Frequently Asked Legal Questions and Answers

 Criminal Law

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

Q.  I was arrested by the police. They did not read me my rights. Can I get the case dismissed?

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.

Q.  I was arrested by the police. They did not read me my rights. Can I get the case dismissed?

A.  One of the big problems in today's society is the myth created by television and movies about the way the law really works. One of these myths was created by the many police procedural dramas, such as "Adam-12," "Streets of San Francisco," "NYPD," and "Law and Order." Many of those shows feature police officers reading arrested suspects their Miranda rights/ warnings.

As a result of this, most lay people think that Miranda warnings have to be given when a person is arrested, otherwise the charges can be dismissed. This is not what the Miranda warnings are for. The Miranda warnings and a valid waiver of those rights are required before the admission of evidence of any statement made by the accused during custodial interrogation. That means that the police can arrest a person without the warnings, as long as the police do not interrogate that person while in custody.

The actual U.S. Supreme Court opinion is clear that the warnings apply to custodial interrogation. "Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda v. Arizona (1966) 384 U.S. 436, 444.)

Failure to give the Miranda warnings does not result in an automatic dismissal of the criminal charges. The defendant or his attorney must properly raise the issue and suppress the evidence obtained in violation of Miranda. There are also different exceptions to the inadmissibility of the statements, which are heavily dependent on the facts of each individual case.