Can a Reduction of a Felony to a Misdemeanor Restore My Federal Gun Rights?
The federal prohibition on firearm possession is on anyone "who has
been convicted" of a felony,
18 USC 922(g).
If the prior felony was a “wobbler”—that is, a crime
that may be punished by either a felony or a misdemeanor—and you
received felony probation, you must seek a reduction of your felony to
a misdemeanor under California Penal Code
17(b) makes a prior wobbler felony a misdemeanor "for all purposes,"
People v. Gilbreth (2007) 156 Cal. App. 4th 53, 57-58.
A "wobbler" becomes a misdemeanor by a judgment imposing something
other than prison--but when probation is granted there is no judgment.
This is discussed in
United States v. Viezcas-Soto (8th Cir. 2009) 562 F.3d 903:
In granting probation, California judges may either "suspend the
imposition of sentence or ... impos[e] sentence and suspend the execution
People v. Alotis, 60 Cal.2d 698, 36 Cal.Rptr. 443, 388 P.2d 675, 681 n. 3 (1964) (en banc) (citing
Cal.Penal Code § 1203.1). In the former instance, no actual judgment is rendered within the meaning
See id.; see also Gomez-Hernandez, 300 F.3d at 978. This is because under California law, neither an order granting probation
nor a suspension of the imposition of sentence is considered to be a judgment
United States v. Bridgeforth, 441 F.3d 864, 871 (9th Cir.2006) (citing
Robinson, 967 F.2d at 292-93). In the latter instance, by contrast, a judgment is actually rendered.
People v. Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5, 6 (1963) (en banc). And in such a case, if the sentence imposed on a wobbler offense is a
jail term (as opposed to a term in state prison), "the defendant
Penal Code, section 17[(b)(1)], been convicted of a misdemeanor `for all purposes after a judgment,'"
notwithstanding the fact the sentence is thereafter suspended and probation granted.
Alotis, 36 Cal.Rptr. 443,
388 P.2d at 681 (quoting
Cal.Penal Code § 17).
Therefore, in the event a defendant was sentenced initially to a misdemeanor
or to felony probation without an imposed but suspended sentence (that
is, never received a state prison sentence, whether imposed and suspended
or actually served), no judgment was ever entered. Because no judgment
was ever entered, the defendant has never been convicted of a felony for
Most of the time, however, a wobbler sentenced as a felony includes felony
probation with some unimposed sentence.
However, it is imperative that the defendant seek a reduction of that felony
to a misdemeanor. Under
Penal Code 17(b)(3), otherwise, you still retain a felony on your record and firearms ownership
would violate both California and federal law. Then a dismissal may be
Penal Code 1203.4 or
Penal Code 1203.4a.