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2011 Plea to H & S 11350(a), Prop 36, Vacated under 1203.43
In 2010, our client, then 20 years old, was arrested by the Downey Police Department, on suspicion of violating Health & Safety Code § 11350(a), possession of a controlled substance. He had been pulled over for speeding and when he pulled out his wallet to give police his driver’s license, a baggy with three or four grams of cocaine fell out of his pocket.
About six months later, in May 2011, he pled guilty to one count of violating Health & Safety Code § 11350(a), possession of a controlled substance pursuant to Penal Code § 1210 (“Proposition 36”). His public defender never told him his guilty plea would have any adverse consequences later once he finished Prop 36 and the case was dismissed. He just had to attend forty Narcotics Anonymous (NA) meetings
Just two months later, in July 2011, the judge graciously terminated his probation under Prop 36. At that time, his case had been transferred to Norwalk for Prop 36 supervision.
Since his case was dismissed, our client led a stable, responsible lifestyle. He married and had three children. He became an accountant, working for the family’s steel company.
In 2024, he was 34 years old and thinking of law school. However, he knew his plea to the felony may be a barrier, so he called Greg Hill & Associates to ask about reducing the felony to a misdemeanor. Greg explained that he had filed perhaps ten motions nunc pro tunc to reclassify a felony Health & Safety Code § 11350 conviction as a misdemeanor under Penal Code § 17(b)(3), but cautioned that when he had lost the motion, and the judge explained why, Greg realized that such a motion really was not a good idea.
What had happened in about three such motions was that the judge explained that when our client entered the guilty plea, in 2011, for example, Health & Safety Code § 11350 was only a felony. In other words, it was a “straight felony.” So, to ask a judge to reclassify such a motion back in 2011 was impossible because it could not be reclassified as a misdemeanor then.
Nonetheless, Greg had filed this motion and it had been granted perhaps eight times out of ten tries. Greg explained this to the client, describing that some judges had even recognized this issue and granted the motion anyways. Most, however, had not understood the issue and granted the motion.
The client agreed to retain Greg to file such a motion and our office did so.
The judge assigned, however, recognized the legal problem and denied the motion.
The client and Greg then discussed filing a motion to vacate the conviction under Penal Code § 1203.43. This was the client’s suggestion. Greg responded that 1203.43 only applied to cases resolved through PC 1000, not Prop 36, but that many judges believed that 1203.43 applied to both PC 1000 and Prop 36.
Again, Greg cautioned the client that he could certainly file the motion, but the judge might correctly understand Penal Code § 1203.43 and deny the motion.
The client agreed to again file a motion that a judge might deny if she understood the law.
Greg then filed the petition for dismissal under Penal Code § 1203.43. This time, however, the same judge granted the petition. The client was very happy, as his guilty plea was vacated.
Greg was not able to know if the judge understood the flawed petition, but granted it anyway because the prosecutor did not object, or if the judge simply did not understand Penal Code § 1203.43. Regardless, the felony plea was withdrawn and the same judge reduced the felony to a misdemeanor under Prop 47 (Penal Code § 1170.18).
About six months later, in May 2011, he pled guilty to one count of violating Health & Safety Code § 11350(a), possession of a controlled substance pursuant to Penal Code § 1210 (“Proposition 36”). His public defender never told him his guilty plea would have any adverse consequences later once he finished Prop 36 and the case was dismissed. He just had to attend forty Narcotics Anonymous (NA) meetings
Just two months later, in July 2011, the judge graciously terminated his probation under Prop 36. At that time, his case had been transferred to Norwalk for Prop 36 supervision.
Since his case was dismissed, our client led a stable, responsible lifestyle. He married and had three children. He became an accountant, working for the family’s steel company.
In 2024, he was 34 years old and thinking of law school. However, he knew his plea to the felony may be a barrier, so he called Greg Hill & Associates to ask about reducing the felony to a misdemeanor. Greg explained that he had filed perhaps ten motions nunc pro tunc to reclassify a felony Health & Safety Code § 11350 conviction as a misdemeanor under Penal Code § 17(b)(3), but cautioned that when he had lost the motion, and the judge explained why, Greg realized that such a motion really was not a good idea.
What had happened in about three such motions was that the judge explained that when our client entered the guilty plea, in 2011, for example, Health & Safety Code § 11350 was only a felony. In other words, it was a “straight felony.” So, to ask a judge to reclassify such a motion back in 2011 was impossible because it could not be reclassified as a misdemeanor then.
Nonetheless, Greg had filed this motion and it had been granted perhaps eight times out of ten tries. Greg explained this to the client, describing that some judges had even recognized this issue and granted the motion anyways. Most, however, had not understood the issue and granted the motion.
The client agreed to retain Greg to file such a motion and our office did so.
The judge assigned, however, recognized the legal problem and denied the motion.
The client and Greg then discussed filing a motion to vacate the conviction under Penal Code § 1203.43. This was the client’s suggestion. Greg responded that 1203.43 only applied to cases resolved through PC 1000, not Prop 36, but that many judges believed that 1203.43 applied to both PC 1000 and Prop 36.
Again, Greg cautioned the client that he could certainly file the motion, but the judge might correctly understand Penal Code § 1203.43 and deny the motion.
The client agreed to again file a motion that a judge might deny if she understood the law.
Greg then filed the petition for dismissal under Penal Code § 1203.43. This time, however, the same judge granted the petition. The client was very happy, as his guilty plea was vacated.
Greg was not able to know if the judge understood the flawed petition, but granted it anyway because the prosecutor did not object, or if the judge simply did not understand Penal Code § 1203.43. Regardless, the felony plea was withdrawn and the same judge reduced the felony to a misdemeanor under Prop 47 (Penal Code § 1170.18).
We present this summary to exemplify how judges are simply people. Many judges know the law especially well, including obscure nuances, particularly in felony murder and felony sex offenses, but do not have much familiarity with post-conviction laws. We literally filed two motions with the same judge, both of which should have been denied, but the client understood this in advance. We took a chance, some might say being a bit too aggressive, but the client was rewarded.
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