Posted on March 11, 2017

Reducing a Felony to a Misdemeanor | CA Penal Code 17(b)

Expungement

In California, a felony conviction may not always be for the rest of your life. Some crimes are classified as a wobbler which may allow you to petition for reduction after the completion of probation. A wobbler is an offense chargeable as either a misdemeanor or a felony. Once a court has reduced a wobbler offense to a misdemeanor, the crime is thereafter regarded as a misdemeanor for all purposes.

The determination of whether an offense that is a wobbler constitutes a felony or a misdemeanor is made by the district attorney at the time the charging allegations are filed or by the judge at preliminary hearing, or at the time of sentencing. Ordinarily, when an offense is punishable by either a state prison or county jail term, it is a wobbler.[1]

Reducing a felony to a misdemeanor is codified under Penal Code 17(b) pc giving the court wide latitude to reduce the conviction after successful completion of probation.[2] This section mandates two requirements: 1) the offense must be a wobbler; and 2) you were not given a state prison sentence.

There are several reasons our client’s move to reduce their felony to a misdemeanor. Most common is the employment benefits since after reduction, you will never have to admit that you were ever convicted of a felony. Additionally, reduction may restore your right to own or possess a firearm, and may help if you’re seeking a professional license. You may search our list of common wobbler offenses to determine if your conviction falls within the reduction category.

What Does the Process Entail?

The initial step is filing a petition after the completion of your probation period. If you’re currently on probation, you may seek to terminate probation early. Along with your petition, a declaration must be attached explaining the reason(s) the court should reduce the conviction to a misdemeanor, and a proof of service that the district attorney’s office was served. Our office also submits a memorandum of points and authorities along with the petition which contains the applicable law. Afterwards, the prosecutor will have the opportunity to respond. The judge will consider arguments from both sides and make a ruling. If the court grants the petition, the felony will be reduced for “all purposes”.

Several Factors the Court Will Consider

  • Your prior criminal history,
  • Whether you’re likely to re-offend,
  • The planning and sophistication of your conviction,
  • The number of victims your offense effected,
  • The reasons(s) you’re seeking reduction,
  • Whether you suffered any probation violations.

Prerequisites Before Submitting Your Petition

  • A state prison sentence was not imposed,
  • You completed your probation period,
  • You paid all court fines and fees,
  • You are not on probation for any other offense,
  • You have no current cases pending against you.

Expunging Your Record in the Same Hearing

Ordinarily, a motion for an expungement is conjointly filed with the petition for reduction. An expungement is codified under Penal Code section 1203.4 allowing the court to withdraw its finding of guilt and dismiss the case.[3] If the court grants the expungement petition, it will issue an order for dismissal that it transmitted to the department of justice to add a notation reflecting that the conviction has been dismissed.

Contact Us to Schedule a Free Consultation

If you’ve been convicted of a felony and are seeking to reduce it, then contact a respected and experienced Orange County criminal defense attorney to discuss your record and options. Our legal team at the Law Offices of John D. Rogers is available for immediate free consultations and we look forward in speaking with you.

 

 

Legal References:

[1] In re Grant (2014) 58 Cal.4th 469.

[2] (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.

[3] (a) (1) 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.

 

Leave a Reply

Your email address will not be published. Required fields are marked *


*


six − = 0

Practice Areas