Domestic Violence with Firearms in California
If convicted of domestic violence in Los Angeles, you will typically face harsh consequences. Depending on the specific details, this could include some jail time and you could lose your legal right to own or possess a firearm.
In some domestic violence incidents where some type of deadly item was involved, you could face felony charges of violating California Penal Code 245(a)(1), assault with a deadly weapon. If convicted, there are even more harsh penalties and potentially a “strike” on your record under California's Three Strike Law.
If a firearm was used in a domestic violence incident, then you could also face charges of violating Penal Code 245(a)(2), assault with a firearm. It's worth noting the firearm doesn't have to be discharged in to face charges under this statute.
If you just point the weapon at a spouse, ex-spouse, cohabitant, or a member of your family during a domestic dispute could result in felony criminal charges.
In domestic violence incidents where a firearm wasn't loaded, then you could be charged with violating California Penal Code 417, brandishing a weapon, which is another California “wobbler” crime that can be filed by the prosecutor as either misdemeanor or felony offense.
If your victim was a member of your family or intimate partner and the judge imposed probation, then you will have mandatory domestic violence sentencing requirements defined under Penal Code 1203.097.
In order to provide more useful information about firearms and domestic violence, our criminal defense lawyers are providing a review below.
Assault with a Firearm – Penal Code 245(a)(2)
If convicted of assault with a firearm in violation of California Penal Code 245(a)(2), and the victim was an intimate partner, you will most likely be placed on probation, meaning there are mandatory terms that must be followed as defined under Penal Code 1203.097.
The terms will usually involve the judge issuing a domestic violence restraining order against you that prohibits any type of contact with the victim.
There are situations where the judge will reduce the RO to a level one protective order that allows peaceful contact with the victim.
Additionally, the terms of probation will include a mandatory requirement that you complete as 52-week batterer's intervention program, fines, and community service.
In some cases, the judge will order other conditions of probation at sentencing, which might include counselling and even some jail time.
Firearm Ban with a Domestic Violence Conviction
Once you are convicted of domestic violence, you are prohibited from owning or possessing a firearm in California. Assembly Bill 3129 amended Penal Code 29805, and makes it illegal for anyone who was convicted of misdemeanor domestic violence for having possession of a firearm.
Also under California law, the court can prohibit you from possessing or purchasing a firearm even in a situation where you have only been charged with a domestic violence crime, but not convicted.
Under federal laws, you are prohibited from possession or owning a firearm regardless if it was a misdemeanor or felony domestic violence case.
Additionally, If the judge imposed specific court orders, you will be prohibited from possessing, buying, purchasing or receiving ammunition while the order remains in effect:
- Civil harassment restraining order
- Domestic violence restraining or protective order
- Workplace or private school restraining order
- Protective order for elderly
- Emergency protective order related to stalking
It's also possible for anyone can seek a domestic violence protective order that would prohibit buying or possessing a firearm if the victim was a spouse, ex-spouse, cohabitant, or family member.
Relinquishing Firearms in Domestic Violence Cases
Once you have been served with a domestic violence protective order, you are required to relinquish your firearms by turning them in to law enforcement or sell them to a to gun dealer within 24 hours.
After they are turned in, they must issue a receipt, which you must file with both the court and the law enforcement agency who served you with the California protective order, within 48 hours. If you don't follow these terms, then it will be considered a a violation of the protective order.
After being convicted of a domestic violence crime, you are required to provide documented proof the firearm was sold or transferred within a certain time frame.
The criminal courts and probation department also required verification that you are in compliance with these terms before there is any final resolution on your case. In situations where you fail to comply with these terms, the court could issue a search warrant to recover unlawfully retained firearms.
Reporting to Law Enforcement and Removal of Firearms
California law enforcement agencies have established a system to record calls for domestic violence incidents that include incident reports on whether a weapon was involved. In a situation where a deadly weapon was discovered by a police at the scene of a domestic violence incident, then the weapon could be confiscated.
All police officers at the scene of an alleged domestic violence incident involving any type of threats or assault have to seize temporary custody of any firearm in plain view. They will also seize any weapons that are discovered during a consensual or lawful search that was conducted protect themselves or anyone else at the scene.
Any confiscated firearms are required to be held for at least 48 hours. If the firearm was not kept as evidence for domestic violence charges, or there was no unlawful possession, then it must be made available for pick-up by the owner within 48 hours after it was seized, or as soon as possible.
However, it can't be kept no more than five days after the owner can demonstrate they went through a background check.
If you were accused of committing domestic violence in Los Angeles, our criminal defense attorneys will examine the details of the case and options moving forward. In some case, we can negotiate with the prosecutor for reduced charges or even get the case dropped through prefiling intervention.
Cron, Israels & Stark is a top-ranked criminal defense law firm with a team of highly skilled lawyers that have decades of combined experience and a record of success.
Our main office is located in the West Los Angeles area at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We are also located near the Santa Monica Pier at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact our firm for a free case consultation at (424) 372-3112.