We are happy to report a recent great result, where we convinced a judge to vacate our client’s conviction and dismiss the case, restoring her gun rights. Officers of the Long Beach Police Department arrested this client for domestic violence in 2014 after she threw a soda can at her boyfriend. She remained in custody and went to court. The Long Beach City Prosecutor charged her with Corporal Injury to Spouse under California Penal Code section 273.5.
The public defender told her that she could go home that day if she accepted a plea deal to a misdemeanor domestic violence charge (Penal Code section 243(e)(1)). Neither the public defender nor the judge told her that this would impact her gun rights beyond the 3-year term of probation.
However, a misdemeanor domestic violence conviction triggers a 10 year gun rights ban under California Penal Code section 29805, and a lifetime gun rights ban under federal law 18 USC 922(g)(9).
Recent developments in gun law, including decisions by the United States Supreme Court, have reinforced that Second Amendment rights are fundamental rights. New York State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. 1 (2022); District of Columbia v. Heller, 554 U.S. 570 (2008); U.S. v. Duarte, (9th Cir. 2024) 101 F.4th 657. This means that attorneys and judges need to advise defendants of these impacts at the time of a conviction.
We filed a motion to vacate the conviction, alleging that the court and her attorney did not properly advise her of the consequences of a conviction when she decided to accept a plea bargain.
Motion to Vacate Conviction
It is unusual to request that a case be overturned so many years later. Several attorneys told this client that it couldn’t be done. But she had a compelling case and kept searching. She is now working as a security guard for a government agency. She is up for a promotion that will require her to carry a gun for work. She went to a gun store and tried to by a gun, but was denied. This was the first time that she learned that she could not have a gun.
With these facts, we had to try to help this young woman move forward with her life. We filed a motion to vacate the plea, or in the alternative grant a writ of habeas corpus. We knew this would be a longshot, so we filed a comprehensive brief, supported by several exhibits. The exhibits included the transcript from the 2014 hearing and letters showing the promotion opportunity. The transcript from 2014 showed that the court did not properly advise her about the long-term impact on her Second Amendment rights. We also got the public defender’s file and observed that the notes did not indicate an advisement regarding gun rights.
Hearing on Motion to Vacate Conviction
Armed with the transcript and the public defender’s file, we went to court for a hearing on our motion. Our client was present for the hearing, and presented well with support from her mother and a colleague.
The prosecutor opposed the motion, which we understand. The court system needs finality – we can’t just overturn 10-year old cases all the time. However, the prosecutor missed the point of our motion and their opposition papers were not quite on point. The judge listened to argument from both sides.
After a few minutes of deliberation, the judge sided with us and granted the motion. The judge vacated the conviction and allowed her to withdraw her plea. That means that the case was then reopened, and we faced the prospect of having to fight the case from the beginning. Next, we asked the judge to dismiss the case in the interest of justice. The prosecutor opposed this request. The judge found that it is in the interest of justice to dismiss the case and bar further prosecution. So, the case is over, and the client no longer has a conviction on her record.
After a round of hugs in the courthouse hallway, we set out on the next steps. We have to update the California Department of Justice (DOJ) and the FBI, so that she doesn’t get denied when she goes to purchase a gun.
Updating Records to Restore Gun Rights
We advised the client to go request her own LiveScan, so that we can see what is reflected on her background. We will then send a certified minute order to the DOJ and FBI, asking them to update their records. These agencies will then send us updated reports to confirm that the conviction is no longer listed. After we have that in hand, we will advise the client that she is cleared to go buy a gun and take that promotion!
Great Result to Restore Gun Rights
This is an unusual result. Many judges would not grant a motion to vacate a conviction so many years later. A lot of judges would be especially hesitant to grant a motion when they know that the purpose is to restore gun rights. But you never know unless you try. Many attorneys are unwilling to try.
Given recent developments in Second Amendment law, these kinds of motions should be granted more often. If you want to discuss your case with an attorney who has been successful in this situation, please contact us at (323) 529-3660 today!
Other domestic violence articles include: Mental Health Diversion and Defining a Dating Relationship
