California Penal Code 17 permits many people convicted of felonies to amend their conviction to
a misdemeanor. Upon reduction to a misdemeanor, the misdemeanor can then
be expunged or dismissed under
California Penal Code 1203.4 or
1203.4a. This can be extremely significant for avoiding a felony record, restoring
or maintaining gun rights. People seeking reduction may wish to simultaneously
seek early termination of probation under
California Penal Code 1203.3.
Penal Code 17(b) permits a defendant to ask the court to declare a prior felony a misdemeanor.
This determination makes a felony conviction a misdemeanor for all purposes
going forward. That is, you may answer “no” to a question
asking whether you have been convicted of a felony or have a felony on
your record, and you do not lose (or you regain) voting or gun rights.
A felony is a crime punishable by more than a year in state prison. A misdemeanor
may not be punishable by more than one year in county jail. A “wobbler”
may be punished as either a felony or misdemeanor. A “wobbler”
is a special class of crime which could be classified and punished as
a felony or misdemeanor depending upon severity of facts surrounding its
People v. Williams (App. 6 Dist. 1996) 57 Cal.Rptr.2d 448, 49 Cal.App.4th 1632, rehearing denied , review denied. In a wobbler, when defendant is sentenced
to state prison, the offense is a felony, and when defendant is sentenced
to county jail, offense is a misdemeanor.
People v. Terry (App. 1 Dist. 1996) 54 Cal.Rptr.2d 769, 47 Cal.App.4th 329.
Only “wobblers” may be reduced. A crime that is a “straight
felony” may not be reduced under
Penal Code 17(b).
People v. Mauch (App. 4 Dist. 2008) 77 Cal.Rptr.3d 751, 163 Cal.App.4th 669. For purposes of determining the statute of limitations for a “wobbler”
offense your lawyer will look to that offense’s statute—and
what it provides as the maximum punishment—rather than the statute
generally defining felonies and misdemeanors, controls.
People v. Soni (App. 4 Dist. 2005) 36 Cal.Rptr.3d 864, 134 Cal.App.4th 1510, review denied.
A California expungement lawyer may assist in determining whether an old
conviction is a felony or a misdemeanor.
Once a court has reduced a wobbler offense to a misdemeanor, the crime
is thereafter regarded as a misdemeanor for all purposes.
People v. Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished.
section provides that when a crime can be either a felony or a misdemeanor (that
is, a “wobbler”), it can become a misdemeanor
- After a judgment imposing a punishment other than imprisonment in the state prison.
In juvenile cases, either upon commitment to the
Youth Authority or upon release from the Youth Authority.
- Upon receiving probation.
Upon completing probation or
termination probation early.
- Upon initial charge from the district attorney or attorney general.
During or after a
preliminary examination upon motion to the judge.
What is a “Prison Commitment” That Precludes Reduction to a
Trial court may reduce felony to misdemeanor even after original grant of
probation if sentence has not been imposed, but it lacks authority to do
so when sentence has been imposed and suspended.
People v. Wood (App. 2
Dist. 1998) 73 Cal.Rptr.2d 308, 62 Cal.App.4th 1262, rehearing denied , review denied. That is to say, a defendant who receives
a suspended sentence to
state prison (of, for example, 16 months, or two years, or more) may not later reduce
the conviction to a misdemeanor even though he or she never actually went
to state prison. For this individual, they may still seek dismissal (“expungement”)
of their conviction under
Penal Code 1203.4 or seek to have their sentence vacated, then sentenced as a misdemeanor,
then seek dismissal.
The test, then, is the actual sentence imposed.
People v. Bury (App. 4 Dist. 1996) 58 Cal.Rptr.2d 682, 50 Cal.App.4th 1873.
To obtain reduce a felony to a misdemeanor, a California expungement attorney
will first collect information about the felony conviction. It is important
to assure that all relevant information is placed before the judge in
the petition. This petition may include information about the offense,
the probationer, letters of recommendation, proof of compliance with the
terms of probation, and any other material that may assist the court in
making a decision.
An application by defendant to reduce may be made at any time, even after
probation is terminated, provided that conditions for reduction are satisfied.
People v. Wood (App. 2 Dist. 1998) 73 Cal.Rptr.2d 308, 62 Cal.App.4th 1262, rehearing denied, review denied. Even if the defendant pleaded to a felony,
he or she may still seek reduction at a later time.
Reduction and Megan’s Law Sex Registration
A reduction from a felony to a misdemeanor in a sex offense will not terminate
the requirement to register as a sex offender under California’s
Megan’s Law. See also the California Sex Offender Registration Act,
California Penal Code 290. Contact a California expungement lawyer for other techniques for removing
your name from sex offender registration lists.
Where one’s voting rights are revoked by a judgment of a felony,
reduction to a misdemeanor will restore voting rights.
League of Women Voters of California v. McPherson (App. 1 Dist. 2006) 52
Cal.Rptr.3d 585, 145 Cal.App.4th 1469.
A reduction of a felony conviction to a misdemeanor precludes its later
use as predicate offense for possession of a firearm by a convicted felon.
People v. Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished. However,
one should be careful regarding federal felon in possession statutes and
consult a qualified California expungement lawyer.
Trial courts have broad authority in ruling on motions to reduce a crime
to a misdemeanor.
People v. Hawkins (App. 6 Dist. 2002) 121 Cal.Rptr.2d 627, 98 Cal.App.4th
1428, 99 Cal.App.4th 1333A, modified on denial of rehearing, review denied, certiorari denied
123 S.Ct. 1256, 537 U.S. 1189, 154 L.Ed.2d 1021, habeas corpus denied 2006 WL 2724145, motion to amend denied 2006 WL 3716494.
In determining whether to reduce, the judge looks at the nature and circumstances
of offense, defendant's appreciation of and attitude toward offense,
or his traits of character as evidenced by his behavior and demeanor at
trial, and when appropriate, general objectives of sentencing,
People v. Superior Court (Alvarez) (1997) 60 Cal.Rptr.2d 93, 14 Cal.4th
968, 928 P.2d 1171, rehearing denied, and the community's need for protection.
In re Anderson (1968) 73 Cal.Rptr. 21, 69 Cal.2d 613, 447 P.2d 117, certiorari denied 92 S.Ct. 2415, 406 U.S. 971, 32 L.Ed.2d 671. However,
no specific standard controls the judge’s exercise of this discretion.
Id. Nonetheless, the court must focus on considerations that are pertinent
to specific defendant being sentenced, not aversion to particular statutory
scheme. The record must demonstrate such reasoned consideration.
People v. Superior Court (Alvarez) (1997) 60 Cal.Rptr.2d 93, 14 Cal.4th
968, 928 P.2d 1171, rehearing denied.
What is the effect of Successful Reduction of a Felony to a Misdemeanor?
Once a judge reduces a California felony to a misdemeanor under Penal Code
17(b), the prosecutor may not appeal that decision or refile as a felony.
People v. Williams (2005) 28 Cal.Rptr.3d 29, 35 Cal.4th 817, 110 P.3d 1239, rehearing denied. However, if at sentencing after a felony conviction
the trial court reduces to a misdemeanor for the purposes of sentencing,
the prosecutor may appeal.
People v. Statum (2002) 122 Cal.Rptr.2d 572, 28 Cal. 4th 682, 50 P.3d 355.