San Fernando, Statutory Rape Reclassified as Misdemeanor

In March of 2010, our client, then 24 years old, was arrested by the Los Angeles Police Department, Devonshire Station, on suspicion of several sex offenses.  He was later charged with nine counts of violating Penal Code §§ 261.5(d) (“sexual intercourse with a minor under 16 years of age,” also known as statutory rape), 289(I) (“forcible sexual penetration with a foreign object’), 288a(b)(2) (“oral copulation by force when one is a caretaker of another”), and 288.2(b) (“sending or distributing harmful matter to a minor”).

In  2012 in the San Fernando Superior Court, after two years of plea bargaining, our client was convicted of violating Penal Code § 261.5(d).  The other eight counts were dismissed.

This crime is known as a “wobbler” as far as it can be filed as a felony or a misdemeanor.  In 2012, when our client entered his plea, he pled to a felony.

The victim was a friend of our client’s girlfriend.  She was 14 years old.  According to the plea bargain, our client, then 26 years old, was placed on five years of formal probation, with one year in county jail with credit for 242 days (121 days actual custody and 121 days good time / work time), six months of sex offender classes, and payment of restitution to and a stay away order from the victim.

In 2018, our client completed the terms of probation.

In 2021, he called up our office, inquiring about having his felony conviction for statutory rape reduced to a misdemeanor and then expunged.  He was now 35 years old and working in a grocery store, where he was a clerk.  He lived with his elderly mother who suffered from chronic knee inflammation that made walking very difficult.  While his mom was currently still working, she planned to stop working soon due to the condition and then our client would need to find a higher-paying job to meet household expenses.

 

He had ambitions of leaving the store and applying for other jobs, but he understood being a convicted felon, convicted of a sex offense no less, would make things difficult.

He described the facts of the case with Greg Hill and Greg explained what Penal Code § 17(b)(3) allowed, but cautioned that San Fernando Superior Court can be very tough.  The client was well aware of this, as the San Fernando Court has had such a reputation for decades.  Greg further explained that expungement of the conviction is statutorily barred under Penal Code § 1203.4 when 261.5(d) is a felony, but is permitted when 261.5(d) is a misdemeanor.

Greg also explained what expungement did actually do, just to clarify for the client that it does not erase or delete the record of the case being filed against our client, but did allow our client to legally enjoy the fiction of being lawfully permitted to state “no” when asked if he had ever been convicted of the crime.

The client then retained Greg Hill & Associates to prepare, file and serve a motion for reclassification of his felony conviction for violation of Penal Code § 261.5(d).  The motion included not just the judicial council form, but a supplemental memorandum of points and authorities that laid out a brief factual background of the case, the statutory authority for the judge to order the reclassification of the felony as a misdemeanor and then the application of the statute to the facts, including a declaration from our client explaining why he requested such a reduction in the conviction to a misdemeanor and then expungement.

Once our office finished the motion and the client signed his declaration, we filed it in the San Fernando Superior Court, served the San Fernando district attorney’s office and nervously waited for the criminal clerk’s office to assign the matter to a judge and a hearing date.

About four weeks later, after filing the motion in early 2022, however, our office unexpectedly received a signed order reducing the felony to a misdemeanor and expunging the conviction.  There was no hearing at all.  The judge, perhaps motivated to reduce people in the courthouse spreading COVID-19, ruled on the motion in chambers without even a hearing.

We shared the signed order with the client, who was very happy with this ruling on both the reduction and the expungement.

For more information about Penal Code § 17(b)(3) motions to reclassify a felony as a misdemeanor, please click on the following articles: