In 1996, our client was arrested, charged in Pasadena Superior Court with a felony violation of Vehicle Code § 10851(a) (taking and driving another car without owner’s consent, with no intent to steal, aka “joyriding”) and sentenced to state prison for sixteen months, to run concurrent with a contemporaneous felony conviction in Downtown Los Angeles Superior Court for possession of a controlled substance, cocaine (Health & Safety Code § 11350(a)), wherein he was also sentenced to sixteen months in state prison as well.
Some might think our client was lucky to essentially get a “two for one,” which was accurate at the time (now 25 years ago) because each crime was certainly committed at a different time and in a different location, so the sentences really should have been served consecutively, rather than concurrent.
However, in 2021, both sentences now would be served in county jail if AB 109 had been effect in 1996.
On October 1, 2011, AB 109, also called the Re-Alignment Act, became effective, changing where certain felons would serve state prison sentences from state prison to county jail. AB109’s purpose was to decrease California’s overcrowded prisons by housing certain defendants in county jail who would have received a prison term instead. Certain defendants were not included in such a realignment of the prison population. These are those defendants convicted of certain sex offenses and those who had a prior conviction for a serious or violent felony, also known as a “strike offense.”
In addition, on November 1, 2014, Proposition 47, also called the Safe Neighborhoods and Schools Act, changed simple possession of a controlled substance, i.e., cocaine (Health & Safety Code § 11350(a)), became a straight misdemeanor unless that person was a registered sex offender, that person had a conviction for a “Super Strike” offense, which is an offense listed at Penal Code § 667(e)(2)(c)(iv) (i.e. murder, any homicide, solicitation to commit murder, assault with a machine gun on a police officer or fireman, possession of a weapon of mass destruction, or any serious or violent felony punishable by life in prison or death), or reducing the felony to a misdemeanor would create an unreasonable danger to public safety, defined as meaning the person would be likely to commit a “Super Strike.”
Moreover, on January 1, 2018, under Assembly Bill 3115, Penal Code § 1203.42 became effective. It permitted one who had been convicted and sentenced to state prison prior to AB 109 becoming effective, to request “expungement” of the conviction even though the person was sentenced to and served time in state prison. There were certain exceptions to eligibility (it did not apply to someone convicted of a serious or violent felony or certain sex crimes against children), but for our client, none of the exceptions applied and he was eligible for this relief because more than two years had passed since he completed parole and is not now on probation, post-relief community supervision, parole or facing a pending criminal case.
These new changes in the law were explained to our client when he called our office merely asking if he could reduce his “joyriding” conviction from a felony to a misdemeanor.
The client explained the facts of the case, how he was sentenced and why he wanted this reduction of the felony to a misdemeanor.
Greg commented that while AB 109, Proposition 47 and Penal Code § 1203.42 had dramatically changed the law in this regard – and Vehicle Code § 10851 was a wobbler anyways, the client had served prison time, which some judges incorrectly regarded as a categorical bar to reduction of a felony to a misdemeanor under Penal Code § 17(b)(3).
The client stated that he really needed the reduction and was willing to accept the risk of such a judge denying the motion. He just felt he needed to try and did not want to just accept the felony without at least trying to have it reduced – and expunged now that the law provided for this.
The client then retained Greg Hill & Associates, which prepared, filed and served the motion to reduce the felony conviction to a misdemeanor under Penal Code § 17(b)(3). The same request also asked the judge to apply Penal Code § 1203.42 to withdraw the client’s plea and dismiss the case (“expunge”).
The judge granted both requests, making our client very happy indeed.
For more information about 17(b)(3) and expungement issues, please click on the following articles: