Los Angeles Criminal Defense Attorney

Posts Tagged ‘felony’

Getting Your Gun Rights Back After A Felony

Wednesday, May 30th, 2012

As a Los Angeles criminal defense lawyer, I know that federal law makes it very difficult for a convicted felon to possess or use a fireman.

That’s what former Congressman Randy “Duke” Cunningham found out the hard way.

Mr. Cunningham is not a sympathetic figure.  He was elected to Congress 8 times.  For some, that by itself is reason not to like him.  But what really sets Mr. Cunningham apart is that in 2006 he was convicted in federal court of accepting $2.4 million in bribes and evading more than $ 1 million in taxes.  For his actions, he received an eight year sentence, which he has been serving in federal prison in Arizona.  It is hard to overstate the extent to which Mr. Cunningham ruined his reputation.  One book that chronicled his demise refers to him as “History’s Most Corrupt Congressman.”

Mr. Cunningham recently asked the judge that sentenced him to restore his right to carry and use a gun. He wants to enter shooting contests and hunt after he is released from prison.

In a letter to District Judge Larry Burns, Cunningham said that he will be 71 when he’s released from prison in December to a halfway house in Little Rock, Ark., and that he has cancer. As a convicted felon, he is barred from possessing firearms.

“I flew aircraft that could disintegrate your building with a half-second burst and now can’t carry a .22-caliber,” wrote Cunningham, a decorated Navy pilot in the Vietnam war. “Pls help me your honor.  I don’t have much left but this little thing is a big thing to me.”

There is every reason to believe that Mr. Cunningham is not likely to use a gun to commit a crime.  I take him at his word when he says he will live quietly in Arkansas with his 99 year-old mother.

But that is not how federal law treats convicted felons who want to get their gun rights back.  Judge Burns responded to Cunningham’s letter by noting that he lacks authority to restore his gun rights, even though the United Supreme Court has recognized that the Second Amendment confers a personal right to bear arms.

I haven’t seen the text of Judge Burns’ letter, but his interpretation of federal law appears to be sound.  Specifically, 18 USC 922 (g)(1) makes it pretty clear that if you are convicted of a federal felony, no guns for you.

18 U.S.C. § 922(g) prohibits specified categories of persons from shipping, transporting, or receiving any firearm or ammunition.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person–

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

Courts have interpreted this language to mean that you can be denied the right to have a gun even if you served less than a year in federal prison.  Your gun rights will be denied if you were convicted of a felony that carries a maximum sentence of a year or more, even if you actually served less than a year.  Given that a vast array of federal crimes are subject to prison sentences that exceed one year, in practice, a majority of people who are convicted of federal felonies are permanently deprived of their gun rights.

My guess is that the many people aren’t troubled by this deprivation of a constitutional right.  But they should be.  Many felonies, such as those that Mr. Cunningham committed, did not involve violence or even the threat of violence.  So why should someone who serves his or her time in prison forfeit their gun rights forever?

Still unconvinced?

Would your opinion change if the constitutional right in question was not the right to carry a gun but the right to vote?

The unfortunate fact is that many thousands of people have lost their right to vote because they were once convicted of a felony.

That is too high a penalty.  Mr. Cunningham may have set a new standard for political corruption, but he and other felons who have served their time should not be permanently deprived of their constitutional rights.


County Jail Felony Sentence is Not Probation

Sunday, October 23rd, 2011

There are many questions about California’s criminal justice realignment plan.  The cornerstone of this plan is the restructuring of California’s sentencing laws.  As of October 1, 2011, most “non-strike” offenses will be served in county jail rather than state prison.  However, people should not mistake these “county jail felonies” for probationary sentences. Here’s an example:

Let’s say someone is convicted of possession for sale of methamphetamine in violation of Health and Safety Code Section 11378.  Under realignment, there are two sentencing options:  1) A sentence of 16 months, two years, or three years in county jail OR 2) Probation which may include time in the county jail.

This distinction between the two options is important.  Until now, county time on a felony was often the part of a probationary sentence, now both a sentence to a county jail felony and a probationary sentence can both include county jail time.  However, if a person is sentenced to the county jail felony and not probation, he or she will suffer many of the same collateral consequences of being sent to state prison. The two most significant of these consequences is that a county jail felony counts as a “state prison prior” in any future felony cases and county jail felonies are not eligible for dismissal under California Penal Code 1203.4 (commonly called “expungement”).

Defendants and criminal defense lawyers must be very careful to understand that just because someone is sentenced to county jail, the sentence is not probation unless the judge specifically designates the county time as a term of the probationary sentence.

If you or a loved one have questions about criminal justice realignment call a qualified criminal defense attorney, Jerod Gunsberg is available for consultations at (310) 210-0744.


Johannes Mehserle Sentence in Oscar Grant Shooting Explained

Sunday, November 7th, 2010

If you are reading this, you are likely aware that Los Angeles County Superior Court Judge Robert Perry sentenced former BART police officer Johannes Meshserle to two years in a California state prison for the killing of Oscar Grant on an Oakland train platform.  What follows is a simple factual explanation of how this sentence was arrived at under California law.   This is not an editorial on whether we believe this is the right sentence or wrong sentence, there’s plenty of other people out there doing that.  These are just facts as to how and why the sentence is what it is.

The Conviction

In criminal trials, juries don’t decide penalties they only decide guilt or innocence (there are exceptions, like in death penalty cases). In fact, a criminal defense attorney is not supposed to mention sentencing or punishment to the jury at all during trial.  If a defendant is convicted, the attorneys usually return to court at a future date to file briefs and make arguments as to the appropriate sentence.  The judge then applies California’s determinate sentencing law to trial evidence, the defendant’s criminal history, and the attorney’s arguments when deciding the proper sentence.  In certain situations, the judge does have the discretion to set aside the jury verdict and impose a sentence he or she believes to be in the interests of justice.  The defense may also file a motion asking the judge to order a new trial with a new jury.

In the Mehserle case, a Los Angeles jury convicted Mehserle of involuntary manslaughter in violation of California Penal Code Section 192(b), the jury found that even though Mesherle acted “without malice” he acted “without due caution and circumspection” which is far different than voluntary manslaughter, in which the jury would be required to find that Mehserle acted “without malice” but acted a “upon a sudden quarrel of heat of passion” (for those playing along at home, check out California Penal Code Section 192(a)).  The jury also found that the allegation that Mesherle personally used a firearm in the commission of the offense to be “true” (California Penal Code 120225(a)).

The Potential Sentence and The Actual Sentence

A conviction of involuntary manslaughter carries a sentence that can range from probation to a state prison sentence of two, three, or four years.  Since Judge Perry denied the defense’s request for probation, Judge Perry then had to decide whether Mehserle would get two, three, or four years in state prison.  Under California’s determinate sentencing laws, the “presumptive” sentence is the mid-term, which in this case is three years.  A judge may consider mitigating factors in favor of low term, or aggravating factors in favor of high term.

Here, Judge Perry looked at numerous factors including video evidence presented at trial in which Mesherle appeared shocked and deeply distressed immediately after realizing he had used his firearm and not his taser and shot Oscar Grant in the back.  There were two witnesses who both said that they heard Mehserle threaten to use his taser on Mr. Grant immediately before the shooting.  Mehserle took the stand in his own defense and testified that not a day went by when he didn’t think about what he had done to Oscar Grant.   This evidence likely played a large part in convincing the court that this was an accidental shooting which merited the low-term of two years.

As for the ten year enhancement for personal use of a firearm, Judge Perry found that he had made a mistake when instructing the jury on this enhancement.  For a jury to find it “true” that the defendant personally used a firearm in the commission of a crime to be, they must find that the defendant intentionally used the firearm.  Judge Perry did not believe he accurately instructed the jury on this point and felt that had he done so, in light of the evidence presented at trial that this was an accident; any reasonable jury would have decided that this allegation was “not true.”  The 10 year firearm enhancement was then set aside (or dismissed).

Why Mehserle Will Only Serve 7 Months

Under California law, most sentences are served at 50% time.  The exceptions are serious and violent felonies under California’s “three strikes” law in which, depending on the circumstances, prison terms can be doubled and served at 85%.  Involuntary manslaughter is a “serious” felony but not a “violent felony” so it is not a strike, this means that Mehserle will only serve 50% of his time, that means 1 year instead of 2.  At the time of sentencing, Mehserle has been in custody for 146 days, which is credited towards his prison sentence, with the 50% rule this 146 days turns into 292 days credit.  This means that Mehserle will serve somewhere between 7 and 8 months in prison.