Unlawful Possession of Firearm Without Proof of Competency

Our client, age 37, was an armed security guard and had been for many years. One day, he was involved in an argument with a co-worker over a trivial matter and insulted that co-worker. The co-worker then decided to get even by photoshopping a photo of our client taking his weapon out of his holster when and where it was prohibited. He then took the photograph to his supervisor and told him our client had made suicidal comments.

The supervisor called the police, who immediately came to our client’s workplace and took our client straight to a mental hospital for observation. The hospital then classified our client as a danger to himself or others under Welfare & Institutions Code § 8103(i).

In less than twenty-four hours, our client was released and, upon discharge from the hospital, signed Form 4009b that gave our client notice that he had to transfer ownership or destroy any firearms he had. Upon release from the hospital, our client told hospital staff that he had three firearms that he would take care of as instructed.

Our client had three pistols at home (a Glock Model 22, 0.40 cal.; a Kimber 9 mm.; and a CZ (Ceska Zbrojovka Fox) 97 .45 cal.), as well as ammunition, several speed loaders, and ten magazines.

One of the forms that the hospital gave our client was a BOF (Bureau of Firearms) Form 110 Power of Attorney for Firearm Relinquishment, Sale or Transfer for Storage. Our client immediately filled it out and gave his wife the power of attorney to transfer his firearms to a storage facility. In other words, our client had the proper sense of urgency and responsibility to comply with any restrictions on his ownership, possession or access to his firearms as a result of the 5150 hold based on lies and fabricated evidence. The date on the form was the date of our client’s release from the hospital.

Then a problem arose. Our client and his wife thought they had a few days to find a place to store the weapons and ammunition. They did not have such time. They needed to move the firearms out of the family home or at least out of access to our client immediately. To do this, they needed to, at the least, tender them (unloaded) to law enforcement for storage, not allow the firearms and ammunition to remain accessible to our client at his home.

As luck would have it, law enforcement then applied for and received a search warrant to search our client’s home for any weapons. Three days after our client was released from the hospital, six Bureau of Firearms officers arrived at our client’s home in Chino with the warrant.

Our client allowed the officers into his house and cooperated fully, showing the officers where the firearms were and explaining that he had signed the BOF Form 110 Power of Attorney, but had not yet found a storage facility for the three weapons.

The officers took custody of the weapons, the ten magazines, the two speed loaders and “3,090 rounds of ammunition of miscellaneous caliber.” They also arrested our client.

When our client was released, they had him sign a promise to appear in the Rancho Cucamonga branch of the San Bernardino Superior Court.

Once the client got home, he called Greg Hill and described what had just happened. Greg explained that he expected the California Attorney General’s Office to handle the case, not the San Bernardino District Attorney’s Office. Greg also explained that the most likely charge would be for a violation of Welfare & Institutions Code § 8103(i), “Unlawful Possession of a Firearm without a Competency Certificate.” Greg said he thought there would be three charges, one for each gun.

Greg explained that the charge was a “wobbler,” meaning it could be filed as a felony or a misdemeanor. Greg said he anticipated the charge would be filed as a misdemeanor because the client had executed a transfer document for the firearms and seemed to be operating in good faith and cooperative. Moreover, the client had no prior criminal history.

Greg explained that probation would be most likely, although if the case was filed as a misdemeanor, it could be referred to judicial diversion. If referred to judicial diversion and dismissed at the end of the diversion period, our client would avoid the ten-year ban on owning a firearm under California law.

The client asked if he would get his firearms back at the end of probation and Greg said he could certainly request this if he had his firearm rights restored under Welfare & Institutions Code § 8103(f) (to shorten the five year ban under 5150), but often, in such a case, the prosecutor will usually insist that the weapons are destroyed (as well as the ammunition).

Our office called the court about a week prior and found out that the case was filed as a felony, so the client appeared in court with Greg at the arraignment.

After the arraignment, Greg was able to persuade the Assistant Attorney General to reduce the felony to a misdemeanor and offer a resolution with the client performing 80 hours of community service with just one year of summary, or informal probation. The firearms, however, would be destroyed.

The prosecutor refused to reduce the felony to a misdemeanor unless our client then entered a plea to the misdemeanor. In other words, judicial diversion would not be possible.

Recognizing that this resolution really was the best outcome (and that trial would be futile), our client accepted this resolution, happy to avoid a felony, but still glum that he faced a ban on owning firearms until either a petition for restoration of such rights was granted or he waited ten years for the ban triggered by the conviction expires.