In 2013, Franklin Bastidas was arrested and charged with possession of a cocaine base for sale (Health and Safety Code § 11351.5) and possession of heroin for sale (Health & Safety Code § 11351). Both of these charges were felonies.
The Reader’s Digest Version: If one is successful in having a felony reduced to a misdemeanor under Prop 47, one cannot then own a firearm. Prop 47, at Penal Code § 1170.18(k), states that the crime “shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm…”
Later in 2013, he reached a plea bargain wherein he pled no contest to possession of a controlled substance (Health and Safety Code § 11350(b)) as a lesser-included offense to count two (regarding sales of heroin). The charge as to sales of cocaine was then dismissed. This took place in Alameda County.
Bastidas was then placed on formal probation for five years.
In November, 2014, Proposition 47 was passed, making certain drug and theft-released offenses misdemeanors, unless the defendant was ineligible due to being a 290 registrant or due to having certain prior “super strike” convictions. Bastidas’ felony conviction for violating Health and Safety Code § 11350(b) was eligible for resentencing and Mr. Bastidas was not disqualified due to a 290 registration obligation or a “super strike” conviction.
In September, 2015, the District Attorney filed a petition to revoke probation when Bastidas was arrested for possession of a controlled substance and paraphernalia.
In response, Bastidas requested that the judge reduce his felony conviction for § 11350(b) to a misdemeanor.
The judge granted the petition, but cautioned Bastidas that he could not own, use or possess firearms under Penal Code § 1170.18(k).
Bastidas appealed this order regarding firearms to the First Appellate District in San Francisco, arguing that the firearm restriction was improper because he was not “serving a sentence” since he was on probation and not in custody.
The First Appellate District disagreed, citing to People v. Garcia
(2016) 245 Cal. App. 4th 555. Garcia
held that “an order granting probation and suspending imposition of a sentence is a form of sentencing,” quoting In re DeLong
(2001) 93 Cal. App. 4th 562, 571. Garcia also quoted People v. Mendoza
(2003) 106 Cal. App. 4th 1030, 1034, where the court used the phrase “sentence of probation” in reference to Proposition 36.
Moreover, Proposition 47, at Penal Code § 1170.18(k), provides that “[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm…”
The First Appellate District explained subdivision (k) was a way of retaining the firearm prohibition for those sentenced before Prop 47 was enacted as a way to preserve the prosecution’s expectations about restricting firearms from those guilty of committing certain crimes.
Thus, the First Appellate District affirmed the trial court. While Mr. Bastidas was successful in having his felony possession for sale negotiated to a felony possession only, and then re designated a misdemeanor, he did not succeed in having his firearm rights restored, as Penal Code § 1170.18(k), in Prop 47, specifically bars this.
We certainly do not like this ruling, but appreciate Bastidas’ attempt to have § 1170.18(k) declared void. Indeed, now if someone is charged with and convicted of the same thing as he was, Prop 47 would not be needed to reduce the offense. Thus, the conviction would be a misdemeanor and not subject to the firearm restriction. In other words, two people convicted of Health and Safety Code § 11350(b) will be treated differently if one is convicted in 2013 and 2017. We think the timing of the conviction should have no affect on one’s constitutional right to bear arms under the Second Amendment.
For more information about owning a firearm after a conviction, please click on the following articles:
- Federal Lifetime Ban on Owning a Firearm Applies After Misdemeanor Conviction for Domestic Violence under California Law
- Medical Marijuana Cardholder Now Cannot Buy a Gun?
- Restoring the Right to Own a Firearm After Being Convicted in California of a Crime That Triggers a Ten-Year Ban Is No Easy Task