road if you do it right the first time.

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