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Jul 26, 2020

Domestic Violence Convictions and Gun Rights in California

If you’ve been arrested on a domestic violence charge in California, you likely have many questions about what will happen in the coming days, weeks, and months. What might not have crossed your mind are the implications of domestic violence convictions and gun rights in California.

California Domestic Violence Laws

Before diving into domestic violence convictions and gun rights in California, it’s important to understand the broader landscape of California domestic violence laws. If you live in Alameda County, or any other county in California, there are a number of statutes that are used to charge people with domestic violence. While you might be charged with violating a single law, most often you are charged with violating two or more statutes.

California’s domestic violence laws encompass more than married couples. Under California law, domestic violence can take place among “intimate partners,” which include:

  • Spouses and ex-spouses
  • A couple living together
  • Those who are engaged or formerly engaged
  • Current or former girlfriends and boyfriends
  • Domestic partners
  • The other parent of a child

The most common California domestic violence charges are either domestic battery or corporal injury.

Domestic Battery: Charges of domestic battery can be levied when the other person isn’t injured. Simply using force or being violent to another person is enough to warrant domestic battery charges. For example, let’s say that Brittany and Hank are having an argument and Hank pushes Brittany away. Even though Brittany isn’t injured, Hank can still be charged with domestic battery.

In order to prove domestic battery, the prosecutor must demonstrate that Hank intentionally pushed Brittany. Even if Hank doesn’t push Brittany, but instead pokes her with a pair of kitchen tongs, that can result in domestic battery charges. In other words, Hank can touch Brittany with an object, and even though Brittany isn’t injured, Hank can still be charged with domestic battery. It’s important to note that, even if Brittany recants or decides not to follow through, the prosecutor can still pursue charges against Hank.

In Alameda County and the rest of California, domestic battery is a misdemeanor. A conviction can result in a jail sentence of up to one year and a maximum fine of $2,000. However, with the help of an Alameda County domestic violence attorney, you can fight domestic battery charges. Your attorney can argue, for example, that you acted in self-defense, that the touch was accidental, or that you were accused because your partner is attempting to get revenge. If your Oakland domestic violence lawyer is able to convince the prosecutor that the charges are spurious, then the prosecutor may drop the charges.

If you are convicted of domestic battery, your attorney can advocate for a suspended sentence or for probation instead of jail time. If probation is granted, you will be required to complete a batterers’ treatment program. You may also be required to make payments to a battered women’s shelter instead of paying a fine, and to reimburse the other person for the cost of counseling.

If you have previously been convicted of domestic battery and receive probation or a suspended sentence, there is a mandatory minimum sentence of 48 hours in jail. Your Alameda County domestic violence attorney can urge the judge not to impose the jail sentence and instead move straight to probation.

A domestic battery conviction impacts your gun rights in California. A conviction for this misdemeanor comes with a ten-year ban on owning or possessing a gun. While it’s possible to restore gun rights following a conviction of some felonies and other misdemeanors, a domestic violence conviction precludes restoration of your gun rights.

In addition, federal law always trumps state law. Under federal law, someone who is convicted of a “misdemeanor crime of domestic violence” (MCDV) is stripped of their gun rights for life.

Corporal Injury: Charges of corporal injury are levied when the alleged victim has been injured. They’re similar to the lesser charges of domestic battery, in that the action must be willful – as opposed to accidental. The most significant difference is that the force results in an injury. Using the above example, if Hank pushes Brittany away during their argument and Brittany slams into the china cabinet and is cut by the shattered glass, then Hank can be charged with corporal injury resulting in a traumatic condition. The same holds true if Hank grabs Brittany and leaves a bruise, or holds the kitchen tongs across her neck and restricts her breathing.

In order to convict Hank, the Alameda County prosecutor must prove that his actions were purposeful, that Brittany’s injury was caused by Hank’s actions. The prosecutor has to connect the dots between Hank touching Brittany and Brittany’s injury, proving that Hank’s actions are the only possible cause of the injury. As with domestic battery, the prosecutor can press charges even if Brittany wants to back out.

In California, corporal injury is a wobbler, meaning that it can be charged as either a misdemeanor or a felony. A felony charge is more likely if Hank has prior domestic violence convictions or if Brittany’s injuries are serious. A misdemeanor charge is more likely if Brittany’s injuries are minor or if Hank doesn’t have a criminal history.

If you’ve been charged with corporal injury, you need the help of an Alameda County domestic violence attorney. In fact, getting an attorney should be the first step that you take. The stakes are astronomically high. Your Oakland domestic violence lawyer can negotiate with the prosecutor to have the charges reduced to domestic battery, or to have felony corporal injury charges reduced to misdemeanor charges. If that isn’t possible, your attorney can defend you at trial, arguing that you were acting either in self-defense or that you were defending someone else; that you didn’t intentionally injure the other person; that you are actually the victim of domestic violence; or that your accuser is acting out of jealousy or revenge.

A felony conviction for corporal injury can result in up to two, three, or four years in prison, as well as a fine of up to $6,000. A misdemeanor conviction can result in up to one year in county jail and a similar fine. If you have one or more previous domestic violence convictions, both the potential time incarcerated and fine increase. In addition, there is mandatory jail time for those who have previous convictions.

It’s important to note that, even if the case against you is solid, your Alameda County domestic violence attorney can work to dramatically improve the outcome of your case. For example, they can advocate for probation instead of jail or prison time. A misdemeanor conviction can lead to informal probation, making payments to a battered women’s shelter, and paying for counseling costs. A felony conviction can result in formal probation, as well as shelter and counseling payments.

If you’re convicted of corporal injury, you lose your gun rights for life. It doesn’t matter whether you are convicted of misdemeanor or felony corporal injury.

Other Domestic Violence Laws: There are other charges that can accompany a charge of domestic battery or corporal injury. If children are in the house, charges can include child abuse, child endangerment, and child neglect or failure to provide care. If someone over 65 is involved, the charges might include elder abuse. Depending on the circumstances of the case, charges of criminal threats, stalking, or aggravated trespass might be levied. Charges of online harassment, such as revenge porn or posting harmful information, can also be brought.

As previously stated, federal law takes precedence over state law. If you are convicted of a misdemeanor domestic violence charge that didn’t involve the use or attempted use of force, and that didn’t involve threatening to use a deadly weapon, it is possible that your gun rights aren’t forfeited for life under federal law. In other words, after adhering to California’s ten-year ban on gun ownership and possession, your gun rights may be restored. Your Alameda County domestic violence attorney can guide you through the legal intricacies of whether or not your gun rights can be restored.

Your California Gun Rights and Domestic Violence Restraining Orders

If you are arrested for domestic violence, the police officer responding to the call can request a type of restraining order called an Emergency Protective Order. An EPO is a stopgap measure that lasts for up to seven days, or until your accuser files for a Temporary Restraining Order (TRO). If you are subject to an EPO or a TRO, you are not allowed to possess or buy a firearm.

In addition, an officer from the Oakland Police Department or Alameda County Sheriff’s Office is required by law to confiscate any guns that are in plain sight, that are found in the course of a lawful search, or that were allegedly used in the domestic violence incident. The law enforcement agency will hold the guns until your case is resolved. If your guns are lawful and your Oakland domestic violence attorney is successful in having the charges dropped or having your case result in an acquittal, then you’ll get your guns back. If you are in illegal possession of the guns or if you’re convicted, then your guns will likely be destroyed.

The Implications of a Ban on Gun Ownership or Possession

If your California gun rights have been taken away as the result of a domestic violence conviction, you face several requirements. First, the judge will tell you that you are not allowed to own, purchase, receive, or possess any firearms, ammunition, clips, or magazines.

Next, you’ll be given a “Prohibited Persons Relinquishment Form” from the California Department of Justice and Bureau of Firearms. That form requires you to list each gun you own by:

  • Type
  • Serial number
  • Make
  • Model
  • Caliber
  • Color
  • Origin
  • Barrel length
  • Identification marks
  • Location of firearm

The form also requires you to name someone else to whom you give authorization to transfer or dispose of your guns. That person – called a designee – can be a law enforcement agency or a consenting third party who is allowed to possess firearms. The third party can, for example, be a relative or friend. Whichever you choose, they are responsible for surrendering your guns to a law enforcement agency, selling them to a licensed dealer, or transferring them for storage to a firearms dealer.

If you aren’t in jail, the person you designate has to surrender your guns within five days of your conviction. If you are in jail, then the person you designate has to dispose of your guns within 14 days of your conviction. Once your guns are turned in, the person should get a disposition receipt.

The Key to Preserving Your Gun Rights

If you have been charged with a domestic violence crime, the best way to preserve your gun rights is to retain an experienced Oakland domestic violence attorney. That’s because your Alameda County domestic violence lawyer understands the legal system and can leverage their knowledge to prevent a domestic violence conviction.

There are a number of ways in which your attorney can help to preserve your gun rights. They listen as you explain what happened, carefully review all of the evidence against you, and delve into the possible motivations of your accuser. Next, they develop a defense strategy that challenges the veracity of the case against you and approach the prosecutor about dropping the charges.

If the evidence makes it impossible to have the charges dropped, then your attorney attempts to negotiate a lesser charge. A charge of trespass or simple battery, for example, can allow you to retain your gun rights. In contrast, a misdemeanor domestic battery conviction prevents you from owning or possessing firearms for ten years.

The bottom line? If you’ve been charged with domestic violence, you need Silver Law Firm. Our Oakland domestic violence attorneys take pride in obtaining the best possible outcome for each client’s case. Remember, though, that time is of the essence. Call today for a free, no-obligation consultation.



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