17b on HS11350a

[scottmac2000]

Those of you with 11350's reduced per 17b, you will not receive what you are expecting. While a lot of courts are reducing 11350's to misdemeanor, the doj, with no legal basis to do so, will not recognize the reduction.
I had three 11350's from three different courts spread across two counties reduced per 17b. These were from the late 1980's. After months of getting my record corrected to show the proper reductions, I thought I was good to go.
See attached document received from doj. An unnamed lawyer requested this through the freedom of information act. Obviously, this document was put together a long time ago as 11350a is now just a misdemeanor.
So, I'm legal to possess a firearm as I have no felonies on my record but keep getting denied on purchasing one.

[SkyHawk]

See PC 1170.18 (the nut of Prop 47), especially section (j)

https://leginfo.legislature.ca.gov/f...ionNum=1170.18.

(j) A felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to own, possess, or have in their custody or control a firearm or prevent their conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

Also see THE PEOPLE v. FRANKLIN BASTIDAS (2017), Court of Appeal, First District, Division 5, California.

https://caselaw.findlaw.com/court/ca-court-of-appeal/1765785.html

He tried to argue the firearms restriction should not apply but he lost.

It sucks that anyone now convicted under 11350(a) retains their firearms rights but people who were convicted before Prop 47 do not, but that is the way things stand as of now. Perhaps a new case citing Bruen will offer some relief down the road.

[scottmac2000]

My 11350's were reduced under 17(b), not prop 47. It shows reduced per 17(b) under each 11350 on my rap sheet. 17(b) says "for all purposes" without the firearm restrictions that prop 47 has. I feel this doj disagreement should be with the courts, not me. Prop 47 is for everyone, even those still in prison.
But there are some of us with old 11350's who are outstanding citizens with excellent moral character. And the fact that a current 11350 is just a misdemeanor makes this a hard pill to swallow.

[SkyHawk]

My 11350's were reduced under 17(b), not prop 47. It shows reduced per 17(b) under each 11350 on my rap sheet. 17(b) says "for all purposes" without the firearm restrictions that prop 47 has. I feel this doj disagreement should be with the courts, not me. Prop 47 is for everyone, even those still in prison.
But there are some of us with old 11350's who are outstanding citizens with excellent moral character. And the fact that a current 11350 is just a misdemeanor makes this a hard pill to swallow.

Here is the thing - a 17(b) issued improperly is still not a 17(b). The courts have ruled on that as well in cases. See People v. Mauch

https://casetext.com/case/people-v-mauch

Holding that a crime punishable only by imprisonment in the state prison is a "straight felony" that cannot be designated as a misdemeanor

The district attorney challenges the trial court's order reducing Jeffrey Garrett Mauch's conviction, following a guilty plea, for felony cultivation of marijuana (Health Saf. Code, ? 11358) to a misdemeanor. We agree the trial court lacked authority to reduce the offense from a felony to a misdemeanor, and we therefore vacate defendant's plea and direct the trial court to reinstate the charge as a felon

The trial court’s reliance on [California Penal Code] section 17, subdivision (b), was misplaced. That provision invests the trial court with discretion to treat a felony “punishable … by imprisonment in the state prison or by fine or imprisonment in the county jail” as a misdemeanor in certain circumstances. (section 17, subd. (b).) The Legislature’s use of the disjunctive “or” establishes that subdivision (b) only applies to offenses, known as “wobblers” (People v. Statum (2002) 28 Cal.4th 682, 685), for which the Legislature has authorized alternative punishment besides state prison incarceration. (See People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 329, [trial court “may only reduce an offense to a misdemeanor if it is a felony-misdemeanor (‘wobbler’), which may be prosecuted as either a felony or a misdemeanor”].) Absent alternate punishment authorized by statute, a trial court “has no power to reduce a straight felony to a misdemeanor.”). See also People v. Lee (Cal. App. 5th Dist., 2017) 706, 16 Cal. App. 5th 861.

Also see People v. Gilbreth for discussion between wobblers and straight felonies.


Now I have no idea how those cases stand in the face of what I assume are tons of people who are now getting (perhaps improper) 17(b) for what were straight felonies, as a result of Prop 47. There may be some documentation or guidance from the courts out there, but I have not kept up with it (not a lawyer). Though here is a document and you would be interested in the reading starting on page 189 https://countyda.sccgov.org/sites/g/...2016-IPG18.pdf

And also see https://www.courts.ca.gov/documents/...nformation.pdf

Anyhow a 17(b) cannot be used to reduce a straight felony. And 17(b) also can only be used to reduce a wobbler if it was a wobbler at the time the crime was committed.

See People v. Davis for a recent discussion of retroactive application of changes to law and firearms rights under prop 47. Basically since a specific relief was specified by Prop 47 (1170.18), it is what applies and the new misdemeanor classification of 11350 only applies retroactively under the conditions imposed by 1170.18 (which means no firearms)

https://caselaw.findlaw.com/court/ca-court-of-appeal/1730580.html

In the case of Proposition 47, the electorate spoke with exceptional precision about the intended retroactive application of the changes to California criminal law at issue here.  Persons “currently serving a sentence” for a conviction of a crime reduced from a felony to a misdemeanor by Proposition 47 are entitled to the benefit of the statutory changes, but only to the extent and under the conditions specified by section 1170.18, which governs the retroactive application of these changes. (? 1170.18, subd. (a).)  A person who has “completed his or her sentence” for such a crime is similarly entitled to a reduction of the conviction from a felony to a misdemeanor, again subject to the statutory procedure

So just because you have 17(b), don't assume it is legit - a whole lot of people got invalid 17(b) in the past and found out the hard way later. You technically should have gotten relief under 1170.18 not 17(b). The only relief available to you was a reclassification per 1170.18.

Also at play is federal law, and the sentence you could have gotten. Unless it was a wobbler, federal law still says you are prohibited absent some other relief from a state process (or a federal case that challenges 922).

See:

United States v Pruner (9th circuit 1979)
United States v Rivers (D. Conn 1979)
United States v. Bridgeforth (9th circuit 2006)

[splithoof]

But there are some of us with old 11350's who are outstanding citizens with excellent moral character.

Has any court or legislature defined what exactly is meant by either good or excellent moral character?

[tedw]

https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/sentencing_resources/clemency/clemency-how-to-determine-whether-a-prior-california-conviction-was-a-felony-or-misdemeanor.pdf

California “Wobblers”: How to Determine Whether a Prior California
Conviction Was a Felony or a Misdemeanor

4. The law is unsettled how to treat wobblers that were declared misdemeanors at a later
date, pursuant to ? 17(b)(3).
a. In the context of determining whether an alien has entered the country after a
felony conviction, the Ninth Circuit has held that a such a declaration, at least
where the order is not explicitly nunc pro tunc, does not alter the conviction’s
status as a felony for ? 2L1.2. See U.S. v. Salazar-Mojica, 634 F.3d 1070 (9th
Cir. 2011); see also U.S. v. Yepez, 704 F.3d 1087 (9th Cir. 2012) (holding that
nunc pro tunc early termination of probation did not alter probation status for
purpose of safety valve).
b. There is, however, a strong argument that a nunc pro tunc order declaring a felony
a misdemeanor would work to convert a felony to a misdemeanor for purposes of
the career offender guideline, ? 851 and ACCA--because those guidelines/statutes
require that the defendant have prior convictions for a felony, which a nunc pro
tunc order should defeat.