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Criminal Defense Attorneys

Alhambra, 17(b)(3) Motion on Criminal Threats Denied

In 2014, our client, then age 51, went to North Dakota to visit family and friends over a three-day weekend.  He went there without his girlfriend, who he left back in the Pasadena area. 

While our client was in North Dakota, his girlfriend grew suspicious that our client was visiting a former girlfriend and that is why he did not invite her to accompany him.  While our client was in North Dakota, his girlfriend in California called him dozens of times, texted him over 100 times and called our client’s sister to ask about our client’s whereabouts and who he was meeting with there.

When our client returned to California, his girlfriend badgered him about not taking her to North Dakota and our client’s denial of meeting his former girlfriend was not well received.

Eventually, the girlfriend in California called the police and lied about our client threatening to kill her and beating her up.  She told the police that our client owned guns and had pointed a loaded gun to her head.  She then hit herself in her lip to cause it to bleed before the police arrived.

Our client was promptly arrested for felony domestic violence and criminal threats.  His three guns were seized and he had to post bail of $50,000 to be released.  Our client denied doing anything all along.

About two months later, he was charged in the Alhambra Superior Court with felony domestic violence (Penal Code § 273.5(a)), felony criminal threats (Penal Code § 422(a)) and using a loaded firearm in the commission of criminal threats (Penal Code § 12022.5(a)).

While our client’s case was pending, his girlfriend recanted her story, but the prosecutor refused to dismiss the case and our client, represented by the public defender, eventually entered a plea to a violation of Penal Code § 422 as a felony (a strike, no less) and admitted the 12022.5(a) gun allegation.

The client was sentenced to 365 days of Los Angeles County Jail and placed on five years of formal probation with an obligation to attend 52 batterers classes and pay $570 in court fees and fines.

The client then had his probation terminated early at the three year mark and had the conviction expunged.
In 2022, however, having a felony conviction on his record was just too much of a stigma for our client.  He called Greg Hill & Associates and asked about reducing the felony to a misdemeanor.

Greg explained that a judge might struggle to grant such a motion because not only was 422 a strike, but our client had admitted the firearm use allegation as well.

The client explained that he had moved back to North Dakota to help with the care of his mother.  He was self-employed as an NDT (nondestructive testing) technician / consultant specializing in testing composite structures using ultrasound, infrared and laser shearography, among other methods.  He had been working in this field for fifteen years, which had involved work in the wind energy and aerospace industries. 

However, the felony conviction in this case barred him from many job opportunities within these industries because much of it involves work on military bases. 

He therefore needed to have the felony reduced to a misdemeanor so he could continue to work and provide for his future financial needs. 

Greg agreed to prepare, file and serve the motion to reclassify the conviction under Penal Code § 17(b)(3), but again cautioned that the gun use admission was going to be a significant hurdle to having the judge grant the motion.

Our office then prepared the motion, with a declaration from our client explaining that the gun use admission was made to avoid state prison and that his girlfriend had recanted her story to the police and district attorney several times, to no avail.

The judge hearing the motion in the Alhambra Courthouse indeed focused on the gun use allegation and denied the motion, explaining he would have granted the motion but for the gun use allegation.

We present this summary to exemplify that not all motions to reclassify are granted on wobbler offenses.  A judge has discretion to deny the motion when the facts are bad, as they certainly were here.

For more information about Penal Code § 17(b), please click on the following articles:
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