Free Motion to Vacate - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12

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 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) NOTICE OF MOTION AND MOTION ) TO SET ASIDE PLEA; STRIKE IN) DICTMENT; ALTERNATIVELY TO ) CORRECT SENTENCE; WAIVE ) SUBSEQUENT AND SUPERCEDING ) INDICTMENT AND PLEA TO SUPER) CEDING INFORMATION; REQUEST ) FOR BAIL PENDING HEARING {Oral Argument Requested}

COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, and does hereby respectfully move the Court for an Order (1) Striking the Indictment; (2) Correcting Sentence; and (3) Setting Bail Pending Hearing. This Motion is supported by the Memorandum of Points and Authorities attached hereto.

23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa Respectfully Submitted this 9th day of February, 2007.

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007

Page 1 of 12

1 2 3 4 5 1.

MEMORANDUM OF POINTS AND AUTHORITIES

FACTUAL HISTORY OF THE CASE Defendant, MANUEL A. GAMBOA was named in a two-defendant information

charging him with the sole count of being a felon-in-possession on or about December 4, 2004. 6 7 8 9 10 11 conviction in 1999, in the State of California, Superior Court Case No. SCD 141849. That 12 13 14 15 16 is currently scheduled for release from the Federal Correctional Institution at Terminal Island, 17 18 19 20 21 22 23 and requisite factual basis, and must be set aside. 24 25 26 27 28 2. ISSUE Does a charged felony, which resulted in a misdemeanor by sentence plea, form the necessary basis to satisfy the "felon" requirement of Section 922 (g) (1)? San Pedro, California on March 13, 2007, and transfer to a halfway house facility through the end of his term of September 17, 2007. In reviewing the 1999 California conviction, it has become apparent that defendant was not, in fact, at the time of the alleged misconduct in Arizona, a convicted felon under California law. As such, the Judgment entered herein is flawed in that it is not founded upon the necessary conviction, as alleged, served as the disabling event which categorized defendant as a felon-inpossession. In connection with that plea, Mr. Gamboa was sentenced to 27 months imprisonment. He On April 28, 2005, Mr. Gamboa entered a guilty plea to that charge, Count 2 of the Indictment, Title 18, U.S.C. 922(g)(1). As reflected in the Plea Agreement and within the Court record, the underlying basis for that conviction was an admitted allegation that the defendant had suffered a prior felony

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 2

Page 2 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

3. (1)

LEGAL ARGUMENT ANY VIOLATION OF 922 REQUIRES AN AFFIRMATIVE FINDING THAT THE ACCUSED WAS, AT THE TIME OF THE OFFENDING CONDUCT, A CONVICTED FELON

Title 18. Crimes and Criminal Procedure § 922 (g) proscribes, in pertinent part, that: "It shall be unlawful for any person(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;"

Similarly, California Penal Code § 12021 provides as follows: C. (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

To determine whether a crime has been committed under either statute, there must first be an affirmative showing that the party so charged has received a preceding and disabling felony conviction. That determination varies, dependant to a certain degree on the laws of the State where the criminal conviction was handed down. B. THE LAWS OF THE STATE OF CALIFORNIA DEFINE DEFENDANT'S 1999 CONVICTION AS A MISDEMEANOR AND NOT A FELONY AS ALLEGED

California Penal Code, § 17. sets out the qualifying language as to what constitutes a 23 24 25 26 27 28 felony in that State. Specifically, "(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 3

Page 3 of 12

1 2 3 4 5 6 7 8 9 10 11 12

(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (emphasis added.) (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." Whether a crime is a felony in California is not determined by its nature. It is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor, except as the offense is subject to the circumstances in Penal Code Section 17, subdivision (b), that render it a misdemeanor for all purposes. Penal Code, §17, subd. (a); People

13 14 15 16 17 18 19 20 21 22 23 Attached hereto as Exhibit "A" is a true and correct copy of the Tahl Waiver form, 24 25 26 27 28 commonly referred to as a "Change of Plea form", and utilized by the Courts throughout the County of San Diego in similar circumstances. This Agreement, somewhat akin to a Rule 11 plea, was entered into by the Deputy District Attorney, (now Superior Court Judge) Tim Walsh, the defendant's then attorney of record, Roland J. Haddad, and the defendant himself. California, County of San Diego, with certain State felonies, defined as being punishable by a term in excess of one year. However, on June 3, 1999, Mr. Gamboa agreed to plead guilty to second-degree burglary, with the express agreement that the sentence could not exceed one year. As noted hereinabove, in 1999 Mr. Gamboa was charged in the Superior Court of v. Nguyen (1997) 54 Cal.App.4th 705, 71; 63 Cal.Rptr.2d 173. C. THE PARTIES' INCORRECT BELIEF AS TO THE CHARACTERIZATION OF THE 1999 CONVICTION RESULTED IN THE IMPOSITION OF AN IMPROPER JUDGMENT AND SENTENCE

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 4

Page 4 of 12

1 2

As that form reflects, those parties, together with the sitting judge in that case, Hon. Wesley Mason, collectively agreed that the sentence which could be imposed could not exceed

3 4 5 6 7 8 9 10 11 12 13 otherwise, a person such as plaintiff stands convicted of a misdemeanor, not a felony, for all 14 15 16 17 plea form being the "contract" between the parties as to what the plea bargain shall be. In the 18 19 20 21 22 23 24 excess of one year. 25 26 27 28 ////// ////// 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 purposes upon the court so declaring." In California, it is the sentencing date which serves as the judgment date, the change of California Courts have consistently held that once a court has reduced a wobbler to a misdemeanor pursuant to Penal Code section 17, the crime is thereafter regarded as a misdemeanor "for all purposes." People v. Camarillo 84 Cal.App.4th 1386. Stated bluntly therein, "this unambiguous language means what it says, and unless the Legislature states one year. (emphasis added). That plea was made in exchange for a commitment from the prosecution and the court that (1) there would be no state prison commitment; an (2) there would be no objection to local time. Resultingly, that conviction, pursuant to California state law, became, "for all purposes", a misdemeanor by sentence. California Penal Code § 17.

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 5

Page 5 of 12

1 2 3 4 5 6 section 12021. He had earlier pled guilty to a Vehicle Code wobbler offense, but the trial court 7 8 9 10 11 12 13 dicta the operation and effect of a felony conviction to a wobbler offense that may subsequently 14 15 16 17 retention in the trial court of jurisdiction over the defendant and the cause of action against him 18 19 20 21 22 23 24 conviction may also be set at nought, except for expressly defined purposes, when jurisdiction 25 26 27 28 and control over the defendant and the cause of action have been retained in the court under the probation law (with or without pronouncement of sentence) and the probation procedures have been fully executed. If jurisdiction over the subject and res of the action ceases to exist in the court (trial or appellate) the judgment becomes final and the trial procedures have ended. . . . Case 2:04-cr-01299-EHC Document 61 Filed 02/13/2007 6 Page 6 of 12 in a large area of crimes by virtue of the probation procedures. It is apparent from mere perusal of the pertinent legislation that a verdict or plea of guilty in a superior court criminal case is not ipso facto a final conviction. If judgment is pronounced it may be reversed on appeal and set completely at naught; thereby, if there is not a new trial and a new conviction the defendant will be a person who has not ­ for any purpose whatsoever --- been convicted of a felony. The be reduced to a misdemeanor as follows: "An integral and important part of the penological plan of California is the discretionary suspended imposition of sentence and ordered him to probation plus 12 months in the county jail. Defendant completed probation without violation, and argued these facts demonstrated he had been convicted only of a misdemeanor. In that action, the court disagreed, finding he remained convicted of a felony because he failed to take the available procedural steps to reduce his conviction to a misdemeanor. However, in reaching its conclusion, the court explained in Reiterating dicta contained in People v. Banks (1959) 53 Cal.2d 370; 1 Cal.Rptr. 669, the Supreme Court shed light on how Penal Code section 17 operates. In that case, a defendant challenged his conviction of unlawfully possessing a firearm by a felon under Penal Code

1 2 3 4 5 6 authority pending administration of the probation plan, or (2) it may suspend (refrain from) the 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 prescribed by the court as terms or conditions of probation. . . . He does, however, for some 22 23 24 25 26 27 28 specific purposes --- for administration of the probation law and other laws expressly made applicable to persons so situated --- stand convicted of a felony. For example, under the statute probation may be revoked at any time (Pen. Code, § 1203.3) and the probationer may be arrested without warrant. (Pen. Code, § 1203.2; see also Pen. Code, § 1203.2a.) Such conviction, in itself and without pronouncement of judgment, establishes a status which is attended by certain "By contrast, the defendant whose guilt has been established (by plea, finding or verdict) but who has not been sentenced to prison, i.e., where probation has been granted and the proceedings have been suspended without entry of judgment, is subject to no disabilities whatsoever except those specifically declared by some other provision of law or affirmatively ". . . Upon pronouncement of `sentence of imprisonment in a state prison for any term less than life' (Pen. Code, § 2600) the defendant acquires the legal status of a person who has been both convicted of a felony and sentenced to such imprisonment. . . . pronouncement of judgment, subject to administration of the probation laws. Of course in the latter case, it does not suspend execution of the judgment and withhold commitment to the adult or other prison authority because without having pronounced judgment it has no power to commit the defendant to the prison authority. . . . "When the verdict or plea of guilty comes in, the trial court, if it chooses to retain jurisdiction under the probation statutes, may either (1) pronounce judgment and suspend its execution; i.e., refrain from issuing a commitment of the defendant to the adult or other prison

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 7

Page 7 of 12

1 2

disabilities. Here, upon his plea of guilty in the [prior case], the defendant acquired the status --- not then final, and

3 4 5 6 essential attribute of that class was only provisional; it could, in due course, have been changed 7 8 9 10 11 12 13 14 15 16 17 shall be treated as a misdemeanor "for all purposes," that offense may not afterwards be pled as a 18 19 20 21 22 23 24 25 26 27 28 three years. Additionally, no additional jail time was left in the balance in the event Movant As in the matter of People v. Banks, supra, 53 Cal.2d at p. 387, Mr. Gamboa's case is distinguishable in that the court did not indicate an intention to impose a felony sentence. On the contrary, the defendant was informed by the prosecutor, prior to entering his plea of guilty, that his sentence would be one year or less in the county jail with probation to terminate at the end of 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 converted to a misdemeanor "after a judgment imposing a punishment other than imprisonment in the state prison." People v. Glee 82 Cal.App.4th 99; Pen. Code, § 17, subd. (b) (1). 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. Immediately, upon the Court's pronouncement of the sentence to county jail, (and in fact prior 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 to that of a misdemeanant by pronouncement of a sentence to the county jail or for a fine. And even the record of misdemeanor conviction could have been changed to not guilty and the accusation dismissed by compliance with section 1203.4. conditionally subject to expungement but nevertheless existing --- of a person convicted of a felony. He was a member of that class at the time he was admitted to probation. It is true that the

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 8

Page 8 of 12

1 2

violated probation. This record supports the inference that the sentencing court did not intend to retain jurisdiction over Defendant with the possibility of later imposing a prison sentence. Under

3 4 5 6 misdemeanor pursuant to Penal Code section 17, subdivision (b) (1). (See People v. Hamilton 7 8 9 10 11 12 13 14 15 was a felony for purposes of various federal statutes, have applied the same test as that utilized 16 17 18 19 20 21 Cir. 2004) (holding that a wobbler was not an aggravated felony under 8 U.S.C. § 1101(a) 22 23 24 25 26 27 28 (43)(B) because the state court had imposed a sentence of imprisonment in the county jail, and thus the conviction was a misdemeanor under section 17(b)(1) of the California Penal Code); Garcia-Lopez v. Ashcroft 334 F.3d 840, 845 (9th Cir. 2003) (holding that a wobbler qualified for the petty offense exception to deportation under 8 U.S.C. § 1182(a)(2)(A) (ii)(II) because the state court had declared it a misdemeanor under section 17(b)(3). by the California courts. Specifically, where sentencing was deferred, and resultingly no judgment entered upon which to base an automatic reduction to misdemeanor by sentence, the felony as a basis for a subsequent violation of a federal statute has stood. United States v. Robinson 967 F.2d 287, 292-93 (9th Cir. 1992). Ferreira v. Ashcroft 382 F.3d 1045, 1051 (9th D. THE FEDERAL COURTS HAVE EXAMINED SIMILARLY SITUATED CASES WITH FINDINGS CONSISTENT WITH STATE COURT DETERMINATIONS Federal Courts have reviewed this very issue, and in so considering whether a wobbler (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.) these circumstances, it can only be presumed that the sentencing court granted probation and ordered probation to terminate upon a date certain, automatically rendering the crime a

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 9

Page 9 of 12

1 2

In all of these cases, the Court was required to determine the maximum potential penalty for the conviction at issue. To answer that question, it first looked to how the state court treated

3 4 5 6 imprisonment for a term exceeding one year" is defined as follows: 7 8 9 10 11 12 13 14 15 16 17 termination of probation in that matter. Consistent with the holding in United States v. Kahoe 18 19 20 21 22 The Court addressed precisely this situation in United States v. Boumelhem 339 F.3d 23 24 25 26 27 28 414, 425-27 (6th Cir. 2003). There, as here, the defendant had pled to a so-called "wobbler" offense in a California court--that is, an offense where "the sentence imposed determines the classification under state law as either a misdemeanor or felony." Boumelhem, 339 F.3d at 426. Explaining that this state-law determination is relevant to a federal conviction under § 922(g), because federal law provides that a "crime punishable by imprisonment for a term exceeding one 134 F.3d 1230, 1233(4th Cir. 1998), the controlling state determination operates only prospectively, so that after the expungement, pardon, or restoration of civil rights that felony conviction no longer serves to impose a firearm disability. Again, in the case at bar, no such disabling language exists in Defendant's California case, and any civil rights expressly removed or restricted were effectively restored upon the `What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms" Looking further into the language contained in 18 U.S.C. § 921(a) (20), it is expressly stated the wobbler. In 1986, Congress amended the statute to provide that the term "crime punishable by

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 10

Page 10 of 12

1 2

year" does not include "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 339 F.3d at 425-26 (quoting 18

3 4 5 6 7 8 9 10 11 12 13 noted by the Court, when the California court sentenced a Defendant to something other than a 14 15 16 17 CONCLUSION 18 19 20 21 22 23 24 25 26 27 28 It is respectfully submitted that this lack of the proper prerequisite felony is fatal and the indictment should be set aside and Mr. Gamboa released forthwith from his custodial circumstances. Alternatively, recognizing that there exists an earlier Arizona state conviction charge of being in possession of a controlled substance in Mr. Gamboa's criminal history, it is possible Both the Indictment and the Plea Agreement in the matter at hand is suspect, since each must stand, if at all, on Mr. Gamboa having been previously convicted in a 1999 California case of a felony for which he received a sentence punishable by imprisonment for a term exceeding one year. Both, of course, must fail. felony prison term, section 17(b)(1) of the California Penal Code operated to convert that offense to a misdemeanor "for all purposes." The reasoning in Boumelhem should apply with full force here, and as likewise applied in United States v. Bridgeforth 441 F.3d 864, where that Defendant's prior conviction, (unlike that in Boumelhem), did result in a judgment imposing a punishment, and upon imposition of that sentence, the wobbler became a misdemeanor "for all purposes" under section 17(b)(1). As U.S.C. § 921(20) (B)). "Accordingly, if the defendant's conviction "were classified as a misdemeanor under California law, it would be punishable only by imprisonment not exceeding one year," and hence would be excluded from the federal definition of a "crime punishable by imprisonment for a term exceeding one year." 339 F.3d at 426.

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 11

Page 11 of 12

1 2

that this charge, rather than the California state charge, could have been used to support the underlying plea, although it was not. If it were, through agreement or superseding information,

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 Gamboa, it is respectfully requested that a bail amount, not to exceed $50,000, be set pending the hearing in this matter. Dated: February 7, 2007 Respectfully submitted, the net effect would have been the same, except Mr. Gamboa's criminal history would have been lessened, and the absence of a prior felony would not have elevated him in the sentencing guidelines. Thus, an appropriate and proper recalculation of his sentence would result in warranting his immediate release. In light the of the strong likelihood of the relief sought being made available to Mr.

Case 2:04-cr-01299-EHC

Document 61

Filed 02/13/2007 12

Page 12 of 12