WRITING SAMPLES

 

Robert J. Beles  Bar No. 41993

1 Kaiser Plaza, Suite 1750

Oakland, California 94612

Tel No. (510) 836-0100

Fax. No. (510) 832-3690

 

Demetrius Costy

Attorney for Defendant

 

 

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA

RENE C. DAVIDSON COURTHOUSE

 

People of the State of California,

 

                        Plaintiff,

 

            vs.

 

Jane Doe,

 

                        Defendant.

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No.   H-13919

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

 

 

            MEMORANDUM OF POINTS AND AUTHORITIES

Penal Code section 17(b) allows this court to reduce a felony conviction to a misdemeanor if defendant is granted felony probation and the defendant requests that the court declare the conviction a misdemeanor.  The court can declare the conviction a misdemeanor at some time after imposing a sentence.

            The court record shows that defendant was convicted of two counts of Health and Safety Code Section 11379 with no subparts mentioned, following her guilty plea.  Subpart (a) of the section is a straight felony; subpart (b) is a “wobbler” (crime punishable as a felony or misdemeanor).  Since the conviction does not specify a subpart, the court should construe the conviction in defendant's favor and treat it as a conviction under subpart (b).

            With respect to crimes punishable either as a felony or a misdemeanor, there is no legislative preference for either punishment.  As the Supreme Court stated in Re Anderson (1968) 69 Cal 2d 613, 626, 73 Cal Rptr 21, 447 P2d 117:

“The fact that a crime punishable as a felony or a misdemeanor is regarded as a felony unless and until the trial court imposes a misdemeanor sentence does not show that the Legislature prefers a felony sentence to be imposed by the trial court....

 

A defendant's potential for rehabilitation is but one of several factors the trial court considers in determining whether to sentence a defendant to jail or to state prison.  The trial court also considers matters such as the community's need for protection, and no specific standard controls the exercise of the trial court's discretion.”

 

            Also, as this court is no doubt aware, Penal Code section 1203.4 requires the court to dismiss the case if a defendant, following conviction for a felony, was placed on probation, has successfully completed the terms of probation, is not serving a sentence, is not on probation, and is not charged with any new offense. (See People v Hawley (1991) 228 Cal.App.3d 247.)  However, a section 1203.4 dismissal does not get rid of the felony conviction for all purposes.  The defendant must still disclose the conviction in response to any direct question contained in any questionnaire or application for public office.

Defendant has successfully completed probation and has not been arrested for any other offense.  In fact, this is the only adult criminal conviction she has.  Defendant is now working as a real estate property management.  She has applied for firefighting positions in about 20 California communities over the past two years.  As part of the application process, she has had to disclose her felony conviction.  She has a two-year college degree, passed her examinations for the positions, but has never been hired.  She has heard from friends in the various fire departments that she is being passed over for hiring because of her felony conviction.

 

            Defendant would prefer that this court reduce her felony conviction to a misdemeanor, however, it would also be helpful to expunge the felony conviction under section 1203.4 if it cannot be reduced to a misdemeanor.  She could then inform potential employers that the court has expunged the conviction.

            Dated:  Oakland, California,

 

 

 

 

Demetrius Costy

            Attorney for Defendant