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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

p CENTRAL DIVISION, COUNTY COURTHOUSE, 220W. BROADWAY, SAN DIEGO, CA 92101
EAST COUNTY DIVISION, 250 E. MAIN ST., EL CAJON, CA 92020
NORTH COUNTY DIVISION, 325 S. MELROSE DR., VISTA, CA 92081
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PORRX7ficeg Oh"
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El SOUTH COUNTY DIVISION, 500 3RD AVE., CHULA VISTA, CA 91910
cie' of the-mymek Li
FEB 1 4 2018
PEOPLE OF THE STATE OF CALIFORNIA
Filed By: S. Billings
DEFENDANT SUPERIOR COURT CASE NUMBER
EDWARD MIRICK CR43446

MINUTES, RESPONSE, AND ORDER ON DA CASE NUMBER

PETITION FOR RESENTENCING

TO BE FILLED OUT BY THE COURT ONLY:

Defendant has filed a petition for resentencing/sentence reduction and alleges pursuant to Pen. Code § 1170.18.
Defendant 0 has completed his/her sentence and petitions to have the felony counls) designated as a misdemeanor(s).
0 is stilt serving a sentence on the felony count(s) and petitions for resentencing.

TO BE FILLED OUT BY THE PROSECUTING AGENCY ONLY:

'The District Attorney responds:
0 The District Attorney agrees that the following counts are eligible for resentencir 0-eduction: Count One PC470
0 Defendant is not entitled to the relief requested.
Reason: 0 No counts eligible under Pen. Code § 1170.18
0 Defendant has at least one prior conviction for an offense under Pen. Code § 887(e)(2)(C)(iv) or for an offense
requiting registration pursuant to Pen. Code § 290(c).
0 A hearing should be held to determine 0 whether defendant poses an unreasonable risk of danger to public safety
D other.
Defendant has completed his/her sentence and is entitled to have the felony conviction(s) designated as a misdemeanor(s).
0 Defendant is still serving his/her sentence and is entitled to resentencing.

Date Feb 14, 2018 1-Iarrison Kennedy 139isiry ugroai try Ittnisan Ferateely
Roe 20M11214 611991 -Otte'

Signature of Deputy District Attorney

COURT ORDER

0 Petition is denied.
Lhe Petition is granted and the counts identified above are ordered designated as a misdemeanor conviction(s).
0 Formal probation is now ordered converted to Probation to the Court Same Terms and Conditions.
0 The matter is ordered set for hearing or resentencing on at 1:30 p.m. in Department of the:
0 Central County Courthouse, 220W. Broadway, San Diego, CA 92101
0 East County Regional Center, 250 E. Main St., El Cajon, CA 92020
0 North County Regional Center, 325 S. Melrose Dr., Vista, CA 92081
0 South County Regional Center, 500 3rd Ave., Chula Vista, CA 91910
Resentencing does not permit a person to own, possess, or have in his or her custody or control any flrj Qen. Code
§1170.18(k)).

Judge of the upeno ourt

CLERK'S CERTIFICATE
ceL If
The foregoing document consisting of page(s), is a full, true, and correct copy of the D original
[]copy on file in this office.

Clerk of the Superior Court

a
Date: by Deputy
(

SOSC CR81-278 Now 11/14) MINUTES, RESPONSE AND ORDER ON Pert Code g 1170 18
Opliorias Form PETITION FOR RESENTENCING

https://connect.xfinity.com/appsuite/Mapp=io.ox/mail/detail&folder=defaultO/INBOX&id=574082 1/1
 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and adaess) oNt
Michael Begovich, Deputy Public Defender, SBN: 134967
450 B Street, Suite 900
San Diego, CA 92101
TELEPHONE NO 619-338-4802 FAX NO (Optonat) E

5 Non of Ma Seporlor Court

michael.begovich@sdcounty.ca.gov
E-MAIL ADDRESS (Optional).

EDWARD MIRICK
ATFORNEY FOR (Neate):
APR 24 2018
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
El CENTRAL DIVISION, COUNTY COURTHOUSE, 220W. BROADWAY, SAN DIEGO, CA 92101
0 EAST COUNTY DIVISION, 250 E. MAIN ST., EL CAJON, CA 92020 By: T. Thomas, Depu
o NORTH COUNTY DIVISION, 325 S. MELROSE DR., VISTA, CA 92081
0 SOUTH COUNTY DIVISION, SOO 3RD AVE., CHULA VISTA, CA 91910
PLAINTIFF
PEOPLE OF THE STATE OF CALIFORNIA
DEFENDANT SUPERIOR COURT CASE NUMBER
EDWARD MIRICK CR43446
CITY/DISTRICT ATTORNEY NUMBER
PETITION FOR DISMISSAL - PETITION
(FELONY/MISDEMEANOR - PC 1203.4 OR 1203.4a)

Defendant's date of birth 11/29/1951

Defendant was convicted on 12/08/1978 of the following El felony El misdemeanor charges: PC470 / C-f. 3
['Defendant requests reduction of the applicable felony charge(s) to misdemeanor(s) per Pen. Code § 17 (separate
moving papers are attached).

E1 Petition for relief per Pen. Code § 1203.4: Defendant is entitled to the relief requested based on the following:
Probation was granted and has expired or been terminated (ending on 04/01/1981 ); defendant is not now serving a
sentence on any offense, is not on probation for any offense, and is not now charged with committing any offense; and:
El defendant has fulfilled the conditions of probation for the entire period of probation; or
kj defendant has been discharged prior to termination of probation; or
Li relief should be granted in the interest of justice (declaration stating reasons attached).
El Petition for relief per Pen. Code § 1203.4a: Defendant is entitled to the relief requested based on the following:
Defendant was convicted of a misdemeanor and probation was not granted; more than one year has lapsed since the
pronouncement of judgment; defendant has fully complied with and performed the sentence of the court, is not currently
serving a sentence on any offense, and is not currently charged with committing any offense; and
CI since the pronouncement of judgment, defendant has lived an honest and upright life and has conformed to and
obeyed the laws of the land; or
[11 relief should be granted in the interest of justice (declaration stating reasons attached).

I certify under penalty of perjury under the laws of the State of California that the foregoin true a

Dated: Li- ---13 —Ifrat J20, .0 by

(Gay) J (Slate) Pelitione y for Petitioner

Petition filed must be served on the prosecuting agency.

If the court grants the relief herein requested, defendant may have the right to petition for a Certificate of Rehabilitation and
Pardon pursuant to Pen. Code § 4852 et. seq. An information packet (SDSC #PKT-016) regarding this may be obtained from
the court or found at www.sdcourt.ca.qov.

NOTICE OF HEARING

Defendant's petition will be heard on at in Dept.

Clerk of the Superior Court

Date: by , Deputy
Distribution by: on to 0 Prosecutor— Courtesy Copy 0 Defendant 0 Probation 0 Pre-trial Services

SOSO CRM•20.4 (Rev 1/14) PETITION FOR DISMISSAL — PETITION Pen. Code §§ 12014 & 1203 4.3
(FELONY/MISDEMEANOR - PC 1203.4 OR 1203.4a)
 (COURT USE ONLY)
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
1
I-( CENTRAL DIVISION, CENTRAL COURTHOUSE, 1100 UNION ST., SAN DIEGO, CA 92101 F1 L E D
_CENTRAL
. DIVISION, COUNTY COURTHOUSE, 220W. BROADVVAY, SAN DEG-0, CA 92101 Otto of the Superior Court
EAST COUNTY DIVISION, 250 E MAIN ST., EL CAJON, CA 92020
0 NORTH COUNTY DIVISION, 325 S. MELROSE DR., VISTA, CA 92081
CI SOUTH COUNTY DIVISION, 500 3RD AVE , CHUIA VISTA, CA 91910
PLAINTIFF
AUG 1 0 2018
PEOPLE OF THE STATE OF CALIFORNIA By: F. IvicCurley, Deputy

DEFENDANT SUPERIOR COURT CASE NUMBER

EDWARD KRICK CR 22519
PETITION FOR DISMISSAL -ORDER GRANTING CITY/DISTRICT ATTORNEY NUMBER
(FELONY/MISDEMEANOR - PC 1203.4 OR 1203.4a)

After reviewing the petition and records in this case, the court finds that the defendant is statutorily eligible for the relief requested.
THE PETITION IS GRANTED. IT IS HEREBY ORDERED THAT:
Defendanl's previously entered plea of guilty or nobo contendere is hereby withdrawn and a plea of not guilty entered; or, if
defendant was convicted after a plea of not guilty, the verdict of guilty is hereby set aside. The accusation or information against
the defendant is dismissed and the defendant is released from all penalties and disabilities resulting from the offense of which he
or she had been convicted, except:
• This order does not permit a person prohibited from holding public office as a result of the conviction to hold public office.
• This order does not permit the defendant to own, possess, or have custody or control over any firearm nor does it prevent
conviction of the defendant under Chapter 2 (commencing with § 29800) of Division 9 of Title 4 of Part 6 of the Penal Code.
• This order does not affect any revocation or suspension of the defendant's privilege to drive a motor vehicle. The conviction
in this case shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting suet) privilege
on the ground of two or more convictions (Veh. Code § 13555).
• In any subsequent prosecution for any other offense, the conviction in this case may be pleaded and proved as a prior
conviction and shall have the same effect as if this petition has not been granted.
• The conviction in this case remains a part of the court file which can be viewed by the public.
• This order does not release certain persons from the duty to provide specimens, samples, or print impressions required by
the DNA and Forensic Identification Database and Data Bank Act. (See Pen. Code § 299(f).)
• Relief granted pursuant to Pen. Code § 1203.4 does not relieve a defendant of the duty to register pursuant to Pen. Code
290 et. seq. (Pen. Code § 290.007) or exclude a defendant from the internet publication provisions of Megan's Law.
• Relief granted pursuant to Pen. Code § 1203.4 does not relieve defendant of the obligation to disclose the conviction in
response to any direct question contained in any questionnaire or application for public office, for licensure by any state or
local agency, or for contracting with the California State Lottery Commission
Etztc", „?,..
1,4,
I

Misdemeanor: The defendant pay a court cost of $60.00 to the court, payable 11 forthwith €11.4e 1, 4 4 A- If not paid
by the date due, the account will be referred to the court's contracted collection agency to pursue collecticth athe unpaid
balance.
Felony: The defendant pay a court cost of $120.00. Defendant to report to the Department of Revenue and Recovery within two
weeks of the date of this order to pay the court cost. Contact Revenue and Recovery for office locations.
Central: (619) 515.-6200 East County-. (819)441-4607 North County: (760) 806-6396 South County: (619) 691-4505
0 Court finds the defendant does not have the ability to pay. The court cost is waived

Date:
Ii idgeJCcifm of the Superior Court

You may have the right to petition for a Certificate of Rehabilitation and Pardon pursuant to Pen. Code § 4852 et seq. An
instruction packet (SDSC Form #PKT-016) may be obtained from the court or found at www.sdcourt.ca.gov.

CLERK'S CERTIFICATE
The foregoing document, consisting oi _ .1 pages, is , two, and correct copy of
Davy on file in this office.
Clerk of a Sup or Court

Date: by 1, . Deputy

SDSC CRM-205 (Rev. 1/14) PETITION FOR DISMISSAL - 0 - M ER GRAN

ir Pen Code S§ 1203 4 6 1203 4a
(FELONY/MISDEMEANOR - PC 1 203.4 OR 1203.4a)
 FOR COURT USE ONLY
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
El COUNTY COURTHOUSE, 1100 UNION ST., SAN DIEGO, CA 92112-0123
El HALL OF JUSTICE, 330W. BROADWAY, SAN DIEGO, CA 92101-3827
LI FAMILY COURT, 1555 6TH AVE, SAN DIEGO, CA 92101-3294
71 MADGE BRADLEY BLDG., 1409 4TH AVE., SAN DIEGO, CA 92101-3105 I
LI KEARNY MESA BRANCH, 8950 CLAIREMONT MESA BLVD., SAN DIEGO, CA 92123-1187 4 lot el the Siptilor tood
0 NORTH COUNTY DIVISION, 325 S. MELROSE DR., VISTA, CA 92083-6643
0 EAST COUNTY DIVISION, 250 E. MAIN ST., EL CAJON, CA 92020-3941
0 RAMONA BRANCH, 1428 MONTECITO RD., RAMONA, CA 92065-5200 AUG 21 2018
0 SOUTH COUNTY DIVISION, 500 RD AVE., CHULA VISTA, CA 91910-5649
0 JUVENILE COURT, 2851 MEADOW LARK DR., SAN DIEGO, CA 92123-2792
0 JUVENILE COURT, 325 S. MELROSE DR., VISTA, CA 92083-6634 By: Deputy
PLAINTIFF(S)/PETITIONER(S)
PEOPLE OF THE STATE OF CALIFORNIA
DEFENDANT(S)/RESPONDENT(S) JUDGE a KANESHIRO
EDWARD MIRICK
DEPT 2104

CLERK'S CERTIFICATE OF SERVICE BY MAIL SUPERIOR COURT CASE NUMBER:

(CCP 1013a(4)) CR 22519

I, certify that: I am not a party to the above-entitled case; that on the date shown below, I served the following document(s):
ORDER GRANTING PETITION FOR RELIEF (PC1203.4 & PC1203.4a)

on the parties shown below by placing i true copy in a separate envelope, addressed as shown below; each envelope was then sealed
and, with postage thereon fully prepaid, deposited in the United States Postal Service at: 1E] San Diego CI Vista 0 El Cajon 0
Chula Vista 0 Ramona, California.

NAME & ADDRESS NAME & ADDRESS

OFFICE OF THE DISTRICT ATTORNEY Z MICHAEL BEGOVICH

ATTN: CASE ISSUING UNIT, MS: D443 450 B ST STE 900
HALL OF JUSTICE SAB DIEGO CA 92101
330 W BROADWAY 8TH FLR
SAN DIEGO CA 92101-3826

SAN DIEGO CITY ATTORNEY

ATTN: APPELLATE UNIT
1200 3RD AVE STE 700
SAN DIEGO CA 92101-4103

OFFICE OF THE PUBLIC DEFENDER

COUNTY OF SAN DIEGO
Monique Carter, Attn: Natalie Muccillo
450 B STREET, MS: C277
SAN DIEGO CA 92101-8087

CLERK OF 'THE SUPER OR COURT

Date: 13/15/18 by / Deputy

MURPHY

SDSC CIV-286(R•w. 12-02) CLERK'S CERTIFICATE OF SERVICE BY MAIL Page 1 of '

 District Court. Weld County, Colorado
Court Address: 901 9th Avenue, Greeley, CO 80631
DATE FILED: January 4, 2018 12:00 PM
CASE NIAILIER: 20170'30960

Contestors: DEBORAH A. SUNIGA: AARON H. SANCHEZ;

DONALD A. PERL; KRISTOPHER JACKS:
SUE A. WILLIAMSON ZAMORA;
A COURT USE ONLY A
ANDREW SEGAL; ANNE E. CURRY;
RAY ROMERO
Case Number: 17CV30960
V.

Division: 5
Contestee: EDWARD MIRICK
ORDER

This matter comes before the Court following a trial held on January 2, 2018 on Contestors

Verified Statement of Intent to Contest Election filed on November 28. 2017. The Court has considered

the evidence presented at trial and the arguments of the parties. The sole contested issue before the

Court is w hether the Contestor can prove by a preponderance of the evidence that the Contestee has

been convicted of a felony. This is a mixed question of fact and law. For the reasons set forth below,

the Court concludes the Contestee has been convicted of a felony. The Court makes the following

findings of facts and conclusions of law:

PRE-ELECTION

(1) Contestors and Contestee all reside in the City of Greeley and are "eligible electors" as defined in

C.R.S. 1-1-104(16). The Court has personal and subject matter jurisdiction pursuant to C.R.S. 1-11-

112 and C.R.S. 1-11-213(4).

(2) The Contestee was a candidate for Greeley City Council-At Large in Greeley, Colorado in the 2017

municipal coordinated election.

1
(3) The City of Greeley, a home rule city. had an election for one At-Large Councilmember on

November 7. 2017. Contestee was a candidate for the At-Large Councilmember.

(4) The Charter for the City of Greeley. Colorado states in pertinent part:

ARTICLE IL-ELECTIVE OFFICERS

Section 2-4.-Qualifications.

No person shall be eligible to the Office of Mayor or Council unless the

candidate is a citizen of the United States, at least twenty-one (21) years of
age. shall have been for one (1) year immediately preceding such election
a resident of the City of Greeley. Colorado, shall have been for ninety (90)
days immediately preceding such election a resident of the candidate's
Ward. A person who has been convicted of a felony shall not be elizible
to become a candidate for a City office. No elected official shall hold any
other elective public office. (emphasis added).

(5) As evidenced by Exhibit 3. the City of Greek) advises candidates about these qualifications in its

Greeley 2017 Municipal Election Guide-City Council Candidates and Political Committees s‘ hich is

distributed to candidates for municipal office.

(6) As evidenced by Exhibit 4, the City of Greeley also requires candidates for At-Large

Councilmember to certify in a sworn Acceptance of Nomination form. that the candidate meets all

qualifications of the municipal office, includimi an affirmation that the candidate has no felony

convictions.

(7) As evidenced by Exhibit 4. Contestee acknoN% !edged the of Greele's "1 have no felon.

convictions" requirement lbr At-Large Councilmember signing his initials next to the

requirement. Additionally. he signed the same affirmation on his Acceptance of Nomination form.

2
 The California Case

(8) On May 18, 1978 the Contestee was charged by Criminal Information with. among other things.

Forgery, a felony. The language in Count One of the Criminal Information filed on Ma v 18. 1978

reads:

On or about March 14. 1978. EDWARD CHARLES MIRICK did

willfully and unlawfully make, alter, forge, and sign the name of another
person, knowing he has no authority so to do, to an invoice, request for the
delivery of goods or chattel of any kind, or other contract for money or
other property, in the amount of $682.58. in violation of Penal Code
section 470.

(9) On May 19, 1978 the Contestee entered a Not Guilty plea.

(10) As evidenced by Exhibit 5 ("Change Of Plea-Guilty" form). the Contestee, with the assistance of

counsel, knowingly, intelligentl) . and oluntarily pled guilty to the felony crime of Forgery (Count

1) in violation of California Penal Code Section 470 on October 5, 1978 in Superior Court of

California. County of San Diego Case No. CR-43446. The Change of Plea form was signed b.v the

Deputy District Attorney. the Contestee's attorne, and approved by the Court. Paragraph 12 of the

"Change of Plea- form states in pertinent part:

"Defendant plead to PC 470 (Ct I). Dist atty to dismiss all other counts.
Court commits itself to 6 months maximum if any custody imposed.
Defendant to be entitled to misdemeanor reduction at 18 months after
successful completion of probation for that time.-

(1 I ) On December 8. 1978 the Contestee was sentenced by the court to a three sear period of -formal

probation- vv ith various terms and conditions including serv ing one-hundred-twenty (120) days in

the County Jail. The jail sentence was stayed until January 2, 1979. On April I. 1981 the court

removed the Contestee from -formal probation- and placed the Contestee on -probation to the

Court.-

3
(12) As evidenced by Exhibit 8, on December 8, 1978 the Report from the Court indicated the "Date

of Conviction as October 5, 1978. Additionally, paragraph (5)(A)(2) of the Report indicates the

imposition of the sentenced was suspended.

(13) As evidenced by Exhibit 9. a Probation Order was filed on December 13, 1978 stating. among

other things. that "Nile above-named defendant having heretofore. on October 5. 1978 been

convicted of the crime of Forgery (470 PC)." (emphasis added).

(14) On April 1. 1981. approximately twenty-eight (28) months after sentencing, the

Probation Officer's Supplemental Report was filed w ith the Court. The probation officer's

recommendation stated "[ghat formal probation be terminated and that defendant remain on

summary probation to the Court for the balance of the term. that is, until December 7, 1981."

On April 1. 1981 Judge Smith ._read and considered the foregoing report."

(15) California Penal Code § 473 stated in 1978 "Forgery is punishable by imprisonment in the state

prison, or by imprisonment in the county jail for not more than one year."

(16) California Penal Code §17(a) & (b)(1) & (3) stated in 1978 the following:

17. (a) A felony is a crime that is punishable with death, by imprisonment

in the state prison, or notwithstanding any other provision of law. h)
imprisonment in a county jail under the provisions of subdivision (h) of
Section 1170. Every other crime or public offense is a misdemeanor
except those offenses that are classified as infractions.
(b) When a crime is punishable, in the discretion of the court, either by
imprisonment in the state prison or imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170, 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 or imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170.
(2) When the court, upon committing the defendant to the Division of
Ju‘ eni le Justice, designates the offense to be a misdemeanor.

7
 (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.

THE ELECTION

(17) On November 7, 2017 the Weld County Clerk and Recorder conducted a coordinated election

and. on November 18, 2017, issued its official survey of returns for the 2017 election as evidenced

by Exhibit I. The results of the election concluded that the Contestee received more votes than the

two other candidates. Subsequently. the Contestee was sworn into office.

LEGAL ANALYSIS

The crux of this case turns on whether Contestee's plea of guilty to felony forgery was reduced

(commonly referred to as "wobbled-) to a misdemeanor. The Contestee admits that he was charged

N‘ Rh and pled guilty to a felony forgery charge, but contends that the felony forgery charge was wobbled

don to a misdemeanor. or alternatively, suspended altogether.

In 2013. the California Supreme Court examined California Penal Code §17(b)(3) and its history'

in People v. Park. 299 P.3d 1263 (Cal. 2013). In Park, the Court analyzed subdivision (b)(3) which

dealt with the reduction of a wobbler to a misdemeanor when a court suspended imposition of sentence

and granted probation. The court stated:

Under the 1963 amendment. which appears in its present form as section
17(b)(3), the court may reduce a wobbler to a misdemeanor either by
declaring the crime a misdemeanor at the time probation is granted or at a
later time—for example, when the defendant has successfully completed
probation. Park. 299 P.3d at 1269-70.

5
 Numerous California courts have reasoned and concluded that a felony conviction under section

17(b)(3) is not automatically wobbled to a misdemeanor upon the conclusion of probation. hut instead

requires the court to affirmativel change the conviction to a misdemeanor, either at the time of

sentencing. or later upon motion of the defendant. See People v. Douglas, 972 P.2d 151, 154 (Cal.

1999) (after defendant pled may to wobbler felony, court's sentence of 3 years* probation left felony

conviction in place until court later formally declared it a misdemeanor); Gebremicael v. California

corn. On Teacher Credentialing, 118 Cal. App. 4'h 1477, 1484-85 (Cal. App. 2004) (trial court. upon

plaintiffs petition, reduced plaintiff's felony conviction to a misdemeanor pursuant to California Penal

Code §17(b)(3)).

California law requires that upon a grant of probation without the imposition of sentence, a

wobbler is deemed a felony for all purposes unless subsequently reduced to a misdemeanor by the court

at the time probation is granted or at a later time upon motion of the defendant. The credible evidence

proses that the court did not reduce Contestee's felon conviction to a misdemeanor at the time it

granted probation on December 8. 1978. The Contestee also concedes that he never moved the court to

wobble his felony conviction to a misdemeanor conviction. As a result, the Contestee currently has a

felony conviction for Forgery in violation of California Penal Code Section 470.

9
 WHEREFORE, this Court concludes that the Contestors have met their burden of proof that the

Contestee was not legally elected to the contested office due to his ineligibility based on his prior felon

conviction. As a result, the Court sets aside the results of the election and declares a vacancy in the

contested office pursuant to C.R.S. 1-11-216. Lastl y . the cash bond posted by Contestors is hereb

discharged and refunded to Contestors.

Dated: January 4. 2018

13y The Court:

Marcelo A. Kopcow
District Court Judge