Petition for Writ of Certiorari — Jonathan Phillips, Petitioner v. California

NO. ________

In the

Supreme Court of the United States

JONATHAN PHILLIPS,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the California Court

of Appeal, Sixth Appellate District, Division Three

PETITION FOR A WRIT OF CERTIORARI

Orly Ahrony

Counsel of Record

AHRONY APPEALS LAW GROUP

401 Wilshire Blvd., 12th Floor

Santa Monica, CA 90401

(310) 743-7830

orly@ahronyappeals.com

June 10, 2025

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Does a felony false imprisonment conviction

obtained by way of a nolo contendere plea violate the

due process protections of the Fifth and Fourteenth

Amendments where Petitioner was never advised by

his defense counsel that his plea would later make him

ineligible for California Penal Code Section 17(b)1 relief

(reduction from felony to a misdemeanor)?

2. Has the equal protection clause of the Fourteenth Amendment been violated where individuals

who have been found guilty of a felony by a jury were

afforded section 17(b) relief, but Petitioner, who plead

nolo contendere to the “wobbler” offense of felony false

imprisonment, was not?

3. Should a felony false imprisonment conviction

obtained by way of a nolo contendere plea, be reduced

to a misdemeanor where, as here, it was never proven

(and there is no evidence) the crime was accomplished

with “violence, menace, fraud or deceit”?

1 Hereinafter, all undesignated statutory references are to the

California Penal Code.

ii

LIST OF PROCEEDINGS

Supreme Court of California

No. S289190

The People, Plaintiff and Respondent, v. Jonathan

Phillips, Defendant and Appellant.

Order Denying Review: March 19, 2025

_________________

Court of Appeal of the State of California, Sixth

Appellate District

No. H051373

The People, Plaintiff and Respondent, v. Jonathan

Phillips, Defendant and Appellant.

Opinion: January 6, 2025

_________________

Superior Court California

No. BB516948

People v. Jonathan Phillips

Judgment: April 13, 2006

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

INTRODUCTION ....................................................... 3

STATEMENT OF FACTS .......................................... 5

STATEMENT OF THE CASE .................................... 6

REASONS FOR GRANTING THE PETITION ......... 9

I.

Phillips Was Deprived of Due Process in

Violation of the Fifth and Fourteenth

Amendments When He Agreed to a Plea of

Nolo Contendere in Which He Was Never

Advised, Nor Could He Have Understood,

That the Plea Would Make Him Ineligible

for 17(b) Relief .................................................. 9

II. Phillips Was Denied Equal Protection of

the Laws in Violation of the Fourteenth

Amendment Because His Nolo Contendere

Plea Made Him Ineligible for Sentencing

under 17(b), While Other Defendants —

Who Plead Guilty to or Were Found Guilty

By a Jury to Have Committed Felonies–—

Have Been Afforded 17(b) Relief ................... 13

iv

TABLE OF CONTENTS – Continued

Page

III. Phillips’ Felony False Imprisonment

Conviction Obtained By Way of a Nolo

Contendere Plea Should Be Reduced to a

Misdemeanor Because It Was Never

Proven – And There is No Evidence – that

the Offense Was Accomplished With

“Violence, Menace, Fraud, or Deceit” .......... 16

IV. The Interests of Justice Warrant Writ

Relief ............................................................... 22

A. The California Courts Erred in Refusing

to Consider Phillips’ Youth and

Chilhood Trauma in Deciding Whether

to Reduce Phillips’ Offense to a Misdemeanor....................................................... 22

B. The California Courts Failed to

Consider Whether It Would Be in the

Interests of Justice to Reduce Phillips’

Conviction to a Misdemeanor ................... 24

CONCLUSION.......................................................... 29

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order Denying Petition for Review,

Supreme Court of California

(March 19, 2025) ................................................. 1a

Opinion, Court of Appeal of the

State of California, Sixth Appellate District

(January 6, 2025)................................................ 2a

Judgment, Probation and Sentencing,

Superior Court California (April 13, 2006) ... 18a

OTHER DOCUMENTS

Narrative Report, Los Altos Police Department

(September 30, 2005)........................................ 21a

Declaration of Defendant Jonathan Phillips

(January 8, 2013).............................................. 36a

Nolo Contendere Plea Set Aside

(April 7, 2008) ................................................... 39a

Notice of Motion and Motion to Reduce

Guilty Plea (May 3, 2023) ................................ 41a

Exhibit A. Jonathan Phillips

“Journey Letter” ......................................... 52a

Exhibit B. Certifications .................................. 54a

vi

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Halbert v. Michigan,

545 U.S. 605 (2005) ..................................... 12, 13

In re Moore,

68 Cal.App.5th 434 (2021) ................................ 22

Johnson v. California,

541 U.S. 428 (2004) ............................................. 9

Miller v. Alabama,

567 U.S. 460 (2012) ........................................... 22

Necochea v. Sup. Ct.,

23 Cal.App.3d 1012 (1972) .......................... 15, 24

North Carolina v. Alford,

400 U.S. 25 (1970) ....................................... 16, 17

People v. Babich,

35 Cal.App.4th 480 (1993) ................................ 19

People v. Davenport,

71 Cal.App.5th 476 (2021) ................................ 16

People v. Flores,

76 Cal.App.5th 974 (2022) .......................... 17, 18

People v. French,

43 Cal.4th 36 (2008) .......................................... 17

People v. Hiller,

91 Cal.App.5th 335 (2023) .......................... 17, 18

People v. Leach,

22 Cal.App.2d 525 (1937) .................................. 28

People v. Magana,

230 Ca1.App.3d 1117 (1991) ............................. 20

vii

TABLE OF AUTHORITIES – Continued

Page

People v. Manning,

133 Cal.App.3d 159 (1982) ................................ 18

People v. Matian,

35 Cal.App.4th 480 (1995) .......................... 19, 20

People v. Park,

56 Cal.4th 782 (2013) ............................ 10, 14, 25

People v. Raley,

2 Cal.4th 870 (1992) .......................................... 20

People v. Rivera,

62 Cal.App.5th 217 (2021) .................... 17, 18, 21

People v. Superior Ct. (Alvarez),

14 Cal.4th 968 (1997) ........................................ 14

People v. Superior Ct. (Feinstein),

29 Cal.App.4th 323 (1994) .......... 4, 11, 18, 20, 21

People v. Tran,

242 Cal.App.4th 877 (2015) ............ 15, 24, 25, 28

People v. Webber,

228 Cal.App.3d 1146 (1991) .............................. 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ........................................ 2, 3, 13

U.S. Const. amend. XI ................................................ 2

U.S. Const. amend. XIV ................................. i, 3, 4, 13

viii

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1257(a) ................................................. 1, 9

CA Penal Code § 1016.7.................................. 3, 23, 28

CA Penal Code § 1170(b)(6) ............................ 5, 22, 24

CA Penal Code § 1170(h) ................................. 8-11, 23

CA Penal Code § 1203.4.............................................. 8

CA Penal Code § 17(b) ....................... i, 3-15, 23-25, 28

CA Penal Code § 236/237...................... 7, 8, 10, 11, 20

JUDICIAL RULES

CA Rules of Court, Rule 4.410............................ 25, 26

Fed. R. Crim. P. 11.................................................... 16

LEGISLATIVE MATERIALS

CA Assem. Bill 109. Ch. 15, Stats. 2011 .................... 8

California Senate Bill 567 .................................... 5, 22

1

PETITION FOR A WRIT OF CERTIORARI

Mr. Jonathan Phillips (hereinafter “Phillips”), by

and through Orly Ahrony, Ahrony Appeals Law Group,

respectfully petitions this Court for a writ of certiorari

to review the opinion and judgment of the California

Court of Appeal, Sixth Appellate District (Petition for

Review by the California Supreme Court denied March

19, 2025).

OPINIONS BELOW

The decision of the California Court of Appeal,

Sixth Appellate District, unpublished No. H051373, is

reprinted in the Appendix (App.) at 2a. The California

Supreme Court, No. S289190, denied a Petition for

Review on March 19, 2025. App.1a.

JURISDICTION

The Petition for Review to the California Supreme

Court was denied on March 29, 2025. App.1a. Phillips

invokes this Court’s jurisdiction under 28 U.S.C.

§ 1257(a), having timely filed this petition for writ of

certiorari.

2

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be put twice in jeopardy of

life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

U.S. Constitution, Amendment XIV

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

3

INTRODUCTION

The due process guarantees of the Fifth and

Fourteenth Amendments include the right to present

a defense. A nolo contendere plea, such as the one

entered by Phillips, waives the right to challenge

evidence or testimony. If a defendant does not fully

understand these implications, then the plea could not

have been made knowingly and voluntarily, which is

a clear denial of due process.

This is an appeal from the California Court of

Appeal’s decision to reaffirm the trial court’s denial of

Phillips’ motion under 17(b) requesting that his felony

false imprisonment conviction—pursuant to a plea of

nolo contendere—suffered 19 years ago in 2006, be

reduced to a misdemeanor.

False imprisonment is a “wobbler” offense. The

term “wobbler” comes from the fact that the offense

“wobbles” between being classified as a misdemeanor

or a felony depending on the facts of the case, the

charging decision of the prosecutor and the decisions

of the sentencing court. Here, because Phillips pleaded

nolo contendere to the charge as a felony in 2006—when

he was only 20 years old, and thus a youth under

section 1016.7—the California courts ruled that the

offense was no longer a wobbler offense; it was transformed by the plea to a “straight” felony. This was an

abuse of discretion which resulted in several constitutional violations.

First, Phillips was never advised by his counsel

regarding the negative implications of his nolo contendere plea. Namely, that the plea would make him

4

ineligible for section 17(b) relief. Instead, his counsel

convinced him to change his initial not guilty plea to

a plea of nolo contendere by telling him that he would

not get a fair trial because he was Black. Fearful of

these potential consequences, and not knowing that the

decision would result in him forever having a felony

conviction tarnishing his record, Phillips relented and

changed his plea. The nolo contendere plea lacked

Phillips’ full and complete informed consent. As such,

Phillips was deprived of constitutional due process.

Second, Phillips was denied equal protection of

the laws under the Fourteenth Amendment. California

courts addressing 17(b) motions are often presented

with situations in which the defendant entered a guilty

plea to a felony or was even found guilty by a jury.

Indeed, this is the underlying purpose of 17(b) relief—

to reduce a felony to a misdemeanor in cases involving

wobbler offenses. Yet, because Phillips pleaded nolo

contendere, the California courts insist this somehow

transformed the wobbler offense of false imprisonment

to a straight felony, for which 17(b) is not available.

Third, in the context of a section 17(b) motion, it

is irrelevant that Phillips pleaded nolo contendere to

a felony. Rather, the relevant inquiry for purposes of

the 17(b) motion in this case is whether the false imprisonment was “effected by violence, menace, fraud, or

deceit.” (People v. Superior Ct. (Feinstein), 29 Cal.App.

4th 323 (1994). It is only upon a finding of violence,

menace, fraud, or deceit that false imprisonment

becomes a felony. As set forth below, the incident

involving Phillips is far from what California decisional

law defines as violence or menace.

Finally, the California courts erred in flatly refusing to consider Phillips’ traumatic childhood and his

5

youth—20 years of age—at the time of the incident.

Due to the passage of California Senate Bill 567

(amending section 1170(b)(6)), trial courts are now

required to consider both factors in sentencing. Had

these considerations been available in 2006, Phillips

likely would have faced only a misdemeanor charge.

Since then, Phillips has maintained an exemplary

record and has contributed positively to society. He is

precisely the type of individual for whom 17(b) relief

is intended.

The denial of 17(b) relief, based solely on a nolo

contendere plea, resulted in a fundamental miscarriage

of justice. Such a plea is not an admission of guilt and

does not establish the factual elements necessary to

sustain a felony conviction for violence, menace, fraud,

or deceit. For these reasons, Phillips respectfully

petitions this Court for a writ of certiorari to review

the constitutional violations and exceptional circumstances of his case.

STATEMENT OF FACTS

In 2005, Phillips was enrolled as a student at

Foothill College. On one occasion, he provided transportation to his friend, Corrina Perdue, during which a

dispute arose between them. App.33a-34a. At a certain

point, Ms. Perdue requested to exit the vehicle; however, they were traveling on the freeway at the time.

Due to a combination of Phillips’ immaturity and his

inability to safely stop the vehicle under the circumstances, he failed to promptly comply with her request.

(Ibid.)

6

The police report indicates that Phillips was agitated and upset because Perdue had not invited him to

a party she was planning to attend. (Ibid.) At the time,

Phillips was only 20 years old, an age at which the

brain is still in a critical stage of development. His

response to the perceived rejection was marked by

impulsivity and poor judgment. After regaining his

composure, he reduced his speed to under five miles per

hour, reached across Perdue to open the passenger

door, nudged her out of the vehicle, and drove away.

(Ibid.) Fortunately, Perdue did not sustain any injuries.

App.22a.

STATEMENT OF THE CASE

In 2005, Phillips initially pleaded not guilty to the

charged offense. However, at the advice of his counsel,

he later changed his not guilty plea to a plea of nolo

contendere. He explained what he was advised about

his nolo contendere plea as follows:

Prior to the entry of this plea of Nolo Contendere, my counsel, ReBecca [sic] R. Simmons,

advised me that I should change my plea

from Not Guilty to Nolo Contendere for two

reasons: [S]he advised me that I could not

expect to receive a fair trial in the Palo Alto

courts because I was a black person and

would thus suffer invidious discrimination

by any Palo Alto jury, and, additionally, that

any Palo Alto jury would also discriminate

against me at trial because I was a resident

of the City and County of San Francisco.

7

I wished to contest the allegations of the

alleged victim in this case at trial, but Ms.

Simmons dissuaded me from exercising my

constitutional rights to a trial by convincing

me that the probability of any Palo Alto jury

harboring feelings of resentment and discrimination would overcome any chance for

a fair consideration of the facts of the case.

Ms. Simmons advised me that taking the plea

bargain offered in which I changed my plea to

Nolo Contendere of a felony count of § 829a

P.C. would be in my best interests since I

could thereby avoid a possible conviction by

a jury whose prime consideration would be

my race and where I lived at the time.

This case is the first exposure to the court

system and the criminal justice system, and

I relied totally on the judgment and advice of

Ms. Simmons for my choices in this case.

App.37a-38a, paragraph numbering omitted, emphasis

added.

Notably, there is no evidence that Ms. Simmons

advised Phillips that if he agreed to a nolo contendere

plea, he would become ineligible for later 17(b) relief.

Entering a nolo contendere plea requires informed

consent by the defendant. That was clearly not the

case here.

On February 24, 2006, Phillips changed his not

guilty plea to a nolo contendere plea to what was

described as a felony violation of Penal Code section

236/237. He was sentenced for the offense on April 13,

2006. Execution of sentence was suspended. Phillips

was placed on three years of formal probation and

8

ordered to serve 90 days on the weekend work program,

among other conditions of probation. On April 7, 2008,

Phillips moved the court to set aside his nolo contendere plea and dismiss the charge. Phillips’ motion was

granted, and the charge was dismissed pursuant to

Penal Code section 1203.4. App.39a-40a.

Between 2008 and 2016, Phillips filed three 17(b)

motions, each of which was taken off calendar or

dismissed without prejudice.

On May 3, 2023, Phillips filed a fourth motion

seeking relief pursuant to Penal Code section 17(b).

App.42a-65a. Following a hearing on August 16, 2023,

the trial court again denied his motion. Phillips’ timely

appeal followed.

The Court of Appeal held that “false imprisonment

is not a wobbler offense because section 237, subdivision

(a) does not provide for either punishment in the

county jail or imprisonment in state prison.”1 App.14a.

It further held that “section 237, subdivision (a)

specifically delineates that if the false imprisonment

is effected by violence, menace, fraud, or deceit, it can

only be charged as a felony offense.” Ibid. Based on

this, the Court of Appeal found that because Phillips’

plea was to “a straight felony charge,” the trial court

did not have the authority to reduce the offense. Ibid.

1 The reference to state prison in describing the punishments

applicable in a false imprisonment case is inaccurate. In 2011,

the California Legislature enacted Public Safety Realignment

under which executed felony sentences for specified crimes are to

be served in the county jail pursuant to section 1170(h), not state

prison. Service of a section 1170(h) sentence in a county jail does

not change the felony nature of the offense. CA Assem. Bill 109.

Ch. 15, Stats. 2011.

9

Phillips Petition for Review with the California

Supreme Court was denied on March 19, 2025. App.1a.

REASONS FOR GRANTING THE PETITION

I.

Phillips Was Deprived of Due Process in

Violation of the Fifth and Fourteenth

Amendments When He Agreed to a Plea of

Nolo Contendere in Which He Was Never

Advised, Nor Could He Have Understood,

That the Plea Would Make Him Ineligible

for 17(b) Relief

The United States Supreme Court has jurisdiction

under U.S.C.A. § 1257(a) to review “[f]inal judgments

or decrees rendered by” the California Supreme Court.

Johnson v. California, 541 U.S. 428, 429 (2004). This

Court should grant certiorari to correct the California

Court of Appeal’s decision in People v. Phillips which

the California Supreme Court affirmed in denying

Phillips’ Petition for Review. Certiorari is necessary in

this case to correct the California Court of Appeal’s

prejudicial decision in finding that Phillips is ineligible

for California Penal Code 17(b) relief.

Section 17 provides, in relevant part:

(a) A felony is a crime that is punishable with

death, by imprisonment in the state prison,

or, notwithstanding any other law, by

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.

10

(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 . . . .

The California Supreme Court has noted that

statutory authorization for a court to exercise discretion

to deem a wobbler to be a misdemeanor or felony

appeared in 1874 in a more limited form than its

current structure. This Court succinctly described

wobblers as follows:

There is . . . a special class of crimes involving

conduct that varies widely in its level of

seriousness. Such crimes, commonly referred

to as “wobbler[s]” are chargeable or, in the

discretion of the court, punishable as either

a felony or a misdemeanor; that is, they are

punishable either by a term in state prison

or by imprisonment in county jail and/or by

a fine. (§ 17, subd.(b)(4).)

People v. Park, 56 Cal.4th 782, 789 (2013), internal

case citations omitted.

Contrary to the ruling of the Court of Appeal in

this matter, false imprisonment is a wobbler offense

in California. The elements of false imprisonment are

set out in section 236 through one pithy, but broad,

sentence: “False imprisonment is the unlawful violation

of the personal liberty of another.” The definition reads

as a philosophical precept as much as a specification

of the elements of a crime.

11

The penalty for false imprisonment is set out in

section 237. Section 237 appears to be an in-artfully

drafted alternate felony-misdemeanor wobbler, rather

than two separate crimes, one a felony and one a misdemeanor. The penalty for false imprisonment is found

in two sentences in one subdivision. The essence of the

offense is the violation of the personal liberty of

another, which obviously describes a very broad range

of prohibited conduct. The penalties for a deprivation

of another’s liberty are also correspondingly relatively

wide. On the low end, false imprisonment is punishable

by imposition of simply a fine—making the offense

necessarily a misdemeanor. § 237(a). On the high end,

the offense is punishable by a felony jail sentence of

three years and a fine of up to $10,000.

False imprisonment is alternatively punishable

as a felony or a misdemeanor and, thus, constitutes a

wobbler offense. However, when an additional finding

is made that the offense was “committed by violence,

menace, fraud, or deceit,” the statute prescribes a

felony sentence in the county jail under section 1170(h),

and is then a straight felony that may not be reduced

to a misdemeanor in the court’s discretion under section

17, subdivision (b)(3). Feinstein, supra, 29 Cal.App.4th

at p. 330.

In the present case, the California Court of Appeal

found that the false imprisonment charged in this case

did not qualify as wobbler because Phillips pleaded

nolo contendere to felony false imprisonment. App.14a.

As a result of his plea, the court determined that the

requirement that the offense be “committed by violence,

menace, fraud, or deceit” was admitted by him to be

true. The appellate court’s determination that Phillips’

conviction for felony false imprisonment cannot be a

12

misdemeanor appears to rest on the faulty, circular

reasoning that because Phillips entered a nolo contendere plea to what was generically described as a felony,

it must remain a felony. This was prejudicial error.

In Halbert v. Michigan, 545 U.S. 605, 608 (2005),

the State of Michigan argued that a defendant had

waived his right to appointed appellate counsel by

entering a nolo contendere plea. In rejecting Michigan’s

claim, this Court found that because “the trial court

did not tell Halbert, simply and directly, that in his

case, there would be no access to appointed counsel,”

the defendant could not be found to have waived that

right. Ibid.

From the beginning, Phillips proclaimed his innocence to the charged offense and had even entered a

not guilty plea. He later changed his not guilty plea to

a nolo contendere plea after his counsel instilled in

him the fear that he would be convicted and punished

by the jury solely because he is Black. He was never

told the full and complete implications of accepting a

plea deal. He was never told that accepting this plea

would make him ineligible for 17(b) relief. Nor was he

ever told that the inability to reduce the felony to a

misdemeanor would have lifelong negative consequences which would manifest in him not being able

to find gainful employment in the career he desired,

among other things. Rather, he explained:

I wished to contest the allegations of the

alleged victim in this case at trial, but Ms.

Simmons dissuaded me from exercising my

constitutional rights to a trial by convincing

me that the probability of any Palo Alto jury

harboring feelings of resentment and discrim-

13

ination would overcome any chance for a fair

consideration of the facts of the case.

App.37a, paragraph numbering omitted, emphasis

added.

This critical error by Phillips’ counsel damaged

his ability to meaningfully understand, defend against,

or knowingly accept potential adverse consequences of

his nolo contendere plea.2 This lack of informed

consent undermines the validity of his nolo contendere

plea and the later denial of relief. Like the defendant

in Halbert, supra, 545 U.S. at p. 608, Phillips was

never told, simply and directly, that his eligibility for

17(b) relief would be waived if he entered a plea of nolo

contendere. As a result, he was deprived of his rights

to due process under the Fifth and Fourteenth

Amendments and writ relief should be granted in this

case.

II. Phillips Was Denied Equal Protection of the

Laws in Violation of the Fourteenth

Amendment Because His Nolo Contendere

Plea Made Him Ineligible for Sentencing

under 17(b), While Other Defendants — Who

Plead Guilty to or Were Found Guilty By a

Jury to Have Committed Felonies–—Have

Been Afforded 17(b) Relief

One of the most exasperating realizations of

Phillips’ predicament is the fact that 17(b) relief has

2 Even if Phillips were advised of the potential that he might be

ineligible for 17(b) relief, it is highly unlikely he would have been

able to meaningfully understand the true ramifications of not

being able to obtain such relief as he was only 20 years old, a

youth.

14

not been applied equally and fairly to him, as evidenced

by the California cases on this issue.

In People v. Superior Ct. (Alvarez), 14 Cal.4th

968, 981 (1997), the defendant was charged with felony

possession of a controlled substance, a wobbler offense.

The prosecution alleged and defendant admitted four

prior convictions for residential burglary committed to

support a drug habit. The defendant’s criminal record

also included four misdemeanor convictions. He

received a seven-year prison term for one of the

burglaries and violated his parole on several occasions.

The matter went to trial and the jury returned a guilty

verdict. Id. at p. 973.

Although the defendant in Alvarez was found

guilty of a felony, the trial court granted the defendant’s

section 17(b) motion and reduced his conviction to a

misdemeanor. The California Supreme Court found

that it was not an abuse of discretion to grant the

motion. Id. at p. 981.

Similarly, in Park, supra, 56 Cal.4th at p. 787,

defendant pleaded guilty to a charge of felony assault

with a deadly weapon. After successfully completing

the terms of his probation, the trial court reduced the

offense to a misdemeanor in accordance with the procedures in section 17(b). Again, the California Supreme

Court found that the reduction was proper in that

case.

These cases illustrate a clear inconsistency in the

application of legal standards, as Phillips, who

entered a nolo contendere plea, was denied the same

opportunity for relief, despite the absence of a jury

finding or admission of guilt.

15

This begs the question: why would a defendant

who pleads guilty, or is found guilty by a jury, be

eligible for 17(b) relief, while a defendant who pleads

nolo contendere, like Phillips, is not? To adopt this

line of reasoning would entirely obliterate a whole

category of individuals who are eligible for relief

under section 17(b), i.e., those individuals who, like

Phillips, may have made a single, regrettable mistake

in their youth and who do not deserve to have their

whole lives destroyed because of it. Wobbler crimes

are ‘intended to extend misdemeanant treatment to a

potential felon’ and ‘extend more lenient treatment to

an offender.’” People v. Tran, 242 Cal.App.4th 877, 886

(2015) quoting Necochea v. Sup. Ct., 23 Cal.App.3d

1012, 1012 (1972).

The California courts’ reliance on the plea of nolo

contendere to deny section 17(b) relief is not only

legally flawed but also inequitable, as it places

Phillips in a worse position than defendants who plead

guilty or are found guilty by a jury, both of whom have

been found eligible for such relief. A nolo contendere

plea should not disqualify a defendant from the relief

options afforded to those who plead guilty or are found

guilty by a jury. This disparate treatment results in

unequal outcomes for defendants in similar situations,

undermining the principle of equal protection under

the law.

Moreover, the California courts’ decision in denying

Phillips section 17(b) relief could lead to systemic

inequalities within the justice system. If nolo contendere pleas are consistently used to deny relief, as it

was in this case, it creates a class of defendants who

are unfairly disadvantaged, despite the absence of a

jury’s finding or admission of guilt. This undermines

16

the fairness and integrity of the justice system, as it

allows for arbitrary decisions that do not comport with

principles of equal protection and justice.

III. Phillips’ Felony False Imprisonment Conviction Obtained By Way of a Nolo Contendere

Plea Should Be Reduced to a Misdemeanor

Because It Was Never Proven – And There is

No Evidence – that the Offense Was

Accomplished With “Violence, Menace,

Fraud, or Deceit”

This Court has recognized that:

[T]he plea of nolo contendere has been viewed

not as an express admission of guilt but as a

consent by the defendant that he may be

punished as if he were guilty and a prayer for

leniency. Fed.Rule Crim.Proc. 11 preserves

this distinction in its requirement that a

court cannot accept a guilty plea ‘unless it is

satisfied that there is a factual basis for the

plea’; there is no similar requirement for

pleas of nolo contendere, since it was thought

desirable to permit defendants to plead nolo

without making any inquiry into their actual

guilt. See Notes of Advisory Committee to

Rule 11.

North Carolina v. Alford, 400 U.S. 25, 36, fn. 8 (1970),

emphasis added.

Similarly, in Davenport, the court explained that

“a ruling holding a defendant to answer is in no way

equivalent to a jury’s factual finding or a defendant’s

admission[,]” People v. Davenport, 71 Cal.App.5th 476,

482 (2021). Further, “[a] defendant is not required to

personally admit the truth of the factual basis of the

17

plea, which may be established by defense counsel’s

stipulation to a particular document.” People v. French,

43 Cal.4th 36, 50-51 (2008). “Thus, absent an indication

that a defendant admitted the truth of particular facts,

a general stipulation to a factual basis for the plea

does not ‘constitute[] a binding admission for all purposes.’” Id. at pp. 51-52, accord, People v. Rivera, 62

Cal.App.5th 217, 235 (2021); People v. Flores, 76 Cal.

App.5th 974, 990 (2022); and People v. Hiller, 91 Cal.

App.5th 335, 349 (2023), although defendant stipulated

as part of plea that declarations of probable cause

established a factual basis for plea, the stipulation

was not an admission of the truth of the specific statements in the declarations to support a finding prior

convictions of out-of-state robberies were serious or

violent felonies in California.

Phillips’ nolo contendere plea constituted an agreement to be convicted of felony false imprisonment without an admission of his actual guilt. The stipulation was

not an agreement that all the statements in the police

reports describing how the shooting occurred were

true. Under Alford, the plea of nolo contendere is

simply not an express admission of guilt. Alford, supra,

400 U.S. at p. 36, fn. 8. California cases on this point

agree that an attorney’s stipulation to a factual basis

does not constitute an admission by the defendant of

the truth of specific facts in the applicable document.

See Hiller, supra, 91 Cal.App.5th at p. 349; Flores,

supra, 76 Cal.App.5th at p. 990; Rivera, supra, 62 Cal.

App.5th at p. 235.

Thus, the relevant inquiry is not whether Phillips

pleaded nolo contendere to what was described as

felony false imprisonment, without proof or admission

of any facts establishing elements of a felony. The

18

issue is whether the false imprisonment was “effected

by violence, menace, fraud, or deceit.” If it was not,

then the false imprisonment is classified as no more

than a wobbler and the court may reduce the charge

to a misdemeanor.

In Feinstein, the California court expressly recognized it “depends on the trier’s finding as to whether

the crime was ‘effected by violence, menace, fraud, or

deceit.’ This finding requires a trial on the merits.”

Feinstein, supra, 29 Cal.App.4th at p. 330, quoting

People v. Manning, 133 Cal.App.3d 159, 163, fn. 1

(1982); see also Hiller, supra, 91 Cal.App.5th at p. 349;

Flores, supra, 76 Cal.App.5th at p. 990; Rivera, supra,

62 Cal.App.5th at p. 235. Of course, no such finding

was made in this case.

The classification of Phillips’ offense as a felony

is unsupported by evidence. The police report, which

is the sole piece of evidence of the underlying incident,

does not demonstrate any use of violence or menace.

Phillips’ actions, while immature, simply do not meet

the high threshold required for a felony. According to

the official police report, Phillips “slowed down to

approximately 5mp . . . [opened] the passenger door

. . . [and] then pushed her [Perdue], the victim in the

shoulder area-causing her to fall (sic) out of the

vehicle.” Perdue did not truly fall from the car. She

landed on her feet and had no injury. App.34a. The

police report also reflects that she needed no medical

treatment as she did not have any injuries. App.33a.

When Phillips was taken into custody, he was not

armed, did not resist arrest, and was not combative

with the officer. Although undeniably immature and

affected by Phillips’ youth, these actions do not constitute violence, menace, fraud, or deceit.

19

California case law supports this finding. In People

v. Matian, 35 Cal.App.4th 480 (1995), appellant sought

review of the judgment of the Superior Court for Los

Angeles County after he was convicted of sexual battery

by restraint, felony false imprisonment, and genital

penetration with a foreign object. The appellant argued

that the evidence was insufficient to support the felony

false imprisonment conviction because there was no

evidence of violence or menace. The California Court of

Appeal held that the evidence was insufficient to

support a felony false imprisonment conviction, as the

evidence was inadequate to establish express or

implied threat of harm. The appellate court modified

the judgment to reflect a conviction of misdemeanor

false imprisonment, as the verdict was contrary to the

law. Id. at p. 482.

In Matian, the appellant had “squeezed [the

victim’s] breast sufficiently hard enough to cause her

pain, possibly even bruising,” “grabbed her arm,”

“yelled at her not to,” and “glared at her as he

approached her each time she attempted to leave.” Id.

at 459, 461. The victim testified that she “was afraid,

did not want him [appellant] to touch her again and

sat back down.” Id.

The court held that there was no evidence presented that constituted express or implied threat of

harm; its reasoning of this finding was rooted in the

court’s reading of People v. Babich, which defined

“violence” as “‘the exercise of physical force used to

restrain over and above the force reasonably necessary

to effect such restraint.’” People v. Babich, 35 Cal.App.

4th 480, 482 (1993). “Menace” was defined as “a threat

of harm express or implied by word or act.” Id.

Although despicable, the defendant’s behavior did not

20

qualify as violence or menace; the court’s decision was

guided by the prior decisions which upheld convictions

for felony false imprisonment involving menace when

there was evidence that the defendant used a deadly

weapon or verbally threatened harm. People v. Webber,

228 Cal.App.3d 1146 (1991) [defendant restrained

victim by pointing a gun at her head]; People v. Raley,

2 Cal.4th 870, 907 (1992), [the defendant brought

children into his camper and told them to take their

clothes off. Nearby, he kept a leather belt with a big

metal belt buckle on it. The defendant told the children

if they did not do what he said, or told anyone about

the incident, he would hit them with the belt]; People

v. Magana, 230 Ca1.App.3d 1117 (1991) [after raping

the victim, the defendant forced her to walk through

a park, while he held her hand, and when she asked

him to let go, he threatened to kill her].

As explained, ante, the California Court of Appeal

in Matian held that the appellant’s behavior did not

support a finding of felony false imprisonment, and

modified the judgment to a conviction of misdemeanor

false imprisonment under Penal Code 236.

In the present case, Phillips’ behavior is not

comparable to or consistent with the behavior of the

defendants validly convicted of felonies. Thus, the facts

in this case fall far below the standard to qualify as use

of violence, menace, fraud or deceit. The same is true

when comparing Phillips’ actions with those described

in Feinstein, where it was held that the Magistrate

erred in modifying defendant’s felony false imprisonment conviction to a misdemeanor, given that the

evidence presented demonstrated the defendant’s use

of violence and menace. Defendant “threw himself upon

[the victim], slammed her to the wall,” “pinned her

21

with the weight of his body,” “thrust one hand inside

[the victim’s] blouse, onto her breast, and the other

under her skirt and undergarments to fondle her genital

area.” Feinstein¸ supra, 29 Cal.App.4th at p.327.

In slowing down the vehicle to a crawl, opening the

passenger door, and pushing Perdue with only enough

force that she landed on her feet unscathed, Phillips

demonstrated some evident concern for Perdue’s basic

safety. App.22a More importantly, Phillips’ actions do

not demonstrate violence.

The cases discussed, ante, make clear that the

statutory definition of violence, menace, fraud, or deceit

was a high burden for the prosecution to meet. Given

that Phillips was a youth at the time, and that he

pleaded nolo contendere to the charges without a

genuine understanding of the nature of the offense, the

prosecution was unreasonably not required to prove

these elements.

Thus, absent an indication that a defendant admitted the truth of particular facts, a general stipulation

to a factual basis for the plea does not “constitute[] a

binding admission for all purposes.” Rivera, supra, 62

Cal.App.5th at p. 235.

The facts of the case were never established in

any solid form, as the police report—hearsay—was the

only evidence considered. Phillips did not elect to go

to trial and did not have a meaningful opportunity to

challenge the evidence and cross-examine witnesses.

It is more likely than not that at a jury trial or bench

trial, the prosecution would be unsuccessful in obtaining a felony conviction.

Thus, Phillips’ actions—while immature and

impulsive—do not demonstrate any use of “violence,

22

menace, fraud, or deceit.” As such, Phillips respectfully

requests this Court grant writ relief.

IV. The Interests of Justice Warrant Writ Relief

A. The California Courts Erred in Refusing

to Consider Phillips’ Youth and Childhood

Trauma in Deciding Whether to Reduce

Phillips’ Offense to a Misdemeanor

It is well-recognized in California and federal law

that “a defendant’s youth is a relevant factor in

determining whether the defendant acted with reckless

indifference to human life” and that “the ‘hallmark

features’ of youth—‘among them, immaturity, impetuosity, and failure to appreciate risks and consequences’—are arguably more germane to a juvenile’s

mental state than to his or her conduct.” In re Moore,

68 Cal.App.5th 434, 454 (2021) quoting Miller v.

Alabama, 567 U.S. 460, 477 (2012).

Youth is such a crucial factor in determining sentencing that in Senate Bill 567 the California Legislature amended section 1170(b)(6) to guide courts in

considering a defendant’s youth. Effective January 1,

2022, Section 1170(b)(6) now provides, in relevant part:

(6) Notwithstanding paragraph (1), and

unless the court finds that the aggravating

circumstances outweigh the mitigating

circumstances that imposition of the lower

term would be contrary to the interests of

justice, the court shall order imposition of

the lower term if any of the following was a

contributing factor in the commission of the

offense:

23

(A) The person has experienced psychological,

physical, or childhood trauma, including, but

not limited to, abuse, neglect, exploitation, or

sexual violence.

(B) The person is a youth, or was a youth as

defined under subdivision (b) of Section

1016.7 at the time of the commission of the

offense . . . .”

Thus, amended section 1170 mandates a court to

impose the lower term if either trauma or youth—

defined in section 1016.7 as a person under 26 years

old—was a contributory factor to commission of the

offense. (Id. at subd. (b)(6).) A defendant is only

required to satisfy one contributory factor to warrant

imposition of the lower term.

Importantly, section 1170 was passed to provide

a mechanism of redress to defendants who have been

convicted of murder. Here, Phillips was convicted of

false imprisonment which, although not a blameless

crime, is far less serious than a murder conviction, to

say the least. Indeed, Phillips’ actions did not even

result in any physical injury to Perdue. Thus, although

Phillips did not file a petition under section 1170,

application of that section is, and should be, directly

pertinent to consideration of Phillips’ motion under

section 17(b). Specifically, Phillips satisfied two of the

factors mandating the reduction of the felony to a

misdemeanor—he suffered childhood trauma and was

a youth at the time of his offense.

Phillips was born on September 17, 1985, and

raised by solely his mother in San Francisco. Phillips’

father abandoned him at birth, subjecting him to substantial childhood trauma. App.38a. Phillips struggled

24

in school, and he was diagnosed with attention deficient

disorder and placed in special needs classes. (Ibid.)

His childhood trauma is an important consideration

in determining whether the offense should have been

reduced—a factor the trial court refused to consider.

The felony should also be reduced to a misdemeanor

based on Phillips’ age of 20 and resultant naiveté at

the time the incident. As recognized by the California

Legislature, consideration of a defendant’s youth is a

matter of brain development and chemistry, not

speculation. Phillips’ impulsivity and irrational behavior was biochemically affected by his youth and childhood trauma. With the presence of both factors, it was

incumbent on the trial court to at least consider these

in deciding whether to reduce the offense. It was an

abuse of discretion to flatly refuse to evaluate the

impact these factors had on the offense charged. Had

Phillips been charged with false imprisonment today,

he surely would have had the benefit of newly

amended section 1170(b)(6) and would have been

charged with a misdemeanor, not a felony.

B. The California Courts Failed to Consider

Whether It Would Be in the Interests of

Justice to Reduce Phillips’ Conviction to

a Misdemeanor

“The reduction of a wobbler to a misdemeanor is

not based on the notion that a wobbler offense is

‘conceptually a misdemeanor.’” Tran, supra, 242 Cal.

App.4th at 886, quoting Necochea, supra, 23 Cal.App.3d

at p. 1012. “Rather, it is ‘intended to extend misdemeanant treatment to a potential felon’ and ‘extend

more lenient treatment to an offender.’” (Ibid.)

25

When the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment, and

its consequences, are not appropriate for

that particular defendant. [Citation.] Such a

defendant is not blameless. But by virtue of

the court’s proper exercise of discretion,

neither is such defendant a member of the

class of criminals convicted of an offense the

Legislature intended to be subject to felony

punishment.

Tran, supra, 242 Cal.App.4th at 886 quoting Park,

supra, 56 Cal.4th at pp. 801-802, emphasis added.

While there is “scant judicial authority explicating

any criteria that inform the exercise of section 17(b)

discretion,” Tran, supra, 242 Cal.App.4th at pp. 88788, the California Supreme Court has established the

criteria to be used:

[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the

nature and circumstances of the offense, the

defendant’s appreciation of and attitude

toward the offense, or his [or her] traits of

character as evidenced by his [or her] behavior and demeanor at the trial.’ [Citations.]

When appropriate, judges should also consider

the general objectives of sentencing such as

those set forth in California Rules of Court,

rule 4.410. The corollary is that even under

the broad authority conferred by section 17(b),

a determination made outside the perimeters

drawn by individualized consideration of the

26

offense, the offender, and the public interest

‘exceeds the bounds of reason.’

Alvarez, supra, 14 Cal.4th at p. 978.

California Rules of Court, Rule 4.410 prescribes

the factors a court must consider in imposing sentence:

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a lawabiding life in the future and deterring him

or her from future offenses;

(4) Deterring others from criminal conduct by

demonstrating its consequences;

(5) Preventing the defendant from committing

new crimes by isolating him or her for the

period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections

programs and evidence-based practices.

All these factors weigh heavily in favor of

reducing Phillips’ offense to a misdemeanor. Phillips

has been scrupulously and productively law-abiding

for the over 17 years since the incident was committed

when he was 20 years old. Maintaining the felony

charge after all these years would achieve none of the

factors set forth in Rule 4.410, except to punish

Phillips without purpose or justification. While Phillips’

actions on the day of the incident were regrettable, he

27

has paid the price of his actions. Phillips was placed on

three years of formal probation and ordered to serve 90

days on the weekend work program, among other

terms. He has also unreasonably and unnecessarily

been penalized for his misconduct at age 20 by being

denied his dream career to protect and serve the

community.

In 2013, Phillips moved to Los Angeles and was

inspired to pursue a career in public protection. Phillips completed a Security Officer Academy program and

earned numerous certifications. App.54a-65a. He was

an excellent student, as demonstrated by a letter of

recommendation from his criminal justice instructor,

Rafael Aguila. He has also proven himself an excellent

worker, as described by Carlene Gepner, a business

development associate of Los Angeles Community

Career Development, Inc., an organization that helps

assist individuals with security job placement. Phillips

has been a security guard at Walt Disney, ABC

Studios, CBS Productions, and other places.

Phillips dream is to return to school and earn a

university degree in security studies. He has researched

programs at Cambridge and Pepperdine. Phillips wants

to pursue his goal of protecting the community, but

believes that his past is preventing him from moving

forward. After receiving a degree, he hopes to be

employed by a vital government agency such as homeland security. Unfortunately, his conviction will prevent

him from obtaining that goal. There are many security

positions for which Phillips would like to apply, but

his options are substantially limited because of his

2005 felony conviction. Phillips has been crime-free and

productive for the last 17 years. He has proven that

he deserves a chance to advance in his career.

28

A person’s youth and childhood trauma are now

rightly recognized as factors in mitigation that a court

must consider when making resentencing decisions.

Reducing the conviction to a misdemeanor would allow

Phillips to truly and fully expunge his record. The

Legislature was guided by science research establishing that anyone under the age of 26 has an undeveloped brain. § 1016.7.

Phillips continues to feel great remorse, as he

described to the District Attorney’s Office: “I [Phillips]

feel horrible and think about this incident everyday . . . If I could talk to her [victim] I would tell her

how sorry I am and how I wish I could go back in

time.” App.52a-53a. Since this regrettable incident,

Phillips has dedicated himself to a career where he

can make his community safer; he explains that “my

passion for serving as a security guard stems from this

incident as I feel like I owe to the community for my

sin.” (Ibid.)

The evidence is clear that he is deserving of the

relief requested. If granted such relief, he would be a

benefit to the security industry and the public. “A

reduction under section 17(b) is an act of leniency by

the . . . court, one that ‘may be granted by the court to

a seemingly deserving defendant, whereby he [or she]

may escape the extreme rigors of the penalty imposed

by law for the offense of which he [or she] stands

convicted.” Tran, supra, 242 Cal.App.4th at p. 892

quoting People v. Leach, 22 Cal.App.2d 525, 527

(1937). Phillips is precisely the type of person deserving

of leniency.

Finally, the denial of 17(b) relief to Phillips has

broader implications for the justice system. It sets a

dangerous precedent which undermines the purpose

29

of wobbler offenses, i.e., to extend leniency to individuals

who have made mistakes but have shown tremendous

and positive rehabilitation. By rigidly adhering to a

technical interpretation of the law, the California courts

failed to recognize the human element of justice and

the potential for redemption.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Orly Ahrony

Counsel of Record

AHRONY APPEALS LAW GROUP

401 Wilshire Blvd., 12th Floor

Santa Monica, CA 90401

(310) 743-7830

orly@ahronyappeals.com

Counsel for Petitioner

June 10, 2025