Santa Ana, Motion to Reclassify Felony Statutory Rape

The following summary is a cautionary tale to the reader. We find it would be misleading to the reader to suggest that if one hires a private criminal defense attorney, success always follows. In the following case, the motion to reclassify was withdrawn from having a hearing to avoid having it denied. The following summary explains why.

In 2023, our client contacted us and asked about having his felony conviction for statutory rape (Penal Code § 261.5(d)) reduced to a misdemeanor. He explained that in 2019, he was then 23 years old and he met a female, who said she was 21, online and had sexual intercourse with her, but only learned her true age (15) after the two had sex.

Our client explained that he wanted to travel to Canada to meet his wife’s family could not enter Canada with this conviction, but if it was reduced to a misdemeanor, he would be able to do so. He also knew that once the conviction was reduced to a misdemeanor, he would be eligible to have the conviction expunged.

Greg and the client discussed the facts of the case more and what the terms of his punishment were. The client had received three years of probation, which included sexual compulsiveness classes for a year, 364 days in the Riverside County jail and a stay away order from the victim.

After he was released from jail, he had his formal probation transferred to Los Angeles County and then, later, to Orange County, where his probation was terminated after just one year.

The client had been in the Marine Corps as a flight equipment technician at the time of the crime and was discharged with an honorable discharge. Once he finished his jail time, he had found the only job he could get was driving for Uber although he was studying online to get a bachelor’s degree.

Our office then filed the motion to reduce the felony to a misdemeanor in the Santa Ana Superior Court. The motion went through the California Rules of Court, Rule 4.421, titled “Circumstances in Aggravation,” one by one, as well as each of the “Circumstances in Mitigation.” In doing so, we relied greatly upon the client’s memory of the facts of the case because he did not have the police report to show us and he had used the public defender’s office, not a private attorney.

Prior to the hearing on the motion in the Santa Ana Superior Court, the District Attorney had contacted the victim, now age 19, and found out that she was enormously traumatized by the rape and still in counseling. The District Attorney in Orange County also called up the District Attorney in Riverside County who had handled the case and received the police report from him.

At the hearing in Santa Ana, the prosecutor vigorously opposed the motion and recited the following facts in court that our client did not tell us, but should have. Most importantly, the prosecutor explained that the victim told our client she was 15 years old multiple times before they had sex (not after as our client described). Making things worse, our client was arrested when he attempted to meet with the victim a second time “to just fuck and make things right” because during the first meeting, our client’s wife called him on his cell phone and our client could not orgasm.

The prosecutor further explained that after the two had sex in the backseat of the client’s car in an abandoned parking lot and afterwards, the victim cried from shame. Our client drove her home and when she refused to exit the car while crying because she did not want her parents to question her about crying, our client pulled her from his car by her feet. When this happened, our client injured the victim’s back.

While the prosecutor was describing these events, Greg could see that the judge was visibly upset by the facts, although Greg recognized that it merited mention that the victim went to a website, omegle.com, where she agreed to have sex with our client.

However, no matter what mitigation could be argued, the clear impression the prosecutor was creating was fatal for the 17(b)(3) motion to reclassify the felony as a misdemeanor.

Greg therefore decided to withdraw the motion, rather than have the judge deny the motion, which would prejudice our client’s future attempt, if any, to have the same motion granted, perhaps in several years. It was the prudent thing to do under the circumstances and to prevent further harm to the client.

We present this summary to show why it is imperative that the client be fully forthcoming when discussing the facts of a case with one’s attorney.

For more information about Penal Code § 17(b)(3), please click on the following articles: