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Los Angeles, 17(b) Motion Granted, 11350(a), Prison Served

In September 1995, our client was convicted of a violation of California Health & Safety Code § 11350(a) (“Possession of a Controlled Substance”).  According to the plea bargain, our client, then 22 years old, was sentenced to sixteen months in state prison.  

Our client was originally arrested on charges of possession of a controlled substance for purpose of sales (Health & Safety Code § 11351) in Hollywood with 22 grams of crack cocaine after trying to make a sale (a violation of Health & Safety Code § 11352) to an undercover police officer.  Our client had become addicted to crack and was selling crack to fund his own habit, as is common among those who lose their jobs due to their drug use or who simply have no other source of income.  

The client was represented by a public defender, who negotiated a plea bargain reduced charge of simple possession of a controlled substance, Health & Safety Code § 11350(a), but this was nonetheless at the time a straight felony and our client agreed to a sixteen-month prison sentence.  

This plea bargain was reached at the Bauchet Street courthouse across the street from Twin Towers and underneath Men’s Central Jail.  This courthouse, with only three courtrooms, was also known as the Central Arraignment Court.  It is now almost exclusively used for AB 109 probation violations and parole violation matters.

mot_for_red_felony_40_-_central_arraignment_court_-_bauchet_street.jpgCentral Arraignment Court - Bauchet Street

As the reader may be aware, in 1995, possession of a controlled substance (Health & Safety Code § 11350(a)) such as cocaine (in any form) or heroin was a “straight felony,” meaning it was not a wobbler.  It was only charged as a felony.

In 2011, Assembly Bill 109 (“AB 109”) was passed, allowing “realignment” of the state’s prison system to fix overcrowding of our state prison, which the U.S. Supreme Court had found constituted cruel and unusual punishment, a violation of the Eighth Amendment to the U.S. Constitution.  With the passage of AB 109, sentences for violations of Health & Safety Code § 11350(a) were to henceforth be served in county jails unless the person had certain prior convictions that excluded him from county jail.

Then in November 2014, Proposition 47 was passed, which reclassified certain low-level drug offenses such as possession of a controlled substance, like our client here was convicted of, to be misdemeanors unless the person was a registered sex offender or reclassifying the conviction would create an imminent threat to public safety based on the offender’s prior criminal history.  However, a reduction of the felony to a misdemeanor had to be requested by the offender under Penal Code § 1170.18(f) and such a reduction did not restore one’s right to own, purchase or possess a firearm (Penal Code § 1170.18(k)).

After our client had finished his prison term for the 11350(a) violation, he obtained a job and, while still struggling with addiction issues (he went back to prison for a further drug possession conviction in 2006), he generally was employed continuously.  However, his felony convictions scarred his criminal record, imposing a ceiling on his ability to be promoted despite his experience and leadership skills.
Our client also wanted to buy a firearm, but knew that being a convicted felon barred him from this right for his lifetime.

He then called Greg Hill & Associates and spoke with Greg Hill about reducing his felony conviction from downtown Los Angeles to a misdemeanor.  The client explained the facts of the underlying case from 26 years earlier, his subsequent conviction for the same thing eleven years later and his employment history.

Greg explained that his felony conviction could be reduced under Prop 47 (Penal Code § 1170.18(f)) or Penal Code § 17(b)(3), but that 17(b)(3) was superior because it restored one’s Second Amendment (firearm) rights and Prop 47 did not.  Greg further explained that some judges incorrectly believed that if someone was sentenced to prison and served time in prison, as compared to being sentenced to probation, the underlying crime was ineligible for 17(b)(3) relief.  

Greg explained, however, that perhaps only 20% of the judges operated under this practice, but it was painful nonetheless to occasionally encounter such judges, as Greg had recently experienced in the Santa Ana courthouse.

The client agreed to retain Greg Hill & Associates nonetheless with the understanding that there was a risk of a poor judge assignment.  

Our office then prepared, filed and served a motion for reclassification of the client’s 11350(a) felony conviction as a misdemeanor.  The motion was granted, which made our client quite pleased.

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