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Reduce a Felony Conviction to Misdemeanor – California Penal Code Section 17(b)

Posted by Alan Eisner | May 23, 2018

Reduce a Felony Conviction to Misdemeanor – California Penal Code 17(b) PC
Under California Penal Code 17(b), If you were convicted of a felony, you may have a chance to reduce it to a misdemeanor offense.

A felony conviction on your criminal record is life-altering. Reducing a Felony conviction to a misdemeanor is covered under California Penal Code Section 17(b).

If you have been convicted of California felony offenses, you may have a chance to reduce them to misdemeanor offenses. In other words, just because you were convicted of a felony crime, it does not always mean it's permanent.

Under California law, there are some crimes that are commonly known as “wobblers.” This means the prosecutor has the discretion to file a criminal case as either a felony or misdemeanor offense.

Determining whether a wobbler crime is a felony or misdemeanor is made by a Los Angeles County prosecutor at the moment charging allegations are formally filed or even by the judge at the time of sentencing.

Under California Penal Code § 17(b), a so-called “wobbler” offense can be changed by a judge from a felony offense to a misdemeanor offense as long as you are eligible and upon filing a proper motion to the court. In fact, the judge can reduce a felony to a misdemeanor even when the prosecutor objects.

The 17(b) motion is highly discretionary and it's always in your best interest to retain a Los Angeles criminal defense lawyer at Eisner Gorin LLP to advise and handle your reduction petition. Our lawyers are frequently asked: What exactly are the benefits of reducing a felony conviction to a misdemeanor?

A felony reduction has numerous important benefits. For example, if you are asked on a job or housing application if you have a felony conviction, you can say no, increasing your chances of approval. Another benefit is your ability to obtain a professional license for certain career jobs. Yet another benefit is to restore your California gun rights.

Finally, reducing the felony offense can protect you from harsher legal sentences for any future crimes. Now that we have covered a general overview of reducing a felony to a misdemeanor under PC 17(b), let's take a more thorough review of the legal definition, motion, and eligibility below.

Legal Definition of Felony Reduction to Misdemeanor 

Under California Penal Code Section 17(b), the legal statute is described as follows:

  • When a crime is punishable by discretion from the court, either by imprisonment in county jail or state prison, under provisions of Penal Code Section 1170(h), or by fine and imprisonment in county jail, it's a misdemeanor, (3) When the court grants probation to defendant without imposition of a sentence, and when probation was granted, the court declares the offense to be a misdemeanor.

Which Felonies are Eligible for Reduction?

California Penal Code Section 17(b) states that in order to be eligible for reduction, you must have been convicted of a "wobbler offense," granted probation, and not have been sentenced to a California state prison, or sentenced to a suspended prison sentence.

It's important to note here that you need to understand exactly what a wobbler is. As stated above, a "wobbler" is an offense that can be charged as either a misdemeanor or a felony. Some common examples of California "wobbler" offenses include:

  • California Penal Code Section 459 – Burglary,
  • California Penal Code Section 245 – Assault with a deadly weapon,
  • California Penal Code Section 273.5 – Spousal abuse,
  • California Penal Code Section 422 – Criminal threats,
  • California Penal Code Section 243.4 – Sexual battery,
  • California Penal Code Section 288 – Lewd acts with a minor.

It should be noted this list above does not include all eligible offenses. There are also many California sex and fraud charges that are eligible for reduction. Remember, only felony crimes that are wobblers can be reduced to misdemeanors.  This means "straight" felony offenses aren't eligible for reduction. 

Eligibility Requirements

Not all California felony offenses can be reduced to a misdemeanor. In order to qualify for a reduction, you must have been granted probation, and the following also apply:

  • No California state prison sentence. If you were sentenced to a state prison, or county jail under AB 109, you can't file a 17(b) motion to reduce a felony to a misdemeanor. In addition, this also includes a sentence where execution of a state prison sentence was suspended.
  • Wobbler offense. As discussed above, your underlying offense must have been categorized as a wobbler.
  • Completed probation. In order to be eligible for a felony reduction, you must have successfully completed the terms of your probation. This also includes paying all your outstanding fees and fines. 

As stated above, it's important to note that under California realignment, commonly known as Public Safety Realignment initiative AB 109, a state prison sentence for a certain felony crimes was replaced by sentences in a county jail.

These are considered a state prison sentence, which means you would not be eligible for a felony reduction. Contact a Los Angeles criminal defense lawyer at our law firm for additional information about your eligibility for a reduction under California Penal Code Section 17(b).

When You Can Get Your Felony Reduced

While there are several times during your case when you can request a reduction of your felony, a 17(b) motion to reduce is typically filed after you have successfully completed probation, or when you probation was terminated early due to good behavior.

The judge could also reduce a felony to a misdemeanor after your preliminary hearing, or at the time of sentencing on your felony case. In some cases, our criminal attorneys might be able to assist you in obtaining early termination of probation. Contact our law firm for more information.

Factors Considered By Court to Rule on 17(b) Motion

The legal process of a 17(b) motion to reduce a felony starts with filing a specific petition with the court where they will schedule a hearing date. The prosecutor's office has to be served with the papers and provided sufficient notice to oppose your motion.

At the hearing, both sides will present an argument. The judge will use a variety of factors in order to determine whether to grant or deny your PC 17(b) felony reduction. These include:

  • The exact nature and facts of your offense;
  • Whether you were in compliance with the terms of probation;
  • If restitution was ordered, whether it has been paid;
  • Your prior criminal history;
  • Recommendation from the probation department.

In some cases, the prosecutor might make an argument against granting the motion to reduce. Afterward the hearing has concluded, the judge will make a ruling on your motion.

If the judge grants your motion, your felony will be reduced to a misdemeanor. A felony reduction to a misdemeanor offense is frequently the first step towards pursuing an expungement, under California Penal Code Section 1203.4. 

Benefits of a Successful Reduction

It's no secret that having a felony conviction on your record is a significant hardship to obtain employment, housing, licenses, and social services. It also means much greater legal punishments for any future criminal offenses due to sentencing enhancements.

A misdemeanor record will not normally impact your future opportunities to any great extent. Under state and federal law, a felon is prohibited from possessing or owning a firearm.

However, if you are successful in your California Penal Code Section 17(b), motion to reduce felony and you don't have any other felony convictions; you will be able to have your gun rights restored.

A successful reduction of a felony to a misdemeanor means your don't have to admit you were ever convicted of a felony crime. Again, this is significant for employment and loan applications or enlisting in the military. In other words, the law will no longer recognize you a felon. 

As you can see above, there are many benefits to a successful reduction of a felony to a misdemeanor. However, it should be noted there are some penalties that will still apply after the reductions.

For example, if your offense was considered a California serious felony or violent felony offense, your conviction will remain a "strike" for the purposes of California's Three Strike's Law.

Also, if you were required by the court to register as a sex offender under California Penal Code Section 290, you will still be required to register after the reduction.

Contact our Los Angeles Criminal Lawyers

We are often asked if an attorney is actually needed to file the motion to reduce a felony, under California Penal Code Section 17(b). In many cases, the answer is YES. Why? You will need to present the court with facts and supporting documentation that would justify a decision to reduce your felony offense to a misdemeanor.

Our Los Angeles criminal defense attorneys can present effective evidence in order to convince the judge to grant the motion. The first step is to call our law firm so we can determine eligibility and discuss options. You deserve a second chance and should not be defined with the label of being a felon.

We offer a free immediate response. Contact us at 877-781-1570.

Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776

About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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