REDUCING A FELONY TO A MISDEMEANOR IN CALIFORNIA

How Do You Turn a Felony Into a Misdemeanor?

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.

What is a "Wobbler" Crime?

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 commission. 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.

What is a Low-Level Felony in California?

Felonies classified as Class I are the least serious. It occurs when someone threatens to commit a crime that would cause death, terror, injury, or serious property damage.

This is just the tip of the iceberg. In spite of the fact that 1170(h) felonies are considered the least egregious types of felonies in California - the equivalent of Class 4 felonies - they can still result in serious jail time. If the person convicted has a previous felony conviction for any of the more than 40 different types of crimes, even 1170(h) felonies can lead to a state prison sentence.

Who Determines Misdemeanor vs. Felony Charges?

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.

That 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 Misdemeanor?

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.4^th 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.

Petition.

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. Id.

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.

Voting Rights.

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.

Gun Rights.

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.

Hearing.

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. 4^th 682, 50 P.3d 355.