In 2001, our client was arrested for transporting over five pounds of marijuana with the intent to sell, a violation of Health & Safety Code § 11359, then a straight felony. He was then released from custody and about a month later, he was arrested again, by police officer posing as a buyer, of selling marijuana, a violation of Health & Safety Code § 11360(a), also a straight felony then.
As the reader may be aware, in November 2016, Proposition 64 was voted into law and became effect a few days later. It is also known as the Adult Use of Marijuana Act. It legalized possession of marijuana by adults with certain exceptions and made certain felony marijuana offenses misdemeanors as long as defendant was not disqualified based on a prior criminal history for any one or more of the “Super Strike” offenses (i.e., murder, certain sexually violent offenses, certain sex offenses with a victim under age 14, any sex crime that requires registration as a sex offender, or gross vehicular manslaughter while intoxicated).
Insofar as sales of marijuana becoming reclassified as a misdemeanor, Proposition 64 permitted reclassification of felony convictions for sales or transportation of marijuana as long as defendant had not been transporting more than 28.5 grams of marijuana or 4 grams of concentrated cannabis into or out of California, was not found to have been selling the marijuana to a person under age 18 and as long as the defendant did not have two or more prior convictions for sales of marijuana under Health and Safety Code § 11360(a).
Our client’s wife called up Greg Hill & Associates and explained that her husband had three convictions for felonies that he needed reduced to misdemeanors because he needed to get a job as a bus driver for a school with handicapped children. Her husband had worked for one employer for ten years as a driver, but then he was laid off when the company was sold and the new owner looked into the criminal histories of all employees. Although our client had been a model employee for ten years, he was laid off due to three felony convictions.
Two of the convictions were the ones described above. A third conviction was also for a violation of Penal Code § 11359 and Vehicle Code § 2800.2, felony evading arrest. The third conviction was out of the Inglewood Courthouse.
Greg discussed the three cases with the client’s wife. She explained that she and him have four children now. They had two girls, ages 13 and 17, as well as a boy, age 22, and a daughter, age 24. The client’s convictions were from when he was 28. He was now 49.
The client’s wife further explained that in all three cases, the client was sentenced to 24 months in state prison with all sentences running concurrently.
Greg then went to the Torrance Courthouse and got the dockets for all three cases. He reviewed the dockets and called the client’s wife back to discuss what he found. In one of the Torrance cases, the court clerk had acted under Proposition 64 in 2017 and dismissed the felony sales of marijuana (the five pounds of marijuana case) conviction and had the record sealed under Health & Safety Code § 11361.8. Greg explained that this would mean that conviction is no longer visible on the client’s Livescan. However, the client’s wife said it was still showing up.
Greg then agreed to file motions for reclassification of a felony as a misdemeanor in the two cases out of Torrance that are the subject of this summary.
The motion on the 11359 case had three issues that Greg explained could cause the prosecutor and / or the judge to struggle with. First, our client was sentenced to state prison and served time in state prison. Greg explained, however, that this was only because all three cases were sentenced concurrently and if each case were examined separately, it is probable that our client would have received probation without the pendency of the other two cases. Moreover, the case was no longer a state prison sentence due to the passage of AB 109 in 2011 that made such “prison” cases served in county jail under Penal Code § 1170.18(h). Lastly, there is no case that says expungement of a conviction for someone who went to state prison is not allowed and Penal Code § 1203.42 even allows this in a different context, but judges cling to the fiction, as do many prosecutors that even with “good cause,” such convictions may not be expunged.
Second, the 11359 case was sealed and dismissed already. Some prosecutors and judges would quickly state that the court therefore lacks jurisdiction over the case, but this is not true because under Meyer v. Superior Court (1966) 247 Cal. App. 2d 133, a case can be reduced from a felony to a misdemeanor after the conviction is expunged. In addition, under Penal Code § 4852, a certificate of rehabilitation may only be granted if a misdemeanor is at issue after it is expunged. So, this argument would be also meritless.
Third, the facts of the case were not just possession of two ounces and called sales. The client had five pounds of marijuana. This would be the most significant hurdle toward having the case reduced.
At the hearing for the 11359 case being reduced to a misdemeanor, the prosecutor argued first that Health & Safety Code § 11359 was a straight felony. This was untrue and Greg gently pointed out subsection (b), which states it is a wobbler.
The prosecutor then seized upon denying the motion because our client claimed he was unemployed, but had a letter of recommendation we submitted with the motion saying he had worked for the same employer for ten years. The DA then called up the employer, suspecting that our client had fabricated the letter. The former employer answered the phone and told the DA that our client was a solid, dependable, model employee who she missed greatly.
Upon hearing this, the prosecutor felt embarrassed and did not oppose the motion anymore. The judge then granted the motion, making our client and his wife extremely happy.
As to the second motion for reclassification of the 11360(a) charge, the judge also granted that motion to reclassify it as a misdemeanor, doing so in chambers without even a hearing.
A separate case summary will discuss the Inglewood court’s ruling on the third felony, prison case for our client.
For more information about Penal Code § 17(b)(3) motions, please click on the following articles: