Long Beach, Motion to Vacate for New Facts, 1473.7(a)(2)

In early 2010, our client, then thirty-eight, kept and cashed a check worth approximately $735 that was erroneously mailed to him.  He was then convicted of felony commercial burglary, Penal Code § 459, for this conduct in the Long Beach Courthouse.  At the time, our client was living in San Pedro.

In 2021, the client, now forty-eight, was arrested on federal charges of trafficking in a controlled substance and conspiracy to traffic controlled substances as part of an interstate narcotic distribution network. 21 United States Code §§ 841(a)(1) and (b)(1)(c) (also known as trafficking and distributing controlled substances, causing death or serious bodily injury to the person who used those drugs). The client was arrested in California and taken to federal jail (actually a county jail) in Ohio.

The client’s father reached out to us to see if we could help reduce some of his son’s felonies to misdemeanors because under U.S. Sentencing Guidelines,   He spoke with Greg Hill, who understood federal sentencing guidelines and cautioned the father that reducing a felony to a misdemeanor may not directly help reduce his son’s Criminal History category, which was at 5, the highest, but the judge was entitled to consider such a reduction as “other relevant conduct.” 

Greg then discussed the criminal convictions in California with the client’s federal criminal defense attorney in Ohio and how reducing certain felonies to misdemeanors could reduce the Client’s criminal history from category 5 to 4, which would result in a federal prison sentence of four to five years less.

Greg then went to the Torrance Courthouse and got the dockets on six cases wherein the client had been convicted.  Greg then discussed these cases with the father.

Many of the convictions were straight felonies that could not be reduced to a misdemeanor. 

However, for the Penal Code § 459 conviction from 2011, discussed above, Greg prepared and filed a motion under Penal Code § 17(b)(3) to reclassify this felony to a misdemeanor.  The judge handling the case in Long Beach graciously granted this request to reclassify the offense “a misdemeanor for all purposes.”  Penal Code § 17(b)(3).  The client’s father was happy.

However, we were not really done.  As it turned out for our client, the “purpose” of the commercial burglary conviction was to be the felony supporting a 2013 felon in possession of a firearm (Penal Code § 29800) conviction.  Our client had no other felony convictions for the 29800 charge to rest upon or be premised on.

Since the felony was no longer a felony (it was a misdemeanor), Greg thought the felon in a possession of a firearm conviction was vulnerable to being vacated.  Greg sensed his legal logic may have been tested by others, as the 29800 charge is quite common, so he called a few local, more experienced attorneys and discussed his motion to vacate.  Each attorney said they had not tried such a motion, but were skeptical the judge would grant the motion.

Greg then explained to the client’s father that such a motion probably would be denied, but Greg had to try. 

Our office thus prepared and filed a Motion to Vacate a Conviction based on new facts under Penal Code § 1473.7(a)(2).  Penal Code § 1473.7(a)(2) gives the court the authority to vacate a conviction when there is “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.”

The motion asked the judge to vacate the client’s 29800 conviction because the legal basis for the conviction no longer exists if “all purposes” under Penal Code § 17(b)(3) includes for 29800 purposes, just as courts will now grant relief under Penal Code § 1203.4a(a) for those who previously served time in prison when the felony is later reduced to a misdemeanor “for all purposes” under Penal Code § 1170.18(f) (“Prop 47”). People v. Erica Khamvongsa (2d App. Dist., 2017) 8 Cal.App.5th 1239; see also Penal Code § 1203.42 (permitting “expungement” of Proposition 64 eligible offenses redesignated as county jail offenses even after defendant served time in prison).  If such a legal basis no longer exists, our client is actually innocent of the charge as a matter of law and the interest of justice requires vacating the conviction.

Our office then filed the motion and a hearing date was assigned.  Greg appeared on the client’s behalf in the Long Beach Courthouse.

The judge explained that he had read the motion and understood the “for all purposes” argument and asked the prosecutor what his response was to such an argument.  The prosecutor was deadly silent for about 20 seconds.  He did not say a word.

The judge then granted the motion, which was unexpected and made our client’s father happy, who attended the hearing. 

We present this summary to exemplify how being creative and trusting one’s legal skill is important.  Greg arrived at a legal argument that he had never seen argued before, which other attorneys were skeptical of, but filed the motion nonetheless and was rewarded.

For more information about the issues involved in this summary, please click on the following articles: