California Penal Code 17 permits many people convicted of felonies to amend their conviction to a misdemeanor. Upon reduction to a misdemeanor, the misdemeanor can then be expunged or dismissed under California Penal Code 1203.4 or 1203.4a.
Penal Code 17(b) permits a defendant to ask the court to declare a prior felony a misdemeanor. After this, you may answer “no" to a question asking whether you have been convicted of a felony or have a felony on your record.
“Wobbler" offenses may be reduced. 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. 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.
Only “wobblers" may be reduced. A crime that is a “straight felony" may not be reduced under Penal Code 17(b). People v. Mauch. 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.
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.
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. 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.
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. Even if the defendant pleaded to a felony, he or she may still seek reduction at a later time.
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. Contact a California expungement lawyer for other techniques for removing your name from sex offender registration lists.
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.
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. However, one should be careful regarding federal felon in possession statutes and consult a qualified California expungement lawyer.
Trial courts have broad authority in ruling on motions to reduce a crime to a misdemeanor. People v. Hawkins.
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. 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.