Motion for Reduction under 17(b)(3), Nun Pro Tunc Denied

On November 19, 2010, our client, then 20 years old, was arrested by the Downey Police Department, on suspicion of violating Health & Safety Code § 11350(a), possession of a controlled substance.  The substance was cocaine.  The case was a felony back in 2010.

About six months later, on May 11, 2011, he pled nolo contendere in the Norwalk Superior Court to one count of violating Health & Safety Code § 11350(a).  At the time, he was represented by the Los Angeles County Public Defenders’ office.  He was then placed on one year of formal probation with an obligation to enroll in and complete an outpatient drug treatment program, which he completed.  Probation was then terminated.

In 2017, shortly after Proposition 47 became effective in 2014, the Los Angeles County Public Defenders’ Office sent out a concise form letter to every former client eligible for Prop 47 relief, advising the individual that he or she may be eligible for reduction of the felony conviction to a misdemeanor conviction and that if interested, the letter recipient should contact to the Public Defenders’ Office to tell them so.  Our client did so, the petition for reclassification was shortly filed thereafter for free by the Public Defenders’ office and the petition was granted.  Our client was no longer a convicted felon.

However, after the George Floyd riots and COVID-19 pandemic, in 2023, our client tried to purchase a firearm to protect his family.  He was married and had three young children.  He was an accountant at a large trucking company.  His request to buy a firearm was denied.

The client then stumbled upon the Greg Hill & Associates website, wherein we described this exact same situation where a person convicted of a felony had the charge reduced to a misdemeanor under Prop 47 only to learn his or her gun rights were not restored under Penal Code § 1170.18(j), which is part of Prop 47.

Our office had successfully filed multiple motions to reclassify a felony nun pro tunc under Penal Code § 17(b)(3) in place of Proposition 47.  We had also requested this and the judge had denied the motion several times.  However, we had the motion granted perhaps 80 per cent of the time.

The client then called Greg Hill & Associates and spoke with Greg Hill about such a motion.  Greg cautioned the client that our office had lost this motion several times (Greg could recall two such times very clearly), but we had also had perhaps eight or ten other such motions granted.

Greg explained that he believed most judges did not regard such a request for reclassification as asking for too much, particularly since § 11350(a) is now a misdemeanor, so the motion was granted without too much scrutiny of the motion.  However, when a judge looked at the request carefully, he or she may recognize that reducing the charge under Proposition 47 was the only method of reducing the charge at the time and therefore, a reduction under 17(b)(3) was not yet possible.

So, Greg warned the client that while he certainly could file the motion and it probably would be granted, there was also a chance that a judge would deny the motion.

The client said he understood the situation and retained our law firm.  Our office then prepared, filed and served the motion to the District Attorney’s Office at the Norwalk Courthouse.

The matter was then assigned a hearing date and a department for the hearing.

As Greg warned the client, the particular judge assigned to the client’s motion considered the motion carefully.  A little too carefully, we think, and denied the motion.  She explained that if one were to request reduction of the charge back in 2017, shortly after Proposition 47 was passed (2014), the only way to reduce the felony to a misdemeanor was through Proposition 47.  Health and Safety Code § 11350(a) had not otherwise been amended to make it a misdemeanor.  

The judge therefore denied the motion.  

Greg Hill then had to explain the judge’s ruling to the client, who was certainly disappointed, but acknowledged that Greg had explained such a risk in advance and the client had understood this.

We offer this summary as a cautionary tale that judges make mistakes and in this area of the law, we find most judge do make a mistake, to our client’s benefit.  Other judges see the issue clearly and understand Proposition 47 and deny the motion.  Our legal system is far from perfect.