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Penal Code 17b  Reducing Felony to Misdemeanor

California Penal Code 17b permits many people convicted of felonies to amend their conviction to a misdemeanour. Upon reduction to a misdemeanour, the misdemeanour can then be expunged or dismissed under California Penal Code 1203.4 or 1203.4a. This can be highly significant for avoiding a felony record, and 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 misdemeanour. This determination makes a felony conviction a misdemeanour 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 regain voting or gun rights.

Important Information

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” offence your lawyer will look to that offence’s statute and what it provides as the maximum punishment—rather than the statute generally defining felonies and misdemeanours, controls. People v. Soni (App. 4 Dist. 2005) 36 Cal.Rptr.3d 864, 134 Cal.App.4th 1510, review denied.

Once a court has reduced a wobbler offence to a misdemeanour, the crime is thereafter regarded as a misdemeanour 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Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished.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 misdemeanour (that is, a “wobbler”), it can become a misdemeanour.

  • 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.

Petition

To obtain reduce a felony to a misdemeanour, I must first collect information about the felony conviction. It is critical to ensure that all relevant information is placed before the judge in the petition. This petition may include information about the offence, 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 the 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.

 

What is the effect of Successful Reduction of a Felony to a Misdemeanor?

Once a judge reduces a California felony to a misdemeanour under Penal Code 17(b), the prosecutor may not appeal that decision or refile it 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 it to a misdemeanour 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

 

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