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Client Goes to Prison, Conviction Expunged 1203.42, 17(b)(3)
Over thirty years ago, in September 1992, our client was arrested by the Rancho Cucamonga Police Department. Our client, then 18 years old, allegedly stole a car stereo from a store. During the arrest, he struggled with the police and several police were necessary to arrest him.
Our client was then charged with commercial burglary, assault with great bodily injury / deadly weapon and petty theft.
He entered a plea to a violation of Penal Code § 459, commercial burglary, and was sentenced to two years in state prison. At the time, he already was on three years of formal probation in a Chino Courthouse case (back when there was such a courthouse) for felony grand theft, so the judge in that case found him in violation of probation based on this case.
The two cases were then consolidated and our client was sentenced to two years in state prison for each case, to run concurrent.
In 2011, Assembly Bill (AB) 109 became law, “realigning” how cases were sentenced and allowing certain felony sentences to be served in county jail to ease prison overcrowding.
The two convictions at issue here, the 459 in this case and the 487 conviction in the companion case (consolidated for sentencing to state prison in 1992), would have been eligible under Penal Code § 1170(h), as provided in AB 109, for sentencing to county jail if sentencing had taken place after AB 109 passed.
On October 22, 2021, on our motion, the Court reduced the felony grand theft conviction in the Chino case to a misdemeanor.
This client now sought the same reduction in the present case, as well as expungement relief under § 1203.42.
Penal Code § 1203.42 provides:
He works as 90-ton crane operator, but this felony conviction limits the amount he can earn to support his family. His job involves driving the crane to and from different locations, preparing the crane for day shifts and occasionally operating the crane. Such duties are often involved in military and state-controlled areas, which disqualify him from such opportunities due to his felony conviction.
Our client lives with his wife, three children and their grandchild. He needs to earn as much money as he can for his growing family.
Here, the conviction at issue was suffered before implementation of AB 109 in 2011 and would have been eligible for sentencing under Penal Code § 1170(h) (to county jail, not state prison) had it been suffered later.
More than two years had passed since our completed his sentence (Penal Code § 1203.42(a)(2)).
In the same motion, our office asked for the judge to reduce the commercial burglary charge to a misdemeanor under § 17(b)(3).
The judge in Rancho Cucamonga hearing the motion at first denied the motion, saying she could not grant 17(b)(3) relief once our client was transferred to the CDCR.
Our client was then charged with commercial burglary, assault with great bodily injury / deadly weapon and petty theft.
He entered a plea to a violation of Penal Code § 459, commercial burglary, and was sentenced to two years in state prison. At the time, he already was on three years of formal probation in a Chino Courthouse case (back when there was such a courthouse) for felony grand theft, so the judge in that case found him in violation of probation based on this case.
The two cases were then consolidated and our client was sentenced to two years in state prison for each case, to run concurrent.
In 2011, Assembly Bill (AB) 109 became law, “realigning” how cases were sentenced and allowing certain felony sentences to be served in county jail to ease prison overcrowding.
The two convictions at issue here, the 459 in this case and the 487 conviction in the companion case (consolidated for sentencing to state prison in 1992), would have been eligible under Penal Code § 1170(h), as provided in AB 109, for sentencing to county jail if sentencing had taken place after AB 109 passed.
On October 22, 2021, on our motion, the Court reduced the felony grand theft conviction in the Chino case to a misdemeanor.
This client now sought the same reduction in the present case, as well as expungement relief under § 1203.42.
Penal Code § 1203.42 provides:
If a defendant was sentenced prior to the implementation of the 2011 Realignment Legislation for a crime for which he or she would otherwise have been eligible for sentencing pursuant to subdivision (h) of Section 1170, the court, in its discretion and in the interests of justice, may order the following relief, subject to the conditions of subdivision (b):Our client, now age 49, had turned his life around since these events more than three decades ago. He has worked hard and resolved never to make the kinds of mistakes that led to the conduct at issue.
- The court may permit the defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty, and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code
- The relief available under this section may be granted only after the lapse of two years following the defendant's completion of the sentence.
- The relief available under this section may be granted only if the defendant is not under supervised release, and is not serving a sentence for, on probation for, or charged with the commission of any offense.
- The defendant may make the application and change of plea in person or by attorney, or by a probation officer authorized in writing.
He works as 90-ton crane operator, but this felony conviction limits the amount he can earn to support his family. His job involves driving the crane to and from different locations, preparing the crane for day shifts and occasionally operating the crane. Such duties are often involved in military and state-controlled areas, which disqualify him from such opportunities due to his felony conviction.
Our client lives with his wife, three children and their grandchild. He needs to earn as much money as he can for his growing family.
Here, the conviction at issue was suffered before implementation of AB 109 in 2011 and would have been eligible for sentencing under Penal Code § 1170(h) (to county jail, not state prison) had it been suffered later.
More than two years had passed since our completed his sentence (Penal Code § 1203.42(a)(2)).
In the same motion, our office asked for the judge to reduce the commercial burglary charge to a misdemeanor under § 17(b)(3).
The judge in Rancho Cucamonga hearing the motion at first denied the motion, saying she could not grant 17(b)(3) relief once our client was transferred to the CDCR.
Greg withdrew the motion and refiled it about nine months later, hoping the motion would be assigned to a different judge and a different DA would be handling the case. This “worked” because the motion was in fact assigned to a different judge and there was a newer DA assigned to the case. The judge granted the motion, reducing the case to a misdemeanor and expunging the conviction. The client was extremely happy with this result.
For more information about Penal Code §§ 1203.42 and 17(b), please click on the following articles:
