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Wobbling down a misdemeanor into an infraction

Los Angeles, CA |

A hypothetical scenario, if one of my friends pleaded guilty or nolo contendre for a misdemeanor such as PC 415-disturbing the peace, would he be able to lower her misdemeanor into an infraction after finishing her probation time?

Attorney Answers 6

Posted

No unless it was part of the deal. PC 415 is infractable but only if that's what was agreed with the DA at the time of the plea, otherwise the judge does not have power to do so.

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Anthony Michael Solis

Anthony Michael Solis

Posted

Wondering why you make this conclusion. the very words of PC 415 (punishable by jail for a period of not more than 90 days OR a fine of not more than $400) make it by definition a wobbler misdemeanor/infraction. Under PC section 17(d)(2) the court can evidently infract a 415 "with the consent of the defendant." What am I missing?

Sharon Paris Babakhan

Sharon Paris Babakhan

Posted

You are right but only if it was part of the deal with the DA or the defendant pled open to the court; otherwise if the the person pled to a PC415 as a misdemeanor it can't be reduced to an infraction unless the DA agrees with a change in plea or it was part of the deal. The judge does not have the power to reduce it if the DA does not agree. I have had so many of these as a DA and sometimes I wouldn't agree to an infraction, so it would stay as a misdemeanor. But per-plea you are right it is a wobbler and can't be either way.

Anthony Michael Solis

Anthony Michael Solis

Posted

I understand what you are saying, and it is certainly much easier with an agreement with the DA, but pursuant to the specific language of 17(d) there is no mention of the DA having any part of that process (you can object, of course). But nothing in the statute bars a motion to reduce to an infraction. Or where are you getting the authority for that. I ask only because I'm about to do a dispo like this and before I do it I don't want to later learn I need the consent of the DA, but it seems like the judge can do it anyway, over the DA's objection and not part of any deal. So if you are aware of specific authority, I'd love to know what it is.

Sharon Paris Babakhan

Sharon Paris Babakhan

Posted

Anthony, I don't know the authority for it but as a DA (when I worked as a DA) the judges always asked me and if I did not agree to reduce it to an infraction, that wouldn't happen. It is up to the DA OR only if it was part of the deal. In your case it is better if you check with the DA and get his/her consent otherwise the DA will object and the judge will not do it.

Posted

Yes. A 415 can be reduced to an infraction

No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia

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Posted

There are some charges that can be "wobbled" down to an infraction.
If there is an agreement as such it can be done and happens all the time.

Make sure that is part of any deal one may take if that is what they want.

This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply

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Posted

Get it expunged.

Andrew Roberts (818) 597-0633/ (805) 496-7777

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Posted

In either scenario, assuming probation is completed without any violations/new offenses, you can petition the court to have the conviction expunged and the court WILL (has to) grant the request. Just don't mess up and you're golden. Don't worry about the infraction bit. Just get the expungement.

No attorney-client relationship is created by communications on AVVO. Any information provided by the attorney is for general informational purposes only. Always consult with a qualified attorney who is licensed to practice in your area.

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Anthony Michael Solis

Anthony Michael Solis

Posted

But since you have to disclose expunged misdemeanors on licensing applications, etc. there is certainly value in getting it infracted, no?

Izaak David Schwaiger

Izaak David Schwaiger

Posted

It's a good question, but I think the operative wording is usually something along the lines of whether a person has ever "suffered a conviction" for a misdemeanor. I'm not sure having it infracted post-conviction could get around that. I'm also not sure what the mechanism would be to move for the infraction post-conviction, unless it would be some kind of extraordinary relief involving a withdrawal of plea. Even then, you're still skirting the issue of whether you ever "suffered a conviction." Really interesting question.

Posted

Typically, on a charge like PC 415, a reduction to an infraction is negotiated with the prosecutor before a plea is entered. If your friend entered a plea to a misdemeanor and was given probation, he or she can attempt to terminate her probation period early based on compliance. Once off probation, that person can file for an expungement, which is a procedure that allows the charge to be dismissed. Obviously, getting the charge dismissed is more advantageous to your friend than reducing to an infraction at that point.

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