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Motion to reduce

The following is a sample motion to reduce felony to misdemeanor under PC sec. 17(b) that was recently granted and then expunged (I told client to wear a suit for the hearing---he looked great and the judge took careful notice)

 

DECLARATION IN SUPPORT OF MOTION

TO REDUCE FELONY TO MISDEMEANOR

                    

          I, MICHAEL L. SHULTZ, declare as follows:

          1.  I represent defendant _______ in the within case and motion;

          2.  On October 12, ___ in Dept. ____ of the within Court, defendant pleaded no contest to felony driving under the influence as charged in Count 1 (VC sec. 23153(a)).  On December 13, 2006, in Dept. 120, imposition of sentence was suspended and defendant was placed on three years formal probation on condition he serve 60 days in jail, pay certain fees and fines, cooperate with alcohol and drug education testing and counseling, and other standard DUI related terms and conditions.   

          3.  Probation has now expired without violation and with all terms and conditions prescribed by the probation department scrupulously observed.   

          4.  The instant offense is defendant’s only criminal offense.

          5.  Defendant, born in Chile, has lived most of his life in the US as a permanent US resident.  Defendant desires to apply for US citizenship.  Reduction to a misdemeanor would make possible such application under federal immigration statutes.

          6.  Defendant, an assistant surveyor and shipwright who restores vessels and who is experienced in mold removal, cannot contract with certain government agencies or enter certain military bases with a felony conviction. 

          7.  Defendant has been turned away from other employment due to the felony conviction. 

          8.  Reduction to a misdemeanor would enhance defendant’s ability to earn a living and advance in his occupations.

          9.  Based on the above, this court would be justified in declaring the offense to be a misdemeanor under sec. 17(b).

         

          I declare the foregoing to be true and correct under penalty of perjury this 24th day of August, 2012 at Malibu, California.

                                                                     

                                        

          MICHAEL L. SHULTZ    

          Attorney for Defendant


MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION TO REDUCE FELONY TO MISDEMEANOR

 

I

A CRIME PUNISHABLE IN THE DISCRETION OF THE COURT AS A

FELONY OR MISDEMEANOR IS A MISDEMEANOR FOR ALL PURPOSES

WHEN THE COURT GRANTS PROBATION WITHOUT IMPOSITION OF

SENTENCE AND THEREAFTER DECLARES THE OFFENSE TO BE A MISDEMEANOR

                                                             

          Penal Code Section 17(b) provides in part:

                     "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances  ...

           (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant  . . .  thereafter, the court declares the offense to be a misdemeanor."

          VC sec. 23153(a) is punishable either in the county jail or in the state prison and is therefore a “wobbler” under sec. 17(b) (see. VC sec. 23554 et.seq.).

 

II

THE COURT HAS BROAD AUTHORITY UNDER SEC. 17(b)

           The California Supreme Court has recognized that trial courts have “broad authority and “broad latitude,” in ruling on an application to reduce a felony to a misdemeanor.  (People v. Alvarez (1997) 14 Cal.4th 968, at p.973, 981).  In Alvarez, the Supreme Court refused to disturb the trial court’s decision to reduce a felony H&S sec. 11377 to a misdemeanor in a three strikes case where the amount of contraband in question was minute but where the defendant had been convicted of four residential burglaries and had violated parole. 

           The Court also noted at p.980: “By making violation of Health and Safety Code section 11377, subdivision (a), a wobbler, the Legislature has determined that either a misdemeanor or a felony punishment may be appropriate in the discretion of the sentencing court.”  

           The legislature made a similar determination in the case of VC sec. 23153, the charge in which defendant was convicted.  

 

 

III

DEFENDANT’S GOOD CONDUCT, IMMIGRATION STATUS

AND EMPLOYMENT OPPORTUNITIES JUSTIFY THE

COURT’S EXERCISE OF DISCRETION IN THIS INSTANCE

         

          The records on file show that defendant has complied with all terms and conditions, has been rehabilitated and is a productive member of society.  Defendant’s ability to apply for US Citizenship and his ability to earn a living would be enhanced with the reduction to misdemeanor. 

          Further, other than the instant case, defendant has no other criminal convictions, prior to or subsequent to the offense in this case.   Defendant is therefore worthy

of receiving this court’s consideration so that he can continue his upward path.

 

IV

AFTER DECLARING THE OFFENSE A MISDEMEANOR,

DEFENDANT REQUESTS THAT THE COURT GRANT THE CONTEMPORANEOUSLY FILED EXPUNGEMENT MOTION

PURSUANT TO PC SEC. 1203.4

         

          Defendant has contemporaneously filed in this court his motion to expunge pursuant to PC sec. 1203.4, and defendant incorporates said motion by this reference.  Defendant requests that the court declare his offense to be a misdemeanor and thereafter dismiss pursuant to sec. 1203.4.

 

 

          Respectfully submitted,

 

                                               

          MICHAEL L. SHULTZ,

          Attorney for Defendant


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MICHAEL SHULTZ


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MICHAEL L. SHULTZ, ATTORNEY AT LAW

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