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Name: Realignment

Defendant petitioned to reduce or dismiss his assault with a deadly weapon conviction (a wobbler offense) under Penal Code section 17, subdivision (b) and sections 1203.4, 1203.41, and 1203.42. The trial court denied the petition, finding broadly that he was not entitled to relief on his petition. When defendant filed his petition in June 2022, section 1203.42 provided in relevant part that a defendant sentenced prior to the implementation of the 2011 Realignment Act for a crime for which he would have otherwise been eligible for sentencing under section 1170, subdivision (h), may be permitted, in the trial court’s discretion, to withdraw his guilty or no contest plea. This did not apply to defendant who was not sentenced prior to the 2011 Realignment Legislation. However, while defendant’s appeal was pending, the Legislature amended section 1203.41 to expand relief to persons sentenced to state prison. Because defendant’s case is still pending on appeal and thus not yet final, the court decided to remand for the trial court to consider whether defendant satisfies all the statutory criteria under newly amended section 1204.41, and, if so, whether the court chooses to exercise its discretion to grant defendant relief under the statute.