Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona PAUL V. ROOD Assistant U.S. Attorney Arizona State Bar No.004494 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1299-PHX-EHC Plaintiff, v. Manuel A. Gamboa, Defendant. GOVERNMENT'S RESPONSE TO THE MOTION TO SET ASIDE PLEA; STRIKE INDICTMENT; ALTERNATIVELY TO CORRECT SENTENCE; WAIVE SUBSEQUENT AND SUPERCEDING INDICTMENT AND PLEA TO SUPERCEDING INFORMATION; REQUEST FOR BAIL PENDING HEARING

The United States of America, through undersigned counsel responds to the defendant's

18 motions with a request that the court deny all motions and relief requested. This response is 19 based upon the following memorandum of points and authorities. 20 Excludable delay under 18 U.S.C. § 3161(h) may occur as a result of this motion or an 21 order based thereon. 22 23 24 25 26 27 28 Respectfully submitted this 28th day of August, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona S/Paul V. Rood PAUL V. ROOD Assistant U.S. Attorney

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1 Memorandum of Points and Authorities: 2 3 Timeliness: The United States filed a response to the motion on February 16, 2007. The response

4 raises the issue of timeliness. That issue is still being urged and the pleading of February 16, 5 2007, is incorporated by reference into this supplemental response. 6 7 Merits: Defendant claims his California conviction of July 14, 1999 for a violation of California

8 Penal Code Section 459 (Commercial Burglary) was in reality a misdemeanor. As such it could 9 not have been used in the Arizona prosecution, CR-04-1299-PHX-EHC as a felony triggering 10 the indictment for a violation of Title 18 U.S.C.§922(g)(1), Felon in Possession of a Firearm. 11 The defendant is incorrect. The California conviction was a felony. 12 Defendant argues his California conviction was a misdemeanor by virtue of the provisions

13 of Section 17 of the California Penal Code. He also claims that only a California criminal 14 attorney would be aware of the nuisances of Section 17. 15 Section 17 of the California Penal Code can in fact be used to determine the classification,

16 i.e., felony or misdemeanor of certain California crimes. The statute must be consulted in 17 conjunction with the actions of the trial court at sentencing. Section 17 indicates instances 18 where the trial court's actions make a crime a misdemeanor. The defendant believes that Section 19 17(b)(1) is applicable in his case and the conviction is a misdemeanor. He is mistaken. 20 Section 17(b) states in relevant part:

21 17. Felony; misdemeanor; infraction; classification of offenses 22 (a) A felony is a crime which is punishable with death or by imprisonment in the state prison.

23 Every other crime or public offense is a misdemeanor except those offenses that are classified 24 as infractions. 25 26 27 28
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1 (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state 2 prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under 3 the following circumstances: 4 (1) After a judgment imposing a punishment other than imprisonment in the state prison

5 (emphasis added). 6 (2) When the court, upon committing the defendant to the Youth Authority, designates

7 the offense to be a misdemeanor. 8 (3) When the court grants probation to a defendant without imposition of sentence and

9 at the time of granting probation, or on application of the defendant or probation officer 10 thereafter, the court declares the offense to be a misdemeanor. 11 Defendant believes that the action of the Judge on July 14, 1999, triggered subsection

12 (b)(1)of §17. He is incorrect. The operative words are "a judgment". 13 On July 14, 1999, no judgment was entered, the court document states, "IT IS

14 ORDERED that the imposition of sentence be suspended ... for a period of 3 years." 15 Probation was granted, and as a condition the defendant served 270 days of jail time. See 16 Attachment A. As there was no judgment entered, the crime was not designated a misdemeanor 17 by operation of law. It was, and is a felony. 18 This is not a new issue concerning California convictions. As stated, certain California

19 criminal convictions can be either misdemeanors or felonies, they are known as wobblers. 20 The Ninth Circuit as addressed this exact situation on several occasions. In United States

21 v. Robinson, 967 F.2d 287 (9th Cir. 1992), the defendant appealed his federal sentence claiming 22 that the district court erred when it concluded his California conviction was a felony. Robinson 23 argued that his California conviction for Battery on a Peace offer was a misdemeanor. The 24 Court concluded that as the defendant was placed on probation, the provisions of §17 (b) of the 25 California Penal Code, were not applicable. The court citing California state cases, see People 26 v. Banks, 53 Cal.2d 370 (1959), People v. Smith, 195 Cal. App.2d 735, (1961) and People v. 27 28
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1 Arguello, 59 Cal.2d 475, (1963) said that under the California law, the offense, where it can be 2 a felony or misdemeanor, is regarded as a felony until judgment. 3 Robinson was placed on three years of probation with a 9 month term in jail as a

4 condition of probation. He said the sentence imposed made the conviction a misdemeanor. 5 6 7 8 9 10 As is the instant case, the California court imposed a term of probation for defendant 11 Gamboa, with time in jail as a condition of probation. No judgment was entered. 12 The Ninth Circuit cited the Robinson case in at least two other cases, United States v. 13 14 15 Based upon the foregoing, the government asks the court to deny the defendant's motion 16 on timeliness and or the merits. 17 18 19 20 S/Paul V. Rood 21 22 23 PAUL V. ROOD Assistant U.S. Attorney CERTIFICATE OF SERVICE DANIEL G. KNAUSS United States Attorney District of Arizona Respectfully submitted this 28th day of August, 2007. Boumelhem, 339 F.3d 414, (9th Cir. 2003), and more recently in United States v. Bridgeforth, 441 F.3d 864, (9th Cir. 2006). The court stated: " In Robinson's case, the court suspended the imposition of sentence. Thus the court never entered a judgment. Furthermore, the court never declared Robinson's offense to be a misdemeanor, either when it granted probation or anytime thereafter. Because the requirements of §17(b)(1) and (3) of the California Penal Code were not met, we agree with the district court's holding." 967 F. 2d 287, 293.

24 I hereby certify that on August 28, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic 25 Filing to the following CM/ECF registrants: Clyde Munsell 26 s/Paul V. Rood 27 PAUL V. ROOD 28
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