Felony Gun Charge, PC § 12025(a)(2), 17(b), 1203.43 Granted

More than 15 years ago, in 2008, our client was charged with violating two counts of Penal Code § 12025(a)(2), both as felonies, after dozens of Long Beach Police Officers stormed a “plate sale” dinner following a memorial service to raise money for the family of eighteen-year old who had been murdered in a drive-by shooting.

The fund raiser was being held at the home of our client’s aunt in Long Beach. Our client knew the decedent’s older brother from playing high school football together, so in respect to and in support of the family, he attended the gathering.

At the time, our client was 20 years old. He had no prior criminal history.

The home was suspected of being a hangout for a criminal street gang, whose name will not be included in this summary. The charges against our client included a Penal Code § 186.22(b)(1)(A) criminal street gang sentence enhancement.

Earlier in the afternoon, as the dinner was being set up, a Long Beach Police Officer drove by the house and pulled over his car to the curb. A man setting up tables and chairs looked over at the officer and said, “Good afternoon, officer.”

The officer replied, “Fuck you!” and then drove off, only to return with approximately two dozen other officers to break up the dinner, search everyone present (including the women and young children present) and search the home. The police report stated seven or eight police cars came to the scene.

The purported reason for massive police action was a violation of Long Beach Municipal Code § 9.22.010, “public consumption of alcohol,” which officers suspected after observing “10 to 15 Samoan and Black subjects loitering in front of the residence and on the driveway. . . several men were sitting in folding chairs in a semi-circle. . . Open cans of beer were visible. No one was on the sidewalk, but they were near it.”

Our client was not consuming alcohol, as he was under age.

Three people were arrested, one being our client, after officers patted him down “for officer safety” and found he had a loaded firearm in his pocket. Two others were arrested for the same charge.

No drugs, drug paraphernalia, counterfeit money, or stolen property or other evidence of a crime was found. No one was injured or medically treated.

During the pendency of the case, the People’s only offer for our client was sixteen months in state prison. Our client’s attorney counter-offered for a probationary sentence. The People rejected this counteroffer.In considering this, our client’s attorney recommended that our client plead in the open to Judge Pierce. Our client agreed and did so. Judge Pierce then sentenced our client to 16 months in state prison on the § 12025 count and then added a consecutive 24 months for a 186.22(b) gang enhancement allegation. Our client then served approximately two years in state prison before being released.

Since leaving prison, our client has suffered no convictions or arrests. He has been a responsible, conscientious citizen since that time to the present. He graduated from Los Angeles Trade Tech and earned a certificate of achievement from Long Beach City College, as well as becoming a Class A commercial driver with a Hazardous Materials endorsement and receiving a TWIC card. He married and became the father of two girls, ages eight and one in 2023.

Our client wanted to leave Long Beach to work on the docks in Honolulu, but was acutely aware that while the conviction in this case remains on his record, as a felony no less, he would continue to be stigmatized as a felon.

Since his conviction, Assembly Bill (AB) No. 333 (raising the amount of evidence required to prove a criminal street gang enhancement), Assembly Bill No. 109 (allowing many non-violent and non-serious felonies to be served in county jail instead of state prison) and Penal Code 1203.43 (allowing expungement of certain convictions served in state prison) become the law.

The gang enhancement in this case would not be legally supported in this case under the narrowing of 186.22 brought on the AB 333. Furthermore, our client’s prison sentence would have been served in county jail under AB 109, making him eligible for relief under Penal Code § 1203.42.

Our client then called up Greg Hill and explained his ambition of working in Hawaii, but knowing that such felonies on his record would most likely bar him. He explained the underlying facts of his case and Greg explained that he could file a motion for reduction of the felonies to a misdemeanor under Penal Code § 17(b)(3) and explain how AB 333, AB 109 and Penal Code 1203.42 also applied to the facts.

More fundamentally, the conduct at issue was misdemeanor in character, not felonious in nature, making the conviction eligible for reduction under Penal Code § 17(b)(3).

Our office then prepared, filed and served the motion to reduce the two felony convictions to a misdemeanor under Penal Code § 17(b)(3) and request for dismissal under Penal Code § 1203.43.

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