Torrance, Two 17(b)(3) Motions Granted, Prison Time Served

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: