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Old September 25, 2011, 08:49 AM   #37
American Made
Member
 
Join Date: September 21, 2011
Location: Idaho
Posts: 92
Hi,


That whole "lesser" crime thing really bugs me. If someone pleads out on "Disturbing the peace" he still is under the gun ban. ...If the penal code that he pleads has the "element" of force ( like Ca P.C 415 ). However, you can reduce several of these lesser crimes in California to infractions. This takes you out of the misdemeanor and away from the ban. This whole law is overly broad AND unconstitutional.

Penal Code section 17(d) reads:


A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction

Penal Code 19.8. The following offenses are subject to subdivision (d) of
Section 17: Sections 193.8, 330, 415, 485, 490.7, 555, 602.13, 652,
and 853.7 of this code; subdivision (c) of Section 532b, and
subdivision (n) of Section 602 of this code; subdivision (b) of
Section 25658 and Sections 21672, 25658.5, 25661, and 25662 of the
Business and Professions Code; Section 27204 of the Government Code;
subdivision (c) of Section 23109 and Sections 12500, 14601.1,
27150.1, 40508, and 42005 of the Vehicle Code, and any other offense
which the Legislature makes subject to subdivision (d) of Section 17.
Except where a lesser maximum fine is expressly provided for a
violation of any of those sections, any violation which is an
infraction is punishable by a fine not exceeding two hundred fifty
dollars ($250).

Regarding California 17b and 17d:

People v. Gilbreth (2007) 156 Cal.App.4th 53 [-- Cal.Rptr.3d --]
[1] "[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring." (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant's possession of a firearm by a convicted felon must be reversed. (See People v. Banks (1959) 53 Cal.2d 370, 383-387, 388 ["defendant would remain classified as one convicted of a felony within the meaning of section 12021 . . . until and unless the [prior] offense was reduced to a misdemeanor by imposition of appropriate sentence"]; Gebremicael, supra, at p. 1485 ["as the Banks court observed, a person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of . . . section 12021"].)

The People attempt to create an aura of uncertainty around the application of section 17, subdivision (b)(3) by comparing this case to those where defendants unsuccessfully argued their convictions were automatically classified as misdemeanors because they successfully completed probation. (People v. Banks, supra, 53 Cal.2d 370; People v. Livingston (1970) 4 Cal.App.3d 251; People v. Esparza (1967) 253 Cal.App.2d 362.) We find those cases to be inapposite. Defendant's earlier conviction for evading an officer was reduced upon motion of the prosecution to a misdemeanor "for all purposes."

[2] We also are not persuaded by the People's criticism of Gebremicael, supra, 118 Cal.App.4th 1477, for its reliance on dicta in our Supreme Court's decision in People v. Banks, supra, 53 Cal.2d 370. We have no reason to disagree with the Gebremicael court's construction of section 17, and we agree that: "as observed in Banks, when the Legislature wants to continue treating a felony reduced to a misdemeanor under . . . section 17 as a felony, it expressly says so, and the court will treat the person as such only upon those occasions." (Gebremicael, supra, at p. 1486.) In fact, the Legislature added subsection (b)(3) to section 17 after Banks was decided, and included no language to suggest that a defendant whose conviction was reduced under section 17, subdivision (b)(3) was to still be considered a felon for purposes of section 12021. At the time he was charged in this case, defendant had a prior misdemeanor conviction for evading an officer, and that conviction could not be considered a felony to serve as the basis for a charge that defendant had violated section 12021. Defendant's conviction for being a felon in possession of a firearm is reversed.

Last edited by American Made; September 25, 2011 at 09:01 AM.
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