Posted on July 8, 2016

Felony Reduction to Misdemeanor | California PC 17(b)

Just because someone was convicted of a felony does not mean it must be permanent.  In California, some crimes are categorized as wobbler offenses.  A wobbler is a crime that can be charged as either a felony or a misdemeanor.[1]  The determination of whether an offense that is a wobbler constitutes a felony or a misdemeanor is made by the prosecutor at the time the charging allegations are filed or by the judge at the time of sentencing.[2]

Fortunately, a wobbler may be reduced to a misdemeanor as long as the petitioner is eligible and upon proper motion to the court.

Penal Code 17(b) is the governing statute permitting the court to reduce a felony to a misdemeanor.[3]  The judge may reduce a felony even when the prosecutor objects.  It’s a highly discretionary motion therefore it’s in a petitioner’s best interest to retain an experienced attorney to handle the reduction petition.[4]

The process entails filing a specific petition with the court where a hearing date will be scheduled.  The prosecuting agency must be served with the moving papers and given sufficient notice to oppose the motion.  At the hearing, arguments will be presented from both sides.  Thereafter, the judge will rule on the motion.  If the court grants the petition, the felony will be reduced to a misdemeanor forthwith.

PC 17(b) reduces a felony to a misdemeanor “for all purposes.”[5]  This means a person who has previously been convicted of a felony will never have to admit they were ever convicted of a felony.  This includes employment applications, military, government questionnaires, loan applications, and applications for state license.  In sum, the law will no longer recognize the petitioner as a felon.  This remedy may even restore someone’s ability to own or possess a firearm.

Some may be interested in reading up on early termination of probation, obtaining a certificate of rehabilitation, or expungements.  There are numerous post-conviction remedies available to help someone who’s trying to clear their record that can all be litigated within the same hearing.

Expungement

ELIGIBILITY REQUIREMENTS

Not all felony offenses can be reduced to a misdemeanor.  Additionally, a person must also qualify to obtain this remedy.  Below is a check list of the eligibility requirements to obtain felony reduction.

  • No State Prison Sentence: A petitioner cannot file a motion to reduce a felony to a misdemeanor if they were sentenced to state prison. This also includes a sentence where execution of a state prison sentence was suspended.
  • Must be a Wobbler: The offense must be categorized as a wobbler. If the statute is punishable in the county jail or state prison, then it’s a wobbler.
  • Completed Probation: The petitioner must be completed with their probation term. This includes paying all outstanding fines and fees.

FACTORS THE COURT CONSIDERS

  • Prior Criminal History.
  • Whether the petitioner suffered any probation violations.
  • If restitution was ordered, the court will consider if it has been paid in full.
  • Any recommendation from the probation department.

FELONY REDUCTION BENEFITS

  • You can truthfully say you have never been convicted of a felony.
  • You may be eligible to fully restore your right to own or possess a firearm.
  • You will be eligible to serve on a jury panel.
  • You may be eligible to gain or maintain a state license.

EXPUNGEMENT

It’s common practice to file a reduction motion conjointly with an expungement petition.  Thus, once the court grants the reduction motion, a petition may immediately thereafter move to dismiss the conviction under Penal Code section 1203.4.[6]  Moreover, the court will withdraw its finding of guilt, enter a not guilty plea, and then dismiss the complaint under the expungement statute.[7]  This remedy carries a number of benefits to those seeking employment in the private sector.

CONTACT US FOR A FREE CONSULTATION

free consultation

If you suffer from a felony, the contact our office for a free consultation about reducing it to a misdemeanor and expunging your criminal record.  With a brief telephone meeting, we can tell you whether you qualify for such relief, the process of reducing the felony, and the turnaround time.  Everyone deserves a second chance and the ability to clean up their past for their mistakes.  Give us a call and we’ll be happy to explain how we may help you move forward in life without the stigma of being labeled as a felon.

 

 

LEGAL FOOTNOTES:

[1] Ordinarily when an offense is punishable by either a state prison or county jail term, it is a “wobbler,” i.e., another offense punishable either as a felony or misdemeanor.  See In re Grant. (2014) 58 Cal.4th 469.

[2] See People v. Smith (2006) 142 Cal.App.4th 923.

[3] California Penal Code 17(b) – defined (“(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 Juvenile Justice, designates the offense to be a misdemeanor. (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. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”)

[4] The trial court has discretion to reduce a wobbler to a misdemeanor … such as when the defendant has successfully completed probation. See People v. Tran (2015) 242 Cal.App.4th 887, 885.

[5] See People v. Camarillo (2000) 84 Cal.App.4th 1386, 1390 (“A wobbler reduced to a misdemeanor by the court’s exercise of discretion under section 17(b) does not qualify as a prior felony conviction.”)

[6] California Penal Code 1203.4(a)(1) provides “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her 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.”

[7] A “wobbler” still may be reduced to a misdemeanor under section 17(b) even after the case is dismissed under section 1203.4.  See Meyer v. Superior Court in and For Sacramento County (1966) 247 Cal.App.2d 133.

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