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How can a felony burglary charge be dropped to a misdmeanor?

Moreno Valley, CA |
Attorney answers 3


Same answer (with some typos corrected!):

The filing of the actual charges in court is up to the lawyers in the District Attorneys Office. They can review the police report and file whatever charges they think are supported by the evidence. As to crimes like burglary and theft, they can be filed as either felonies or misdemeanors. So, the DA would exercise discreton to decide which way to file it.

If the case is filed in court as a felony, the judge can grant a motion pursuant to Penal Code Section 17(b) to reduce the charge to a misdemeanor at the time of a preliminary hearing or at the time of a plea or at sentencing. The prosecutor can also agree to reduce the charge.

If you are charged with this offense, you need to see a competent and vigorous criminal defense lawyer as soon as possible. Good luck!

This is not legal advice. In order to get legal advice, you need to retain a lawyer and establish an attorney client relationship. So, talk to your lawyer! [I am licensed to practice law in the state of California and am admitted to the federal courts in California, Washington D.C., the Ninth Circuit, the U.S. Supreme Court and a number of other federal Circuit and District courts. For legal advice, you need to retain a lawyer in the jurisdiction in which the matter is pending.]


burglary is a very different charge from retail theft. if the facts do not support a charge of burglary, your attorney will be able to sort this out for you. Burglary is pretty much always a felony. Retail Theft can be either a misdemeanor or felony (depending upon the amount allegedly stolen and/or whether there is a prior retail theft background). Usually, when Burglary is amended to a misdemeanor, the prosecutor must agree to amend the charge to misdemeanor theft and recommend a misdemeanor sentence to avoid felony probation or jail. Call Mark Haushalter in your area for a solid criminal defense attorney.


In a shoplifting situation where they charge burglary, it is going to be second degree burglary. (First degree is residential burglary.)

Second degree burglary is a "wobbler" meaning it can be either a felony or a misdemeanor. Unless there are priors, a huge dollar amount of theft or other aggravating factors, the case will likely be charged as a misdemeanor. If you're looking at what the police arrested you for, then they will have likely arrested you on the felony. The final decision on what to file is up to the prosecuting agency in your jurisdiction.

If for some reason it is filed as a felony, it can still be reduced, either by the judge or by the prosecution.

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