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Motion to Reduce Health & Safety Code 11359 to Misdemeanor

In 1996, our client was driving through a residential area of North Gardena during daylight hours and was stopped by the Gardena Police Department for an illegal turn.  Our client was 24 years old at the time.

Police suspected our client, who is white, was in the predominantly African American area to buy drugs.  In fact, however, he was returning from a delivery of a computer part that a customer had ordered.  Police, however, did not find this explanation credible and, without asking for consent to search, searched our client’s car and found a bag of marijuana with over an ounce (28.5 grams), but less than two ounces, of the substance.  It was all for personal use, not sales.

Indeed, police did not find any scale, pay-owe sheets, smaller baggies to make sales or any other indicia of sales.  Our client only had one cellphone with him. 

The client was nonetheless then arrested on suspicion of violation of Health and Safety Code § 11359 (possession of marijuana for sales), a felony, and Health and Safety Code § 11357 (possession of marijuana), a misdemeanor.

The case was filed in the Torrance Superior Court about six weeks later and our client, anxious about going to state prison for a felony, readily accepted a plea bargain to the felony once he was told that no jail or prison time would be required.  He used the services of a public defender and resolved the charges with convictions for both at his arraignment.

Torrance CourthouseTorrance Courthouse

According to the plea bargain, he was placed on 36 months of formal probation with an obligation to serve three days in the Los Angeles County jail, with credit for time served after his arrest (he was jailed, did not post bail and entered a plea of no contest at the arraignment).

In 2002, the client hired an attorney to “expunge” the conviction, but not reduce the charge to a misdemeanor.  The case was dismissed under Penal Code § 1203.4. 

Eighteen years later, the client called up Greg Hill & Associates because he had tried to buy a gun, but the Department of Justice reported he was ineligible due to his 1996 conviction for violation of Health and Safety Code § 11359.  The client spoke with Greg and asked if the DOJ was mistaken because, after all, the conviction was expunged.

Greg explained that the judge retained jurisdiction to still reclassify the felony 11359 count as a misdemeanor under Meyer v. Superior Court of Sacramento County (5th App. Dist., 1966) 247 Cal. App. 2d 133, 55 Cal. Rptr. 350 (1966 Cal App Lexis 946). 

The client then hired Greg Hill & Associates to prepare the motion to reclassify the charge as a misdemeanor under Penal Code § 17(b)(3). 
The motion first explained that Health & Safety Code § 11359 is a “wobbler,” meaning a charge of violating this provision may be filed as either a misdemeanor or a felony.  Generally speaking, however, a violation of 11359 will be filed as a misdemeanor under the Adult Use of Marijuana Act (Prop 64) when defendant is 18 years of age or older unless one of the following exceptions apply:
  1. The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;
  2. The person has two or more prior convictions under subdivision (b); or
  3. The offense occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years.
Offenses listed under Penal Code § 667(e)(2)(C)(iv) include
  1. A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
  2. Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than the defendant as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than the defendant, as defined by Section 289.
  3. A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
  4. Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
  5. Solicitation to commit murder as defined in Section 653f.
  6. Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
  7. Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
  8. Any serious or violent felony offense punishable in California by life imprisonment or death.
Our motion then explained how Health & Safety Code § 11359(b) states, “[e]very person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

Here, our client had no prior convictions, let alone one for a crime listed under Penal Code § 667(e)(2)(C)(iv) or one requiring registration under Penal Code § 290.  He also does not have any prior conviction, let alone two or more for violation of Health & Safety Code § 11359(b).  Lastly, he was not arrested for sales or attempted sales of cannabis to a person under 18 years of age.

The motion further stated that since the case at issue, our client had no arrests of any sort.  He had worked for a major Fortune 500 company as an outside field technician.  He previously worked for another Fortune 500 company as a software developer.  Since the arrest, he had lived a stable, responsible lifestyle.  However, he wanted to become an armed security guard because it pays more, yet with a felony on his record, that was impossible.

Our office then filed the motion, served it on the Torrance District Attorney’s office and waited for the judge’s clerk to set a hearing on the motion, which happened about three weeks later.  At the hearing, the judge granted the motion, reducing the client’s felony conviction for violation of Health and Safety Code § 11359 to a misdemeanor under Penal Code § 17(b)(3), so the client could now purchase, possess and own a firearm.  The client was very happy.

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

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