Our client, back in 2006 when he was 25 years old, committed three separate felonies within about a ten week period. He had no prior criminal history before this short crime spree. He had lost his job and was hanging around with friends “up to no good.” All three cases were prosecuted in the Norwalk Superior Court.
The first felony arose in October 2006, when police pulled him over and discovered he was carrying a concealed weapon in his car. It was loaded. He was then arrested and then prosecuted for being in violation of Penal Code § 12025(a)(1) (now, in 2021, this is prosecuted under Penal Code §§ 25400(a)(6)(A) and (B)). At the same time, in the same case, he was charged with carrying a loaded firearm, a violation of Penal Code § 12031(a)(1).
While the first case was pending and our client was out on bail, he picked up a second case in January 2007 for grand theft (Penal Code § 487(a)) after he was observed stealing three very expensive rims from a parked car. Before he could steal all four, he fled the scene with three of the rims worth over $2,200. Police had a report of his license plate number, but did not find him for a few days.
Before police could find him, he was stopped by loss prevention at a Best Buy, where he was caught trying to walk out of the store without first paying while holding a car stereo and speakers worth approximately $500. When police reported to the store and arrested him for commercial burglary, they did not know he was the suspect in the car rims case for several hours.
Our client was then arraigned in January 2007 on two new, separate felony cases, one for grand theft and another felony case for commercial burglary.
The Norwalk Superior Judge handling all three cases suggested that the District Attorney agree to resolve each case for sixteen months in state prison and have the sentences for each case run concurrently. Legally, since the offenses were entirely separate events, the sentences could be served consecutively (one after another), but the judge made this suggestion, which our client’s public defender recommended the client accept and our client did accept.
Our client then served approximately eight months in state prison, not county jail, as these convictions were prior to the passage of AB 109 in 2011, which “realigned” how certain prison terms for certain non-violent offenses were served in county jail instead of state prison.
When the client left state prison, he immediately got a job as a tow truck driver, which he kept for four years until the tow truck company was purchased by a larger company who then fired our client because he was a three-time convicted felon.
Our client then became self-employed as a commercial truck driver with a Class A license and built up a business of transporting goods from the Port of Los Angeles to various customers in the Los Angeles and Orange County areas. However, due to his felony record, he never could get a TWIC card to enter the port. He therefore was relegated to only those jobs that were less lucrative and more difficult to find.
He nonetheless managed to earn a living and raise five children (three boys and two girls, all eighteen and younger in 2021) while his wife worked as a certified nurse’s assistant (CNA).
One day, however, he met a former client of Greg Hill & Associates and the two discussed our client’s criminal history. Our former client suggested he call Greg Hill & Associates to see if there was anything that could be done for his record.
The client, now 40 years old, then called Greg Hill & Associates and the client explained his 2007 convictions in three separate cases with one consolidated prison term. Greg explained that each of the offenses that the client was convicted of was a wobbler, meaning it could have been charged as misdemeanor or a felony, depending upon the facts and the person’s criminal history.
Greg further explained that since the client was sentenced to state prison, a judge would be reluctant to reduce the charge to a misdemeanor. In fact, some judges believed incorrectly that relief under Penal Code § 17(b)(3), reducing a conviction from a felony to a misdemeanor, was legally barred if one went to prison, but this was simply wrong and no case or statute said this.
Greg also pointed out that each crime, if viewed separately, would be filed as a misdemeanor most likely in 2021. Moreover, the client’s subsequent criminal history, which was no arrests at all since leaving prison, was compelling. His hard work and family history showed determination and grit.
Greg said he could file a motion for reclassification of the felony conviction to a misdemeanor in each case, but warned the client that the ruling on each would be heavily dependent on the judge’s legal knowledge, which was risky because many judges just did not understand the law in this area. The client understood, but said he needed to try.
The client’s courage was rewarded because the judge assigned to hear the cases was smart and sympathetic. She granted all three motions, reducing each conviction to a misdemeanor even though the client served time in prison for each.
Moreover, she invited Greg to request expungement of each under Penal Code § 1203.42 for the 12025(a)(1) gun charge (as it was punishable now under Penal Code § 1170(h) in county jail) and 1203.4 for the two theft offenses. Greg accepted the strong suggestion and the judge even granted expungement of all three convictions.
The client was beyond happy. He was very happy and eager to get his TWIC card to expand his business, saying he had called many attorneys and each one had told him what he wanted was impossible. Greg was the first one to explain it was not impossible, but it might not succeed. However, he filed the motions and the judge granted each one.
We present this summary to exemplify how a well-written motion, humbly and respectfully presented, with a creative argument, does prevail in certain circumstances. Here, each motion was granted, significantly changing our client’s and his family’s lives.
For more information about Penal Code § 17(b)(3) issues, please click on the following articles: