331 Soquel Ave., Suite 201

Santa Cruz, CA 95062

Tel: (831) 251-7897

Attorney For Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CRUZ

THE PEOPLE OF THE STATE OF NO.

CALIFORNIA,

Plaintiff, DEMURRER TO COUNTS ONE AND TWO OF THE COMPLAINT

vs.

, Date: January 26, 2017

Time: 8:15 a.m.

Defendant. Dept: 6

______/

PLEASE TAKE NOTICE that on the 26th of January, 2017, at 8:15 a.m., or as soon thereafter as the matter may be heard, in Department 6 of the above-entitled court, the defendant herein will move for an order sustaining Defendant's Demurrer to Counts One and Two of the Complaint. This motion will be made on the grounds that neither Count One nor Count Two state a cause of action and does not substantially conform to the provisions of sections 950, and 952 of the Penal Code.

This demurrer will be based on the attached memorandum of points and authorities, on the charging document in this case, on any evidence presented, and on such argument as may be made at the hearing.

POINTS AND AUTHORITIES

I. Counts One and Two of the Complaint

Count One of the complaint alleges that Defendant committed the crime of “Possession of Firearm by a Felon, in violation of Penal Code Section 29800(a)(1)” on or about October 6, 2016. Count One also alleges that Defendant was previously convicted of felonies in Santa Cruz Superior Court Case numbers F26909 and F22699. Both of these convictions were for violations of Health and Safety Code section 11359.

Count Two of the complaint alleges that Defendant committed the crime of “Possession of Ammunition by a Prohibited Person, in violation of Penal Code Section 30305(a)(1)” on or about October 6, 2016. Just as Count One alleged, Count Two also alleges that Defendant was previously convicted of felony violations of Health and Safety Code section 11359 in Santa Cruz Superior Court Case numbers F26909 and F22699.

The Complaint was filed on October 11, 2016.[1]

II. Status of the Prior Alleged Felonies

A. Case F

On July 18, 20 , Mr. entered a No Contest plea to a felony violation of Health and Safety Code section 11359, possession of marijuana for sale, and was sentenced to three years formal probation and to, among other conditions, serve 365 days county jail with credit for 52 actual days. Mr. completed his jail sentence and was on formal probation until December 9, 2016.

On December 9, 2016, this Court granted Defendant’s “Motion to Resentence and Reduce” Mr. conviction to a misdemeanor, pursuant to Health and Safety Code section 11361.8. Consequently, Mr. Hudson’s felony conviction was recalled, and the Court resentenced Mr. based on a misdemeanor conviction of Health and Safety Code section 11359. This Court also terminated his formal probation on December 9, 2016.

B. Case

On September 6, 2012, Mr. entered a No Contest plea to a felony violation of Health and Safety Code section 11359, possession of marijuana for sale. Judgment was entered and he was sentenced to three years formal probation on this same day. Mr. completed his sentence and probation on May 4, 2016.

On December 9, 2016, this Court granted Defendant’s “Motion to Redesignate” Mr. ’s conviction to a misdemeanor, pursuant to Health and Safety Code section 11361.8. Consequently, this Court redesignated his prior felony as a misdemeanor conviction of Health and Safety Code section 11359.

III. General Law and Argument

Penal Code section 1004 provides that a defendant may demur to the accusatory pleading when it appears upon the face thereof either: ... (2) That it does not substantially conform to the provisions of Section 950 and 952 ... (4) That the facts stated do not constitute a public offense. Penal Code section 952 provides that “each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.” The charge may be “in any words sufficient to give the accused notice of the offense of which he is accused.” (PC section 952).

Turning to the present case, because defendant does not currently have a prior felony conviction, and specifically the cases alleged in the complaint to be felony convictions are no longer felony convictions, the complaint does not state a cause of action.

A. The prior convictions shall be considered misdemeanors for all purposes.

Health and Safety Code section 11368.1(h) provides that any felony conviction that is recalled and resentenced or redesignated as a misdemeanor “shall be considered a misdemeanor for all purposes.” This precise language appears in section 11368.1’s progenitor statutes, Penal Code sections 1170.18 and 17.

Penal Code section 1170.18, enacted in 2014 by Proposition 47, provides a means for defendants previously convicted of certain felony offenses to petition to have those felony sentences recalled and to be resentenced to a misdemeanor. The structure and language of Section 11368.1 is very similar to that of Penal Code section 1170.18. In fact, section 11368.1 directly references Penal Code section 1170.18. (See 11368.1(b)(1) and (b)(2)). It is clear that the Legislature used Penal Code section 1170.18 as a template for section 11368.1. Indeed, much of the language of section 11368.1 is identical to Penal Code section 1170.18.

In general, “‘identical language appearing in separate statutory provisions should receive the same interpretation when the statutes cover the same or analogous subject matter.’” (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6.) Because Penal Code section 1170.18, subdivision (k), and Health and Safety Code section 11368.1 both address the effect of recalling and resentencing of a felony (or a wobbler that could be a felony) as a misdemeanor, the phrase “misdemeanor for all purposes” in section 1170.18, subdivision (k), should be construed to mean the same as it does in section 11368.1. (See People v. Abdallah (2016) 246 Cal.App.4th 736, at 745.)

“Proposition 47, [enacting PC 1170.18], borrowed the “for all purposes” language of section 1170.18, subdivision (k), from section 17, subdivision (b).” (Abdallah, supra, at 745) Subsequently, Proposition 64, (enacting H&S 11361.8), borrowed this language from PC 1170.18. Thus, the case law interpreting the “for all purposes language” contained in PC section 17(b) and in PC 1170.18 should be controlling here.

“Courts have long recognized that reduction of a wobbler to a misdemeanor under what is now section 17(b) generally precludes its use as a prior felony conviction in a subsequent prosecution.” (People v Park (2013) 56 Cal.4th 782, at 794.) In Park, the trial court enhanced the defendant's sentence by five years under section 667, subdivision (a), because of a prior serious felony conviction. (Park, at p. 787.) Before sentencing, however, another trial court had reduced the prior offense to a misdemeanor under section 17(b), and then dismissed it pursuant to section 1203.4(a)(1). (Park, at p. 787.) The Supreme Court held that “when the court in the prior proceeding properly exercised its discretion by reducing the [felony] conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence.” (Ibid.)

Similarly, in People v. Gilbreth (2007) 156 Cal.App.4th 53, a possession of a firearm by a felon case, the court held that the reduction of defendant’s earlier offense to a misdemeanor pursuant to PC 17(b) precluded using it as the predicate offense to the charge that defendant was a felon in possession of a firearm. The Gilbreth court reasoned that “[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) 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant's possession of a firearm by a convicted felon must be reversed.” (Gilbreth, supra, at 57-58).

B. The Voters intended to permit those who received reductions pursuant to 11368.1 to regain their rights to possess firearms.

A simple comparison of Penal Code section 1170.18 and Health and Safety Code section 11368.1 reveals that the drafters of 11368.1 intended to restore Defendants’ rights to possess firearms. While PC 1170.18 and H&S 11368.1 are very similar, they differ in the area of firearm possession. Penal Code section 1170.18(k) provides that:

Any 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 such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

On the other hand, Health and Safety Code section 11368.1(h) provides, in its entirety:

Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor or infraction under subdivision (f) shall be considered a misdemeanor or infraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subdivision (b) or designated as an infraction under subdivision (f) shall be considered an infraction for all purposes.

While Penal Code section 1170.18(k) specifically provides that resentencing or redesignation as a misdemeanor does not permit a person originally convicted of a felony to possess a firearm, Health and Safety Code section 11368.1 does not include such language. The drafters omitted that language in 11368.1 and did not qualify or limit the language requiring a redesignated offense to be considered a misdemeanor “for all purposes.” This omission must have been intentional. (Following the statutory construction doctrine of Expressio Unius Est Exclusio Alterius (the expression of one thing is the exclusion of the other).[2]

IV. Where the reduction to a misdemeanor precedes a conviction and sentencing in the current case, the prior cannot be used as a basis for the current charge.

The prosecution cannot rely on a felony that has been reduced to a misdemeanor to support pending charges. (See People .v Abdallah, supra, (2016) 246 Cal.App.4th 736). Abdallah held that when a Defendant is resentenced to a misdemeanor prior to sentencing in the current case, that prior offense can no longer be used to impose a one-year sentence enhancement pursuant to Penal Code section 667.5. The Defendant in Abdallah was sentenced by the trial court to an aggregate prison sentence of five years, which included a one-year enhancement pursuant to Penal Code section 667.5(b). (Id. at 740). Section 667.5(b) imposes a one-year enhancement for committing an offense that leads to a felony conviction within five years of having been released from custody on another felony conviction. The court imposed this enhancement because Abdallah had been released on parole on February 18, 2005, from a conviction he had suffered in 2002, and then had been arrested less than five years later in October 2009 for a new felony, for which Abdallah was convicted in 2011. (Id.)

Meanwhile, however, between Abdallah's conviction and sentencing in the new case, the voters enacted Proposition 47. Pursuant to the new law, the trial court, before it sentenced Abdallah in the new case, recalled Abdallah's 2011 felony sentence and resentenced Abdallah to a misdemeanor on that conviction. Thus, by the time the trial court sentenced Abdallah in the new case, the prior offense that led to the felony conviction within five years of Abdallah's release from custody was no longer a felony conviction. It was, under section 1170.18, subdivision (k), “a misdemeanor for all purposes.” (Abdallah at 740).

In holding that once the court resentenced defendant on his prior conviction as a misdemeanor he no longer qualified for the one-year sentence enhancement for the 2002 conviction, the Abdallah court distinguished its factual scenario from cases in which the defendant had already been sentenced. “This case is therefore distinguishable from recent cases holding that Proposition 47 does not apply retroactively to redesignate predicate offenses as misdemeanors for purposes of imposing sentencing enhancements where the original sentence was imposed before the enactment of Proposition 47. (See, e.g., Williams, supra, 245 Cal.App.4th at p. 463; People v. Carrea (2016) 244 Cal.App.4th 966, 971 [198 Cal. Rptr. 3d 753]; Ruff, supra, 244 Cal.App.4th at p. 943.) Indeed, those cases suggest that where, as here, a prior conviction is no longer a felony at the time the court imposes a sentence enhancement under section 667.5, Proposition 47 precludes the court from using that conviction as a felony merely because it was a felony at the time the defendant committed the offense. (See Williams, supra, 245 Cal.App.4th at p. 474.)”[3] (Abdallah at 747)

Turning to the present case, much like in Abdallah, this Court reduced the prior conviction before a conviction or sentencing in the current case. Thus, the prior conviction must be treated as a misdemeanor from the time it was reduced and thereafter. (See Park, supra, 56 Cal.4th at p. 795 “[W]hen a wobbler is reduced to a misdemeanor [under section 17], the offense thereafter is deemed a ‘misdemeanor for all purposes”; People v. Feyrer (2010) 48 Cal.4th 426, 439, 443, fn. 8 (redesignation under section 17 makes the wobbler “a misdemeanor from that point on.”). Consequently, since Mr. Hudson does not currently have a prior felony conviction, he cannot be convicted of the charge, and neither Count One or Count Two state a cause of action.

V. CONCLUSION

For the foregoing reasons, defendant respectfully requests the court sustain the demurrer.

Dated: January 4, 2016 Respectfully submitted,

By:______

Attorney for

PROOF OF PERSONAL SERVICE

I, the undersigned, hereby state:

That I was, at the time of the service of the papers herein referred to, over the age of eighteen years and not a party to within entitled action.

On the date below, I served within DEMURRER TO COMPLAINT by delivering to and leaving with the party(ies) below, a copy of said document.

DISTRICT ATTORNEY'S OFFICE