Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > How CA Laws Apply to/Affect Me
Register FAQ Members List Calendar Mark Forums Read

Reply
 
Thread Tools Display Modes
  #1  
Old 09-19-2018, 8:42 PM
gmaniscool gmaniscool is offline
Junior Member
 
Join Date: Sep 2018
Posts: 4
iTrader: 0 / 0%
Thumbs up How I went From Felony Wobbler, Suspended Sentence, Prob Viol, to PC(17)

Hello Calguns!

Here is my story of how I went from a 2 count convicted felon (wobbler) with a suspended 2x concurrent 16 month sentences to a PC 17(b).

While I am a new member, I have been reading the excellent info in this forum for years. If you have all of the the following conditions like I did, this post is for you:
+Felony Wobbler
+Suspended Sentence
+Probation Violation
+Spotless clean record since conviction
+a sliver of hope
+some cash for a good lawyer

The short story:
-plead guilty/convicted of 2x wobbler 487(a) grand theft with sentencing in 2002
-Judge gave me 2x concurrent 16 month terms suspended, but sent me to probation for 3 years instead. There was not really ever any talk in court of my case being reduced upon completion of probation.
-I have never set foot in a prison ever.
-violated probation with a wet reckless 3 months before the 3 year period ended. Sent to jail for 90 days, did 66.
-Sent back to Probation for 2 more years.
-at some point a few months in (2005), the probation officer looked me in the eye, told me I should not be there any longer, and somehow terminated my probation early (2005).
-at this point (end 2005) I continued on with my life and never looked back

-4 years later (2009) I attempted to have my felony reduced. Basically the judge laughed at my lawyer in chambers and told him not enough time has passed to even consider it.

-Fast forward to July 2018. The state is letting people out left and right, letting people off, so I decide to try again. From what I have read, if you have a suspended sentence, you can't PC17(b).Have the lawyer submit a 1203.4 instead so I can at least close this period of my life and contemplate having to ask Gerry for pardon. Not Stoked.
-Go to Court. While there, the PD (I have a private lawyer) comes up to me and says, "Hey man, I read your case, things have changed in the past 3 months, you can PC 17(b) now! You should retract this 1203.4 and refile as 17(b)". And he gave me and my lawyer the info and case history. He said the new rules are SO NEW, that many judges aren't aware.
-Retracted the 1203.4 and refiled the case as a 17(b), set for 8/31/2018

-Well, the big day came a few weeks ago. At first the judge said he wasn't going to approve the 17(b), however my lawyer took him into chambers, and when they came out and back to court, my PC 17(b) was granted, along with a 1203.4.

Happy Days!

(it should be noted that PC17(b) is clearly stated multiple times in the court order minutes, along with the wording "reduced to misdemeanor" for EACH individual charge as line items. See below)

So lets talk, there is a single subject that needs to be shared: the suspended prison sentence.
A lot of forums and websites out there will try to tell you that if you have a suspended prison sentence on top of a wobbler, you can't PC 17(b), get the reduction to misdemeanor, and regain your firearms rights.

Here is the recent case law and appeals decisions that basically state that even with a suspended sentence imposed, the court still has the right to back out of the conviction/sentence and resentence the wobbler.

I am not a lawyer, so I'm not going to pretend to be one, read it yourself and research this stuff on your own.
Court of Appeal, Second District, Division 6, California.
The PEOPLE, Plaintiff and Respondent, v. Rick PARKER, Jr., Defendant and Appellant.
2d Crim. No. B243010 Decided: June 24, 2013
https://caselaw.findlaw.com/ca-court...l/1636243.html

Appeals Court Ruling summary:
Citing People v. Howard (1997) 16 Cal.4th 1081, the trial court denied the section 1203.4 petition believing that it had no power to grant it.   It said, “once you impose but stay execution of a prison term, you are not entitled to 1203.4 relief.”   Howard is factually distinguishable.   It holds that if the trial court imposes but suspends execution of a prison term and grants probation, the court has no authority, upon revoking probation, to impose a lesser sentence.  (Id., at pp. 1094–1095.)  “On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations]․”  (Id., at p. 1088.)

Where a prison term is imposed but execution of sentence is suspended, the sentencing court retains jurisdiction over the defendant and the “res of the action” to administer the entire matter under probation procedures.  (People v. Banks (1959) 53 Cal.2d 370, 385.)  “The powers of the [trial] court, over the defendant and the cause, when it retains jurisdiction as provided by Penal Code, sections 1203 through 1203.4, ․ are well nigh plenary in character:  It may administer punishment to such defendant inclusive of every disability which would attach upon his sentence and commitment to prison, save only actual delivery of custody and jurisdiction to the prison authority with ensuing incarceration in the prison;  or at the other extreme, it may relieve him of substantially all disabilities and restraints which otherwise would follow from conviction.   In the first case, the court pronounces sentence of imprisonment and suspends its execution by the prison authority;  i.e., the court refrains from issuing commitment of the defendant to the prison authority.”  (Id., at pp. 384–385.)

Assuming the trial court revokes probation and commits the defendant to state prison, defendant's status changes from “probationer” to “prisoner” and defendant is ineligible for section 1203.4 relief.   Stated another way, section 1203.4 applies to probationers, not parolees or former prisoners.   (People v. Borja (1980) 110 Cal.App.3d 378, 381–382;  People v. Mendez (1991) 234 Cal.App.3d 1773, 1780;  People v. Jones (1985) 176 Cal.App.3d 120, 130–131.)   Appellant is a “probationer” even though he was given “joint suspended.”

The judgment (order denying section 1203.4 petition) is reversed.   The matter is remanded for further proceedings so that the trial court may exercise its discretion to grant the petition vel non.

Here is some is some more and possibly just as important:
People v. Mgebrov, 166 Cal. App. 4th (2008), the California Court of Appeals

Read this if you have a suspended prison sentence and a wobbler, it will give you the hope you need:
https://www.wklaw.com/felony-expunge...ison-sentence/

The California Court of Appeal’s Ruling and Rationale on Felony Expungements
In People v. Mgebrov, 166 Cal. App. 4th (2008), the California Court of Appeals explained that an expungement is “intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction.” However, an expungement does not render a prior conviction a “legal nullity.”

According to California Penal Code section 1203.4(a)(1), a defendant may be permitted by the court to withdraw his or her plea of guilty or plea of no contendere (no contest) and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation. California Penal Code section 1203.4(a) defines probation as “the suspension of the imposition or execution of a sentence.”

The California Court of Appeal overturned the Trial Court's decision.
People v. Parker in California Court of Appeal.
How did the Trial Court Err?
As such, the trial court erred in denying Parker relief under California Penal Code section 1203.4. Operating under the belief that “once you impose but stay execution of a prison term, you are not entitled to 1203.4 relief”, the trial court denied Parker’s petition since it believed that it lacked the power to grant it.

The California Court of Appeal ruled that the trial court did have the power to grant Parker’s expungement. If the trial court had revoked his probation term and committed him to state prison, Parker’s status would have change from “probationer” to “prisoner”. In this situation, Parker would have been ineligible for relief under California Penal Code section 1203.4 since this section does not apply to persons who have actually served a prison sentence. However, Parker qualified as a “probationer” despite having his state prison sentence suspended. As such, his petition to expunge the conviction should have been granted."


I have already gone back to the court house, retained two official copies of the 17 (b) order, and confirmed that the court has forwarded the updated info to the DOJ. My next step is to wait a few weeks and go try to make my first purchase in over 20 years.

I will try to post the minutes later.

Good Luck out there and thanks CalGuns!


Threads I visited before posting this:
Google search 'calguns pc17b'
https://www.calguns.net/calgunforum/...ighlight=pc17b
https://www.calguns.net/calgunforum/...t=pc17b&page=3
http://www.calguns.net/calgunforum/s...1272984&page=2

Last edited by gmaniscool; 09-19-2018 at 10:28 PM.. Reason: after thinking about it realized i don't want my exact record txt on the internet thanks for understanding
Reply With Quote
  #2  
Old 09-19-2018, 8:53 PM
ΜΟΛΩΝ ΛΑΒΕ's Avatar
ΜΟΛΩΝ ΛΑΒΕ ΜΟΛΩΝ ΛΑΒΕ is offline
Member
 
Join Date: May 2014
Posts: 321
iTrader: 11 / 100%
Default

Congratulations, your private lawyer doesn’t understand how to read a statute or how to read a case. But your lawyer was able to convince a judge to do something that is not legal in California law.

People v. Parker held that you can get a 1203.4 on a suspended prison sentence. Parker did not hold that you can get a 17(b) on a suspended prison sentence. If a prison sentence is suspended, that means sentence has been imposed, but not executed. People v. Wood (1998) 62 Cal.App.4th 1262, specifically held that you cannot 17(b) a suspended prison sentence. Parker in no way changed Wood.

I do not know if DOJ will consider that a valid 17(b) and I do not know if anyone else will be able to copy what you did.
Reply With Quote
  #3  
Old 09-19-2018, 8:58 PM
gmaniscool gmaniscool is offline
Junior Member
 
Join Date: Sep 2018
Posts: 4
iTrader: 0 / 0%
Default

Interesting.

While these cases might not be the ones that affected my outcome, the PD that was on duty in court did specifically state that either the 'guidelines' or 'appeals' (something to that effect) had changed statewide around May 2018, and that this was now possible. He specifically seeked me out in the courtroom to tell me and my lawyer this. I wish I had the exact info to share.
Reply With Quote
  #4  
Old 09-19-2018, 9:16 PM
gmaniscool gmaniscool is offline
Junior Member
 
Join Date: Sep 2018
Posts: 4
iTrader: 0 / 0%
Default

Quote:
Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
People v. Parker held that you can get a 1203.4 on a suspended prison sentence. Parker did not hold that you can get a 17(b) on a suspended prison sentence. If a prison sentence is suspended, that means sentence has been imposed, but not executed. People v. Wood (1998) 62 Cal.App.4th 1262, specifically held that you cannot 17(b) a suspended prison sentence. Parker in no way changed Wood. .
While i know nothing about vs Wood, you may want to read the next part about the appeals in People v. Mgebrov which NEGATES People v. Parker:
People v. Parker in California Court of Appeal.
How did the Trial Court Err?
As such, the trial court erred in denying Parker relief under California Penal Code section 1203.4. Operating under the belief that “once you impose but stay execution of a prison term, you are not entitled to 1203.4 relief”, the trial court denied Parker’s petition since it believed that it lacked the power to grant it.

The California Court of Appeal ruled that the trial court did have the power to grant Parker’s expungement. If the trial court had revoked his probation term and committed him to state prison, Parker’s status would have change from “probationer” to “prisoner”. In this situation, Parker would have been ineligible for relief under California Penal Code section 1203.4 since this section does not apply to persons who have actually served a prison sentence. However, Parker qualified as a “probationer” despite having his state prison sentence suspended. As such, his petition to expunge the conviction should have been granted."

read this whole thing:
https://www.wklaw.com/felony-expunge...ison-sentence/
Reply With Quote
  #5  
Old 09-19-2018, 9:24 PM
SkyHawk's Avatar
SkyHawk SkyHawk is offline
Front Toward Enemy 🔫
CGN Contributor
 
Join Date: Sep 2012
Location: Nakatomi Plaza - 30th floor
Posts: 11,630
iTrader: 131 / 100%
Default

You need to read Wood.
https://law.justia.com/cases/califor...h/62/1262.html

“Suspended prison sentence” is ambiguous.

There are two types of suspended sentences: a suspended imposition and a suspended execution.

If you have a suspended imposition of state prison sentence on a felony wobbler, you can get 17(b).
If you have a suspended execution of a state prison sentence on a felony wobbler you cannot get 17(b).

Quote:
There the Supreme Court held that, when a defendant suffers revocation of probation and is sentenced to prison, a trial court may not reduce a sentence previously imposed and suspended. Where the imposition of sentence was suspended, however, the trial court may, upon revocation, choose any sentence initially available. The Supreme [62 Cal. App. 4th 1271] Court pointed out the "important distinction, in probation cases, between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences." (Id. at p. 1087.) [4] The court stated that a trial court's authority with regard to probationary grants is "wholly statutory" (id. at p. 1092) and that under section 1203.2, subdivision (c), as well as California Rules of Court, rule 435(b)(2), a sentence once imposed and suspended must be ordered into full force and effect when probation is revoked.
And a 1203.4 does not mean you can apply for pardon. You cannot apply for pardon unless you served time in state prison.

So it is a good thing your sentence imposition was suspended, and a good thing you pursued the 17(b) because you were never eligible to apply for pardon.

Congrats, stay out of trouble and let us know what gun you buy first
__________________
.



"Texans always move them!"
General Robert E. Lee, May 6, 1864 - Battle of the Wilderness

Last edited by SkyHawk; 09-19-2018 at 9:31 PM..
Reply With Quote
  #6  
Old 09-19-2018, 9:32 PM
gmaniscool gmaniscool is offline
Junior Member
 
Join Date: Sep 2018
Posts: 4
iTrader: 0 / 0%
Default

Quote:
Originally Posted by SkyHawk View Post
If you have a suspended imposition of state prison sentence on a felony wobbler, you can get 17(b).
If you have a suspended execution of a state prison sentence on a felony wobbler you cannot get 17(b).

So it is a good thing your sentence imposition was suspended, and a good thing you pursued the 17(b) because you were never eligible to apply for pardon.

Congrats, stay out of trouble and let us know what gun you buy first
Thank you very much for that clarification!
Reply With Quote
  #7  
Old 09-20-2018, 9:42 AM
ΜΟΛΩΝ ΛΑΒΕ's Avatar
ΜΟΛΩΝ ΛΑΒΕ ΜΟΛΩΝ ΛΑΒΕ is offline
Member
 
Join Date: May 2014
Posts: 321
iTrader: 11 / 100%
Default

Quote:
Originally Posted by SkyHawk View Post

So it is a good thing your sentence imposition was suspended, and a good thing you pursued the 17(b) because you were never eligible to apply for pardon.
Incorrect. Sentence was imposed. The imposed sentence was 16 months state prison. Execution of that imposed sentence was suspended. If there is a prison term length decided by the judge, that is an imposition of sentence. Once a judge has decided a prison term, regardless of whether a person goes to prison or not, that crime is permanently a felony and cannot be reduced to a misdemeanor.

As has been repeatedly said, PC1203.4 and PC17 are two different things. The OP doesn’t understand this and how the courts have interpreted it. I’m not going to even try to explain why it is impossible for the 2008 case of Mgebrov to have changed the later case of Parker from 2013.

Last edited by ΜΟΛΩΝ ΛΑΒΕ; 09-20-2018 at 2:43 PM.. Reason: Edited for clarity
Reply With Quote
  #8  
Old 09-21-2018, 7:47 PM
SkyHawk's Avatar
SkyHawk SkyHawk is offline
Front Toward Enemy 🔫
CGN Contributor
 
Join Date: Sep 2012
Location: Nakatomi Plaza - 30th floor
Posts: 11,630
iTrader: 131 / 100%
Default

Quote:
Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
Incorrect. Sentence was imposed. The imposed sentence was 16 months state prison. Execution of that imposed sentence was suspended. If there is a prison term length decided by the judge, that is an imposition of sentence. Once a judge has decided a prison term, regardless of whether a person goes to prison or not, that crime is permanently a felony and cannot be reduced to a misdemeanor.

As has been repeatedly said, PC1203.4 and PC17 are two different things. The OP doesn’t understand this and how the courts have interpreted it. I’m not going to even try to explain why it is impossible for the 2008 case of Mgebrov to have changed the later case of Parker from 2013.
We do not have his court documents and transcripts to say for sure if there was a term specified or just given as an FYI of what could happen if he were to screw up, but the fact that he got a 17(b) would strongly infer that his sentence imposition was suspended. Short of actual court transcripts or sentencing documents, it's all we have to go on. It is possible of course that the 17(b) was issued improperly, which has happened. If so, OP will find out when he tries to buy a gun.
__________________
.



"Texans always move them!"
General Robert E. Lee, May 6, 1864 - Battle of the Wilderness

Last edited by SkyHawk; 09-21-2018 at 8:17 PM..
Reply With Quote
  #9  
Old 09-21-2018, 7:56 PM
71MUSTY's Avatar
71MUSTY 71MUSTY is offline
Calguns Addict
 
Join Date: Mar 2014
Posts: 5,309
iTrader: 16 / 100%
Default

Good for you OP, glad it worked for you.

Even if you don't know exactly how it worked that is what really matters.

And it can give others enough hope to at least look into it.

Bravo
__________________
IF WE EVER FORGET WE ARE ONE NATION UNDER GOD.
THEN WE WILL BE A NATION GONE UNDER.
Ronald Reagan


We stand for the Anthem, we kneel for the cross


We already have the only reasonable Gun Control we need, It's called the Second Amendment and it's the government it controls.
Reply With Quote
  #10  
Old 09-22-2018, 6:08 AM
AregularGuy's Avatar
AregularGuy AregularGuy is offline
Senior Member
 
Join Date: Jan 2013
Location: Oakland
Posts: 1,275
iTrader: 31 / 100%
Default

A bunch of questions left to assumption in the OP. Why do people drop PC numbers and expect people to know what they are? What were original charges and back story?

Before I pat OP on the back let's summarize, Thief gets off easy with probation then gets reduced charge for DUI while on reduced sentence for being a thief. In the end gets felony thievery charges reduced to misdemeanors. Yay!

WTF is pc 17b?:

http://freshstartlawcenter.com/what-...-code-17b.html

"California Penal Code 17(b) allows anybody convicted of a felony "wobbler" offense to petition the court to have the felony reduced to a misdemeanor. PC 17(b) only has three requirements that must met for your felony to be eligible for reduction:

1 The felony conviction must be what is known as a "wobbler."
2 You must have been given probation, and not sent to state prison. If you served any time in state prison you are not eligible to reduce your felony. County jail is not state prison.
3 If you were convicted of any other felonies in the same case, then all felonies must be eligible for reduction or none of them are."
__________________
FOR SALE:
Parachute. Used once, never opened. Small stain. Best offer.

“Those who survived the San Francisco earthquake said, ‘Thank God, I’m still alive.’ But, of course, those who died, their lives will never be the same again.” – Sen. Barbara Boxer


NRA Patron Member
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 1:30 AM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2018, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2018, Calguns.net an Incorporated Company All Rights Reserved.
Calguns.net and The Calguns Foundation have no affiliation and are in no way related to each other.
All opinions, statements and remarks made by Calguns.net on this web site and elsewhere are solely attributable to Calguns.net.