San Fernando, Motion to Reclassify Under 17(b) after Prop 47
In 2010, our client, then 23 years old, was arrested by the Los Angeles Police Department, Devonshire Station, on suspicion of violating Health & Safety Code §§ 11360(a), 11359 and 11357(a). He was found with approximately three pounds of marijuana.
After being arrested, he posted a bail bond and was released after signing a promise to appear in the San Fernando Superior Court.
Approximately a year later, in 2011, with the help of a public defender, he pled nolo contendere to one count of violating Health & Safety Code § 11357(a), possession of marijuana. The remaining two counts were dismissed. He was then placed on three years of formal probation, which he finished in 2014.
On November 1, 2014, Proposition 47 was passed into law, changing certain low-level drug offenses and certain theft offenses into misdemeanors, with certain exceptions. Our client’s conviction for violation of Health & Safety Code § 11357(a) was now eligible for reduction to a misdemeanor.
Indeed, in early 2015, our client received a letter from the Los Angeles County Public Defenders’ office advising him that Proposition 47 had been passed into law and that he was eligible to have his felony conviction for violating § 11357(a) reduced to a misdemeanor for free. All he had to do was respond to the letter, indicating he was interested in this. He did so and his felony indeed was ordered reduced to a misdemeanor by the judge.
Our client believed that he no longer had any of the “scars” or collateral consequences of having a felony. This meant he most importantly was no longer a convicted felon, but it also meant – he believed – that he could own a gun, vote, serve on a jury, and was much more employable. However, at the time, he had a steady job already as a judo instructor, so he did not look for a better job.
In 2021, however, with the COVID-19 pandemic raging and unemployment surging due to failed businesses, our client became quite nervous about his job surviving. While he had no children and was not married, he yearned to earn more and found a job where his judo skills were of value: a security guard for “high value” clients.
Such a job required that our client carry a firearm, so he applied to own one at a gun store. He was told he was disqualified from this, which puzzled him because he had his felony reduced to a misdemeanor.
San Fernando CourthouseThe client then called Greg Hill & Associates and spoke to Greg about this problem. Greg listened to the client explain his situation and then described why he remained barred from owning a firearm. Under Proposition 47, one does not regain one’s right to own a firearm under federal law for life.
Greg explained further, however, that he could file a motion in the court to have the judge reclassify the felony under Penal Code § 17(b)(3) rather than Proposition 47, so his gun rights could be reinstated.
Greg explained how in California, "[a]ll Courts have inherent authority to issue orders judgments nunc pro tunc . . . ."
Martin v. Martin (1970) 2 Cal.3d 752, 760. The primary purpose of a judgment nunc pro tunc is to fix a mistake in the judgment rendered, and not to modify the terms of the judgment.
Hamilton v. Laine (1997) 57 Cal.App.2d 885, 891.
California cases state three situations under which the court is authorized to grant a judgment nunc pro tunc: (1) "[to] preserve[e] the legitimate fruits of the litigation which would otherwise be lost to the prevailing party;" (2) "[to] correct [a] deficiency in the recordation of a previous decision so as to express the true intention of the court as of the earlier date;" and (3) to correct a clerical error.
Young v. Gardner-Denver Co. (1966) 255 Cal. App. 23d 915, 919.
Greg explained to the client, as he did in the motion, that California law expressly permits modification of orders or judgments after entry: "[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed . . ." California Code of Civil Procedure § 473(d). The term "clerical error" covers "[a]ll errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence . . . the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence."
Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204.
This standard encompasses misidentification or misdescription of persons or property affected by the court's judgment.
Chula v. Superior Court (1962) 57 Cal. 2d 199, 206 (allowing plaintiff to add officer or shareholder who controlled litigation as a judgment debtor).
Here, our client’s motion asked the judge to add certain rights to the reduction of the felony to a misdemeanor, which were understood to be included in the reduction, but were omitted by proceeding through Prop 47 and not § 17(b)(3). So, we asked that the judge change the basis for the reduction to Penal Code § 17(b)(3).
Our office then filed the motion in the San Fernando Superior Court and a hearing date was set. Greg fortunately knew the District Attorney assigned to the case, having first met him in law school. The DA did not oppose our motion and the judge granted the motion.
Our client was happy with this result, as he had called five attorneys before reaching Greg. All the other attorneys told him that such a change was impossible, but Greg said he could do it and did.
For more information about a motion to reclassify a felony as a misdemeanor, please click on the following articles:
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