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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 12-14-2012, 7:04 AM
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Default Chalk vs DOJ : Felonies Prosecuted As Misdemeanor Are Still Felonies

For all you minor offenders, here's another cruel twist of law.

Tenative ruling for today:

Quote:
Proceedings:
Petition for Writ of Mandate
Filed By:
Michael E. Mechill and David L. Wiseman, Attorneys for Petitioner
The following shall constitute the Court's tentative ruling on the above-entitled matter. The tentative ruling shall become the ruling of the Court unless a party desiring to be heard so advises the clerk of this Department no later than 4:00 p.m. on the court day preceding the hearing, and further advises the clerk that such party has notified the other side of its intention to appear.
In the event that this tentative ruling becomes the final ruling of the Court, counsel for Respondent is directed to prepare a formal judgment, incorporating this ruling as an exhibit; submit it to opposing counsel for approval as to form; and thereafter submit it to the Court for signature and entry of judgment in accordance with Rule of Court 3.1312.
TENTATIVE RULING
Petitioner seeks a writ of mandate to compel Respondent Department of Justice to determine that he is eligible to possess a firearm, and amend its records to show that Petitioner received a misdemeanor conviction for violating Health and Safety Code § 11359 in Sacramento Superior Court Case No. 93F06464. In the alternative, Petitioner requests that this Court dismiss the complaint against him or show in its records that he was convicted of a misdemeanor. The Court shall deny the Petition.

BACKGROUND FACTS AND PROCEDURE
In 1993, Petitioner was charged with violating Health and Safety Code section 11359 (possession of marijuana for sale). Petitioner pleaded guilty to violating this statute in Sacramento Superior Court Case No. 93F06464. Petitioner alleges that he pleaded guilty to this offense “as a misdemeanor.” The documents attached to the Petition indicate that the Court convicted Petitioner of this offense, disposed of this case as a misdemeanor, and sentenced him to five years’ formal probation and 120 days in jail. (Petition, Exh. 1, 3.)
In January 2012, Petitioner filed an application with Respondent, requesting that Respondent perform a firearms eligibility check, as Petitioner wished to purchase a firearm. On March 6, 2012, Respondent issued a letter stating that Petitioner was ineligible to possess a firearm, because Petitioner was convicted of a felony. (Petition, Exh. 5.) Specifically, Petitioner was convicted of violating Health and Safety Code § 11359.
STANDARD OF REVIEW
A petitioner may seek a writ of mandate pursuant to Code of Civil Procedure § 1085 to compel public agencies to perform acts required by law. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539.) "There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty." (Cal. Assoc. for Health Servs. v. State Dept. of Health Servs. (2007) 148 Cal.App.4th 696, 704 (citing Loder v. Mun. Ct. (1976) 17 Cal.3d 859, 863).)
"A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists." (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (citation omitted).)
"In a petition for writ of mandate brought pursuant to Code of Civil Procedure section 1085 , … the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based." (Cal. Corr. Peace Officers Assoc. v. State Pers. Bd. (1995) 10 Cal.4th 1133, 1153-54 (citations omitted).) A petitioner must also demonstrate that no "plain, speedy, and adequate" remedy at law exists. (Civ. Proc. Code. § 1086.)
DISCUSSION
California law prohibits felons from owning or possessing firearms. A person convicted of a “felony under the laws of the United States, the State of California,

or any other state, government, or country … and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.” (Pen. Code § 29800(a)(1).)
Penal Code §§ 30000 et seq. require Respondent to determine whether persons are eligible to possess firearms, and maintain a “Prohibited Armed Persons File,” which contains information about persons who are prohibited from owning or possessing a firearm. (Pen. Code § 30000(a).) If an applicant requests an eligibility check, Respondent must “[e]xamine its records …, to determine if the purchaser is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.” (Pen. Code § 30105(d)(1).)
A violation of Health and Safety Code § 11359 is a felony, punishable by 16 months, two years, or three years in prison. (Health & Saf. Code § 11359; Pen. Code §§ 18, 1170(h); In re Johnny O. (2003) 107 Cal.App.4th 888, 892.)
Petitioner contends that because he pleaded guilty to a misdemeanor violation of Health and Safety Code § 11359, Respondent erroneously determined that he was a felon who was ineligible to possess a firearm.
“In ordinary mandamus proceedings such as this one, courts may exercise a very limited review of a public agency's action, and may merely determine whether the agency's action was arbitrary, capricious, or entirely lacking in evidentiary support.” (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805 (citations omitted).) Respondent’s actions did not fall below this standard.
Respondent has a ministerial duty to determine if an applicant who seeks to possess a firearm is eligible to do so. (Penal Code §§ 30000 et seq.) If Respondent determines that an applicant is prohibited under state or federal law from possessing a firearm, it must notify the applicant of this fact. (Pen. Code § 30105.) Petitioner was convicted of violating Health and Safety Code § 11359, a felony offense. Felons are prohibited from possessing firearms. Thus, Respondent properly concluded that Petitioner was ineligible to possess a firearm.
Petitioner argues that Respondent was required to instead, give effect to the disposition of Case No. 93F06464 and the misdemeanor sentence he received for this offense. Petitioner has not shown that Respondent abused its discretion, nor has he shown that Respondent must “amend” its records to reflect that Petitioner is not a felon.
A violation of Health and Safety Code § 11359 is a “straight” felony offense, not a “wobbler,” which may be reduced to a misdemeanor. (Health & Saf. Code § 11359; Pen. Code §§ 17, 18, 1170(h).) Thus, a court is not authorized to reduce this offense to a misdemeanor. (See People v. Mauch (2008) 163 Cal.App.4th 669, 675; People v. Douglas (2000) 79 Cal.App.4th 810, 813; People v. Superior- 3 -

Court (Feinstein) (1994) 29 Cal.App.4th 323, 329.) Accordingly, Respondent did not abuse its discretion in when it reviewed its records, learned that Petitioner was convicted of a violation of Health and Safety Code § 11359, and determined that Petitioner was ineligible to possess a firearm.
Petitioner also asks that the Court dismiss Case No. 93F06464 and “revise the record to reflect” that Petitioner was convicted of a misdemeanor for an offense similar to Health and Safety Code § 11359. If Petitioner wishes to challenge his conviction in Case No. 93F06464, he must file a separate action with the Court.
DISPOSITION
For the foregoing reasons, the Petition for Writ of Mandate is DENIED
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  #2  
Old 12-14-2012, 7:15 AM
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Cliff's notes, please?

My brain (and eyes) isn't working too well today.
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  #3  
Old 12-14-2012, 7:30 AM
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Originally Posted by NytWolf View Post
Cliff's notes, please?

My brain (and eyes) isn't working too well today.
You want a Cliff note? Don't trust the prosecutors, the courts, and the plain language of a deal made with either.

This was a request for the court to issue a writ to force the California DOJ to honor the prosecutors deal to accept a plea as a misdemeanor as opposed to a felony so as to avoid the bar to gun ownership. But alas, the DOJ put the subject on the prohibited list anyway, because of the definition of the crime, not the plead out conviction. The court basically just upheld that too, although it seem to direct the petitioner to try another avenue, which I have no clue whether it will work
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Old 12-14-2012, 7:32 AM
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Court said his felony was not eligible to be reduced to a misdemeanor, so he was therefore convicted of a felony.
If someone is convicted on a plea bargain, and the plea bargain is found to be unlawful, does the conviction still stand?
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Old 12-14-2012, 7:37 AM
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Originally Posted by stretch64 View Post
Court said his felony was not eligible to be reduced to a misdemeanor, so he was therefore convicted of a felony.
If someone is convicted on a plea bargain, and the plea bargain is found to be unlawful, does the conviction still stand?
I believe that is what the court just said, else his petition would not have been denied. For now, his conviction as a felon is fact
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Old 12-14-2012, 7:41 AM
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So basically, what the court said is ...

they're going to look at the crime, not the plea, to determine whether or not it's a felony? That's pretty messed up.

If you apply logic to it, that means all felonies that are pleaded as misdemeanors will eventually be deemed as felonies due to the nature of the charged crime. Is my understanding correct?
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Old 12-14-2012, 7:45 AM
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Originally Posted by NytWolf View Post
So basically, what the court said is ...

they're going to look at the crime, not the plea, to determine whether or not it's a felony? That's pretty messed up.

If you apply logic to it, that means all felonies that are pleaded as misdemeanors will eventually be deemed as felonies due to the nature of the charged crime. Is my understanding correct?
The court seemed to differentiate those felonies that had option within them to prosecute as either or, as opposed to those that had no distinction contained within.
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Old 12-14-2012, 7:46 AM
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Originally Posted by AyatollahGondola View Post
Petitioner also asks that the Court dismiss Case No. 93F06464 and “revise the record to reflect” that Petitioner was convicted of a misdemeanor for an offense similar to Health and Safety Code § 11359. If Petitioner wishes to challenge his conviction in Case No. 93F06464, he must file a separate action with the Court.
So, is this the Court punting on the issue of whether the conviction stands?
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Old 12-14-2012, 7:52 AM
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So, is this the Court punting on the issue of whether the conviction stands?
It may have been out of the realm of remedies allowed under a writ
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Old 12-14-2012, 8:01 AM
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Sounds like "wobbler" makes all the difference.
But, there are plenty of folks whom have been convicted of a felony, then had it reduced to misdemeanor after time or probation served, then misdemeanor expunged, whom have had 2a rights restored.
Said felonies must have been wobblers Im guessing.
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Old 12-14-2012, 8:07 AM
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Sounds like "wobbler" makes all the difference.
But, there are plenty of folks whom have been convicted of a felony, then had it reduced to misdemeanor after time or probation served, then misdemeanor expunged, whom have had 2a rights restored.
Said felonies must have been wobblers Im guessing.
The major question here is, just how many Californians does this affect?
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Old 12-14-2012, 8:09 AM
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This is not new news, nor is it a big deal. The problem is not with DOJ. The problem is with the Court who let the defendant enter into an illegal plea bargain.
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Old 12-14-2012, 8:16 AM
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Illegal plea bargain?
Sounds like the whole enchilada would be dismissed if that became fact.
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Old 12-14-2012, 8:19 AM
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The cliff's notes version is: if you accept a plea deal on a felony crime, it is not a wobbler that can be reduced to a misdemeanor, even if the court gives you a misdemeanor sentence. Your lawyer should be smart enough to ask the prosecution to change the charge to something that is actually a misdemeanor.
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Old 12-14-2012, 8:33 AM
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This is not new news, nor is it a big deal. The problem is not with DOJ. The problem is with the Court who let the defendant enter into an illegal plea bargain.
I'm willing to bet that it is new news and a big deal to some Californians who thought they had a deal, and are on the prohibited list when they thought they weren't
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Old 12-14-2012, 8:35 AM
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Originally Posted by 1911_sfca View Post
The cliff's notes version is: if you accept a plea deal on a felony crime, it is not a wobbler that can be reduced to a misdemeanor, even if the court gives you a misdemeanor sentence. Your lawyer should be smart enough to ask the prosecution to change the charge to something that is actually a misdemeanor.
How many people in criminal proceedings get the benefit of "smart" lawyers? Public defender is a common denominator in cases like those, I would further bet
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Old 12-14-2012, 8:56 AM
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This is a restatement of existing law - it does not change anything. A 'straight' felony cannot be reduced, and there are cases stretching back decades that say as much. He could have pled to a lesser included charge, assuming that charge is a wobbler or misdemeanor, but the court had no discretion to reduce a straight felony to a misdemeanor. That is a power granted or not granted by the legislature.

However, I wonder whether counsel in this case took the right approach. A Motion to Vacate Judgement (coram nobis). seems like the correct approach at the outset, the petition for Writ of Mandate seems spurious.

It's a tough call and it's not a slice of law I know well, but it sounds like the party's situation and facts would satisfy the Shipman requirements to succeed with a motion to vacate, even in light of how courts treat E.C.N. motions post-People v. Kim.

All hope (for this guy) may not be lost.
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Old 12-14-2012, 9:23 AM
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If a person commits a felony then they should be charged with a felony. Plea bargain or not, if you can't do the time, don't do the crime. I have no sympathy what so ever for anyone that commits a crime. If I break the law, I deserve the punishment that it comes with. That is why I do my best not to break any laws.
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Old 12-14-2012, 9:34 AM
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Originally Posted by Curley Red View Post
If a person commits a felony then they should be charged with a felony. Plea bargain or not, if you can't do the time, don't do the crime. I have no sympathy what so ever for anyone that commits a crime. If I break the law, I deserve the punishment that it comes with. That is why I do my best not to break any laws.
I haven't been one, but I have talked to a number of people who copped a plea for lesser punishment because they :
a) were unable to afford counsel
b) their court appointed counsel seemed incompetent, uninterested, or ineffective
c) they claimed that evidence was planted and had lost sufficient faith in the authorities and the courts to give them any hope of a fair trial.

I went through a trial many years ago, and although I kept demanding a trial, and a speedy one, they just kept delaying and recycling hearing after hearing with offers of a lesser charge each time in the hopes, and as practice of wearing me down. Each time, my lawyer got all my money. I eventually prevailed, but I can see where a person without any resources, or is held without bail during the process, might have enough other pressing issues to accept an offer regardless og guilt. Maybe your kids are in someone elses care because you're the only parent, maybe your property is subject to loss as you go through this...
Really, it's not quite as simple as you say every time
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Old 12-14-2012, 10:07 AM
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Originally Posted by AyatollahGondola View Post
I haven't been one, but I have talked to a number of people who copped a plea for lesser punishment because they :
a) were unable to afford counsel
b) their court appointed counsel seemed incompetent, uninterested, or ineffective
c) they claimed that evidence was planted and had lost sufficient faith in the authorities and the courts to give them any hope of a fair trial.

I went through a trial many years ago, and although I kept demanding a trial, and a speedy one, they just kept delaying and recycling hearing after hearing with offers of a lesser charge each time in the hopes, and as practice of wearing me down. Each time, my lawyer got all my money. I eventually prevailed, but I can see where a person without any resources, or is held without bail during the process, might have enough other pressing issues to accept an offer regardless og guilt. Maybe your kids are in someone elses care because you're the only parent, maybe your property is subject to loss as you go through this...
Really, it's not quite as simple as you say every time
Sorry, but if someone commits a felony I have no sympathy for them. Don't do the crime if your not ready to do the time or pay the price. It IS that simple. Maybe they should have thought about their kids before they committed a felony.
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Old 12-14-2012, 10:22 AM
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Sorry, but if someone commits a felony I have no sympathy for them. Don't do the crime if your not ready to do the time or pay the price. It IS that simple. Maybe they should have thought about their kids before they committed a felony.
I'm sincerely glad the world is so black-and-white for you. That's not how the world actually works, though.

Odds are, you're a felon right now too, and don't even realize it.

http://www.threefeloniesaday.com/You...6/Default.aspx
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Old 12-14-2012, 10:27 AM
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Sorry, but if someone commits a felony I have no sympathy for them. Don't do the crime if your not ready to do the time or pay the price. It IS that simple. Maybe they should have thought about their kids before they committed a felony.
You are making an assumption that everyone who is charged, is guilty
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Old 12-14-2012, 11:02 AM
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Originally Posted by scootergmc View Post
This is not new news, nor is it a big deal. The problem is not with DOJ. The problem is with the Court who let the defendant enter into an illegal plea bargain.
Bingo.

And since this 'deal' was flawed based on bad information - from the court itself - and given defendant plead due to a variety of misinformation, the defendant may have a chance of going back pursuing a sentence reduction via 'error coram nobis" motion, where the 'case clock' is reset to the moment before plea.

[This is only available in plea and not jury trials]
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Old 12-14-2012, 12:04 PM
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Looks like it was a felony, but with a misdemeanor-level sentence imposed. So, it's still a felony.

And it still sucks.

Stay away from the MJ until further notice.
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Old 12-14-2012, 12:39 PM
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You are making an assumption that everyone who is charged, is guilty
No I am not making an assumption, I clearly said if you commit a felony. I did not say if you were charged for a felony, I clearly said if you commit a felony. Big difference.
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Old 12-15-2012, 10:06 AM
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No I am not making an assumption, I clearly said if you commit a felony. I did not say if you were charged for a felony, I clearly said if you commit a felony. Big difference.
The assumption you are making is that of a black and white world, where all crimes can be neatly classified into categories defined by the legislature. If that were the case, sentencing wouldn't be variable.
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Old 12-15-2012, 1:24 PM
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Originally Posted by stretch64 View Post
Court said his felony was not eligible to be reduced to a misdemeanor, so he was therefore convicted of a felony.
If someone is convicted on a plea bargain, and the plea bargain is found to be unlawful, does the conviction still stand?
Apparently there are several different wtypes of crimes:

1. A crime that can only be charged as a misdemeanor.
2. A "wobbbler", a crime that can be charged as either a misdemeanor or a felony. The charge itself can be either.
3. A crime that is a felony, but can be sentenced as if it were a misdemeanor. This is the one being ruled on now.
4. A crime that is a felony and will always be a felony and cannot be reduced.
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Old 12-15-2012, 1:39 PM
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Originally Posted by 1911_sfca View Post
The cliff's notes version is: if you accept a plea deal on a felony crime, it is not a wobbler that can be reduced to a misdemeanor, even if the court gives you a misdemeanor sentence. Your lawyer should be smart enough to ask the prosecution to change the charge to something that is actually a misdemeanor.
Well said.
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