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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20233
Experience:  Handling criminal and probation matters for over 14 years.
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I was convicted of 1 felony count of intent to sell marijuana

Resolved Question:

I was convicted of 1 felony count of "intent to sell" marijuana without a CA-State license to an undercover without a prescription. I was stressed about finances and needed money. With no job and no BAH coming in from the GI Bill that month, the pressure was mounting with a wife and a newborn to take care of.
I have been evaluated by psychologists and psychiatrists who conclude that I fit the criteria of a war veteran with PTSD. I recently submitted a claim to the VA for PTSD and am waiting to be rated.
Does California Penal Code section 1170.9 apply to me?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.

JB Umphrey :

Thank you for using JustAnswer!

JB Umphrey :

I am sorry to learn of your circumstances. From what you've described, you have already been sentenced.

JB Umphrey :

CA Penal Code 1170.9 does not apply to you because that law requires, in part: "the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service."

JB Umphrey :

In your situation, you were already sentenced.

JB Umphrey :

1170.9 is only available to be used pre-sentencing .... not post-sentencing.

JB Umphrey :

So, the answer to your question is, regrettably, "no."

Customer:

I was encouraged by another veteran to talk to my public defender about this. I was never evaluated for ptsd before this happened.

JB Umphrey :

You can certainly contact your public defender if you'd like.

JB Umphrey :

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.


 

Customer:

What about the entrapment?

JB Umphrey :

There's no entrapment, in the legal sense, from what you've described.

Customer:

I was deliberately lied to in order to break the law.

JB Umphrey :

There is no entrapment, in the legal sense, from what you've described.

Customer:

when an officer of the law deliberately coaxed someone to break the law and they do not have a history of breaking the law, that constitutes entrapment.

JB Umphrey :

However, that issue is now moot anyway, since you pled guilty.

Customer:

I did plead guilty because I didn't have the money to pay for a lawyer to go to trial. The public defender gave me something to fear when he denied entrapment and told me if I go to trial, I would be looking at 2 years minimum behind bars.

Customer:

He encouraged that I plead guilty to the least of 3 offenses so that it did not go to trial or else I was looking at jail time.

JB Umphrey :

The information given to you by your public defender is correct.

JB Umphrey :

Of course, you had the right to plead not guilty and take the case (all charges) to jury trial and have the jury decide your guilt/non-guilt.

JB Umphrey :

Your attorney made a recommendation and you took that recommendation.

JB Umphrey :

There's no going back and undoing that now.

Customer:

And he told me I didn't have a chance although I insisted on arguing entrapment

Customer:

I have been encouraged to file an appeal

JB Umphrey :

Have I answered your original questions?

Customer:

This goes a little bit deeper than the original questions. My question is, what can I do as a next step in my favor?

Customer:

You know what the circumstances are and you know what my side of the story is. I've been as much of an open book as I can be. If you're working in my favor I need to know what I can do next that will help myself in this situation.

JB Umphrey :

If you want to try to undo something, you first have to try to file a motion to withdraw your guilty plea.

Customer:

And that means I would have to plead insanity correct?

JB Umphrey :

You do that with your current judge. It's not an appeal.

JB Umphrey :

No, it does not mean that you would have to plead insanity.

JB Umphrey :

You will have to convince the judge that you did not enter your guilty plea knowingly and voluntarily.

Customer:

Really? This is the first I am hearing this.

JB Umphrey :

You will also have to demonstrate to the judge why you are not guilty of the offense.

Customer:

In knowing what you know of my situation, what are the possibilities of being deemed not guilty?

Customer:

I will be held in contempt of court then for committing perjury if I demonstrate I did not enter into the plea knowingly and voluntarily.

JB Umphrey :

From the facts that you've described, I do not see a basis to withdraw the guilty plea at this stage of the game.

Customer:

So what are my practical options then?

JB Umphrey :

You can attempt to withdraw the plea and ask that any future plea be taken pursuant to 1170.9.

Customer:

And that would work?

JB Umphrey :

You may want to hire a local criminal defense attorney to assist you in preparing the paperwork to pursue that strategy.

Customer:

Would it be "considered"?

JB Umphrey :

A judge has to consider all motions.

JB Umphrey :

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.

Customer:

Oh boy...racking up the debt already.

Customer:

I appreciate your time. I understand and will take your statement under advisement. Have a good 4th.

JB Umphrey :

Thanks, XXXXX XXXXX you.

JB Umphrey :

You can select ACCEPT to close this thread.

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