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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16041
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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California Criminal Law- How to Re-calendar to Reduce Sentence? June

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California Criminal Law- How to Re-calendar to Reduce Sentence?
June 2012: Arrested for Receiving Stolen Property. Aug 2012: Pled Guilty to Felony receiving stolen property PC496(a) w/ Public Defender. Sentence 365 days; 3-year Probation. Still in Jail now but about to be released. Need to reduce Sentence to 364 days for immigration purposes. What to do to re-calendar?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
You have to file a motion for post conviction relief, which is a motion asking the court to reconsider your sentence and reduce the sentence. The problem is that you have pled guilty to a felony and you would need to move to have it reduced to a misdemeanor, as it is not about your sentence it is about the classification of what you pled guilty to. You pled guilty to a crime that has a potential sentence of greater than 365 days, not that you were sentenced to 365 days. Thus, you have to move the court to reduce the charge to a misdemeanor, which is a very difficult thing to get done even with an attorney, so you are going to need to contact a public defender again or get a private attorney to try to convince the court to reduce your charge to a misdemeanor and it is nothing to do with re-calendaring, it has to do with you moving for the reduction of the charge.


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Customer: replied 1 year ago.

In stead of filing a motion for post conviction relief, is there any other way to reduce to misdemeanor? Write a letter to the judge?

Expert:  Law Educator, Esq. replied 1 year ago.
I am afraid there is not. The judge will not read such a letter. The only way to seek the reduction, which the court may do for good cause, is through a motion for post conviction relief.
Customer: replied 1 year ago.

My goal is to reduce sentence to 364 days.


I read online that I can write a letter to Judge asking to re-calendar. Is it not true?

Expert:  Law Educator, Esq. replied 1 year ago.
No it is not true. Sure you can write a letter to the judge, which some websites will say, but those sites do not know or do not tell you that the judge cannot and will not read any such ex parte correspondence. Any official act you want the court to take must be done by motion filed in the court. Furthermore, just reducing your sentence to 364 days does not help your immigration problem, since your charge is still classified as a felony even if you got the days reduced to 180 days. What you have to change is the classification as a felony as I explained above and as I said a motion for relief is required, not asking the judge to "re-calendar" as there is nothing to put on the calendar.
Customer: replied 1 year ago.
Relist: Inaccurate answer.
I need an answer from a different Criminal Attorney.
Expert:  Law Educator, Esq. replied 1 year ago.

I am opting out and referring you to another attorney, but I am afraid that wherever you are getting your information about re-calendaring without moving to reduce the charge to a misdemeanor in a motion for post conviction relief is incorrect. I wish you all of the best in this endeavor and I am sure you will get things resolved in the manner that is legally appropriate and you will get the outcome the law provides for you. Best wishes.

Expert:  Zoey_ JD replied 1 year ago.

Hello Jacustomer,

The previous attorney was correct. A theft offense is considered a crime of moral turpitude. A conviction for a crime of moral turpitude where the maximum sentence allowed by law (not what you got, but what is possible) is more than a year is a deportable offense. You can see that for yourself in the Federal Code as it relates to deportation. See 8 USC 1227 section 2 (a) which says:

(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.
___
If you have been here for more than 5 years, this matter would still keep you from leaving the US and being able to return.

So as the previous expert tried to tell you, your case is much more serious than merely getting the case back on the calendar to knock a day off of your sentence. Here, the possible maximum for the crime of which you have been convicted is is 3 years of prison. So taking a day off your actual sentence doesn't mean a thing.

You have already been convicted of a crime. Getting your case back on the calendar will only get you told that you will have to file a petition to reverse your conviction. You should just file that in the first place asserting that your lawyer did not apprise you of your immigration consequences when taking a felony plea to a crime of moral turpitude. That's a serious enough allegation that it would probably get you a full scale hearing where your former attorney would have to take the stand and deal with your allegation. If the judge found a violation had occurred, he would reopen your case.

You would then have to go to trial or get a new lawyer to negotiate a plea to a misdmeanor or to an offense that isn't a crime of moral turpitude.

Customer: replied 1 year ago.

I already consulted with an immigration attorney; and based on that consultation, here is what I learned:



FranL: “A theft offense is considered a crime of moral turpitude.”



The crime at issue is “receiving stolen property”. Immigration law distinguishes a theft from receiving stolen property. Even if receiving stolen property could still be a crime involving moral turpitude, it is something my immigration attorney will deal with later; and it is certainly not the focus of my question.



FranL: “Here, the possible maximum for the crime of which you have been convicted is is 3 years of prison.”



In CALIFORNIA, which I mentioned TWICE in my question, PC 496(a) states:



496 (a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than ONE year.



Thus, the possible maximum … is ONE year, not three.



FranL: ”So taking a day off your actual sentence doesn't mean a thing.”



Well, it could mean the whole world to me because it could make a difference between mandatory detention and being released on bail, which, in reality, worries me even more than deportation.



According to my immigration attorney, avoiding an aggravated felony is critical because of its severe impact such as mandatory detention pending removal. Crimes of Violence are aggravated felonies if a court imposes a sentence of imprisonment of one year or more.



My immigration attorney says that the definition of Crimes of Violence is highly arguable and heavily litigated in court. So, even before trying to argue whether receiving stolen property is a crime of violence, I should reduce the sentence to 364 days to be extra safe. A reduction to 364 days has been done in many criminal courts in California. The immigration attorney told me to contact the public defender. But I wanted to find out more on how to reduce it before speaking with the public defender.



My immigration attorney also says that the person at issue is likely deportable due to a crime involving moral turpitude; but even if he is deportable, he has several “relief” options available, which could help him stay in the US.



That is why I did not ask whether or not reducing by 1 day would help. I simply asked how to reduce it.



Instead of answering on how to reduce it, you wrongly analyzed my case with assumption of your own and gave me the wrong or, to say the least, sketchy “immigration” answers, which is not the focus of my “criminal” question.



The previous attorney “at least” answered in the proper context- criminal law. You, on the other hand, turned it around to an immigration law question; or at least devoted most of your answers to the context of immigration law.



These are good reasons for me to click on “bad service” due to “inaccurate” answers. I will not do that if you simply opt out and refer this to other criminal attorneys practicing in California.



I’m not trying to be difficult. I have never clicked on “bad service” until today. I have been giving “excellent service” or “good service” to all of the answers (more than 20) I have received on JustAnswer thus far.



All I am asking for is a proper answer. Thank you.

Expert:  Zoey_ JD replied 1 year ago.
Hello,

The statue is a wobbler. It is punishable by 18 months, 2 years, or 3 years in state prison or by up to a year of county jail.

I will be happy to opt out for a California lawyer.

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