Free Reply to Response - District Court of Arizona - Arizona

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CLYDE S. MUNSELL Attorney at Law (CA BAR 51213) 284A Third Avenue Chula Vista, CA 91910 Telephone: (619) 224-3151 Facsimile : (619) 224-6775 e-mail: [email protected] Attorney for Defendant, MANUEL A. GAMBOA Pro Hac Vice

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,) Plaintiff,

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) DEFENDANT'S REPLY TO ) GOVERNMENT'S OPPOSITION TO ) DEFENDANT'S REQUEST FOR ) RULING TO SET ASIDE ) INDICTMENT AND SENTENCE; ) ALTERNATIVELY TO TERMINATE ) OR MODIFY CONDITION(S) RE ) SUPERVISED RELEASE

COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, and does hereby respond to the Opposition to Motion as filed by the Government on or about August 28, 2007. Respectfully Submitted this 31st day of August, 2007.

/s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa

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MEMORANDUM OF POINTS AND AUTHORITIES

LEGAL ARGUMENT A. MOVANT OBJECTS TO THE ADMISSION OF THE OPPOSITION FILED HEREIN AS THE SAME IS UNTIMELY AND NOT ORDERED BY THE COURT Defendant GAMBOA, moving party herein, objects to the Government's Opposition, in its

7 8 9 10 11 12 13 14 15 16 17 the government to file a response. At that time, the Court stated "and I am not ordering it now". 18 19 20 21 As promulgated under Rule 3, 22 23 24 25 26 27 28 "A motion under these rules shall be filed in the office of the clerk of the district court...... Upon receipt of the motion and having ascertained that it appears on its face to comply with rules 2 and 3, the clerk of the district court shall file the motion and enter it on the docket in his office in the criminal action in which was entered the judgment to which it is directed. He shall thereupon deliver or serve a copy of the motion together with a notice of its filing on the United States Attorney of the district in which the judgment under attack was entered. The filing of the motion shall not require said United States Attorney to answer the motion or otherwise move with respect to it unless so ordered by the court." (emphasis added). Resultingly, the Government does not get to take a second bite of the apple nearly six months later, and for the first time herein, raise objection on the merits of Defendant's Motion. was untimely. At the time of hearing of Defendant's Motion, (March 16, 2007), the Government specifically and expressly objected to the hearing on the ground that the Court had not "Ordered" entirety as being untimely, and such opposition was specifically not ordered by the Court. The present Motion, at least as it relates to the Defendant's request that the indictment and plea agreement herein be set aside, was filed with this Court on February 9, 2007. Thereafter, on or around February 12, 2007, the Government filed opposition to that Motion; its first bite of the apple. At that time, the only "objection" raised by the government was that Defendant's Motion

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B. THE OPPOSITION SETS FORTH A COMPLETE MISINTERPREATION OF CONTROLING CASE LAW

As the Government so openly acknowledged at the time originally scheduled for hearing in this matter, it was wrong in its calculation of the appropriate sentencing guidelines, resulting in Mr. Gamboa having unjustly been confined for a period of nearly one year. Once again, the Government errs in its interpretation of the law governing these issues.

8 9 10 11 basis for its 922 conviction. As is patently clear within that document, the Defendant was placed 12 13 14 15 16 "Change of Plea form", utilized by the Courts throughout the County of San Diego in similar 17 18 19 20 21 22 that (1) there would be no state prison commitment; an (2) there would be no objection to local 23 24 25 26 27 28 time. Resultingly, that conviction, in and of itself, and pursuant to California state law, became, "for all purposes", a misdemeanor by sentence. California Penal Code § 17. Moreover, even if the argument could rationally be made that the sentencing was not a final judgment, it certainly became so at the expiration of the three (3) year probationary period. At no time could the court, despite having retained jurisdiction by way of probation, imposed a greater commitment, nor did circumstances, (filed in connection with Defendant GAMBOA's February 9, 2007 Motion), the "Agreement" entered into by the parties, and thereafter ratified and approved by the Court, specified that the sentence which could be imposed " could not exceed one year." (emphasis added). That plea was made in exchange for a commitment from the prosecution and the court on probation for a period of three (3) years, unlike the facts in Robinson where imposition of sentence was suspended "forever". Of equal importance, and as reflected in the Tahl Waiver form, commonly referred to as a Attached as Exhibit "A" to the Government's Opposition is a true and correct copy of the California court's sentencing Order in the case which the Government claims as the predicate

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the Court order any further or additional debilitating conditions. It is each of these facts which clearly and distinctly distinguish the base at bar from the Robinson case upon which the

3 4 5 6 plea form being the "contract" between the parties as to what the plea bargain shall be. In the 7 8 9 10 11 12 13 excess of one year. 14 15 16 17 Immediately, upon the Court's pronouncement of the sentence to county jail, (and in fact prior 18 19 20 21 22 23 24 converted to a misdemeanor "after a judgment imposing a punishment other than imprisonment 25 26 27 28 in the state prison." People v. Glee 82 Cal.App.4th 99; Pen. Code, § 17, subd. (b) (1). thereto by the very terms of the written change of plea agreement), the status was fixed as that of a misdemeanant. When a court acts under Penal Code section 17 to specify that a conviction shall be treated as a misdemeanor "for all purposes," that offense may not afterwards be pled as a prior felony conviction, even though the offense may have been originally punished as a felony. People v. Camarillo 84 Cal.App.4th 1386. Under Penal Code section 17, a felony is automatically In the matter at hand, Defendant's provisional status of a person convicted of a felony, at worst, existed only for the moment that the plea was entered, and sentencing deferred. event the Court is not inclined to honor the terms of the "contract", the Defendant would be free to withdraw his/her plea, an option not available under the Federal system. That, of course, did not occur, and Mr. Gamboa was sentenced to 270 days in custody, clearly a term of less than one year. In fact, the letters "NOLT" on the first page of the plea form signify "NO OBJECTION TO LOCAL TIME", guarantying probation, and guarantying that there could be no sentence in Government hinges its opposition. In California, it is the sentencing date which serves as the judgment date, the change of

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Under these circumstances, the conviction is, automatically and immediately, a misdemeanor by sentence pursuant to Penal Code section 17, subdivision (b) (1). (See People v.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 consideration by the Court, it is unsupported by case law. Moreover, it does not fully oppose 19 20 21 22 23 24 25 timely, and the lack of the proper and requisite felony prior fatal to the indictment. Accordingly, 26 27 28 the Court is warranted in setting aside the resulting Plea Agreement and Sentence herein. each of the alternative remedies pled by the Defendant, and one must be presume that those remedies are unopposed. Irrespective of the answer to those questions, the ultimate disposition rests with the unequivocal fact that the Defendant's "prior" was a misdemeanor by sentence and operation of law, and could not serve as the basis for a conviction under Section 922 herein. For the foregoing reasons, it is respectfully submitted that the Motion be considered the onset, the Government chose not to file any objection or opposition to the merits of the Motion itself, arguing only that the same was untimely. Now, six months later, and without the Court having requested a reply, the Government takes the opportunity to file opposition. That machination is untimely and impermissible. Assuming, for purposes of argument, that the government's opposition is subject to CONCLUSION Defendant's present Motion, having been filed within weeks of the discovery of the true characterization of the California conviction, is timely, and subject to review by this Court. From Hamilton (1948) 33 Cal.2d 45, 49; 198 P.2d 873; People v. Guiuan (1998) 18 Cal.4th 558, 569, fn. 4; 76 Cal.Rptr.2d 239; [where a defendant had previously been convicted of burglary and the sentence imposed for that crime was six months in the county jail, he stood convicted of a misdemeanor, not a felony.)

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In the alternative, Movant seeks the Court's termination of the condition of supervised release or a modification of those conditions presently in place.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Clyde S. Munsell Clyde S. Munsell, Attorney for Defendant Dated: August 31, 2007 Respectfully submitted,

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