Penal Code 17(b) PC - Motion to Reduce Felony to Misdemeanor
Many crimes in the State of California are categorized as "wobbler" offenses, meaning they may be charged as misdemeanors or felony offenses. In such cases, a common defense strategy is to file a motion to reduce the felony to a misdemeanor charge.
The rules for reducing felonies to misdemeanors are contained in California's Penal Code 17(b) PC. This motion can provide a range of benefits, such as allowing those convicted of a felony to avoid the stigma and restrictions associated with having a criminal record.
It is also essential in helping individuals with low-level offenses get back on their feet without facing the consequences of being labeled as felons.
Simply put, a PC 17(b) motion is a petition asking the court to reduce a felony crime to a misdemeanor. However, it's only possible if the felony is a wobbler that could have been filed initially as either a misdemeanor or a felony. A 17(b) motion could be filed after the preliminary hearing, at sentencing, or when felony probation is completed.
Penal Code 17(b) says, “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or county jail under the provisions of subdivision (h) of Section 1170, or fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
(1) After a judgment imposing a punishment; (2) When the court commits the defendant to the Division of Juvenile Justice and designates the offense as a misdemeanor; (3) When the court grants probation to a defendant and declares the offense to be a misdemeanor.
(4) When the prosecuting attorney files in a court that the offense is a misdemeanor; (5) At the preliminary examination, the magistrate determines that the crime is a misdemeanor.
Avoiding a felony conviction can be crucial to future job opportunities. Let's review this subject in more detail below.
What Types of Offenses Can Be Reduced to Misdemeanors?
As noted, under PC 17(b), only criminal offenses categorized as "wobblers" can be reduced from felonies to misdemeanors when a motion is filed.
Serious crimes that are always charged as felonies (e.g., murder, rape) are not eligible to be reduced to misdemeanors—although, in some instances, an attorney can negotiate for reduced charges, which is having you charged with a lesser crime as part of a plea bargain.
For example, suppose you're accused of rape (a felony). In that case, your attorney may negotiate to have you charged with sexual battery (a wobbler)—then possibly file a motion later to reduce a felony sexual battery charge to a misdemeanor.
There are hundreds of offenses in California that are "wobblers." Common examples include, but are not limited to, the following:
- Assault with a deadly weapon - Penal Code 245(a)(1) PC;
- Criminal threats - Penal Code 422 PC;
- Corporal injury to spouse - Penal Code 273.5 PC;
- Child endangerment - Penal Code 271 PC;
- Lewd acts with a minor - Penal Code 288 PC;
- Grand theft - Penal Code 487 PC;
- Burglary - Penal Code 459 PC;
- Statutory Rape - Penal Code 261.5 PC;
- Sexual battery - Penal Code 243.4 PC.
When Can an Attorney File a Motion?
Under PC 17(b), a California criminal defense attorney can file a motion to reduce a felony to a misdemeanor at the following three points in a criminal case.
At the Conclusion of the Preliminary Hearing
The preliminary hearing is the first stage in the pre-trial process—the time at which the judge considers the facts of the case and determines whether there is enough evidence against you to warrant taking the matter to trial.
If the prosecutors convince the judge to move forward with felony charges, your attorney can file a motion to reduce the charge to a misdemeanor.
Suppose you are convicted of a felony "wobbler" offense. In that case, your attorney can file a motion to reduce the charge to a misdemeanor during your sentencing hearing, provided that the judge is willing to impose probation instead of prison time. If you're sentenced to prison, you're ineligible for a reduction.
After Fulfilling Your Felony Probation
Suppose you are convicted of a felony "wobbler" and sentenced to probation. In that case, your attorney can file the motion to reduce the charge to a misdemeanor after you've satisfactorily completed all conditions of your probation.
At that point, if the judge grants the motion, the court will amend its verdict from guilty of a felony to guilty of a misdemeanor.
What Are the Eligibility Requirements?
Not all felony offenses in California can be reduced to a misdemeanor. To qualify for a reduction, you must be granted probation and the following:
- If you were sentenced to a state prison or county jail under AB 109, you can't file a 17(b) motion, and this also thus includes a suspended state prison sentence;
- As noted, your underlying offense must a categorized as a wobbler;
- A felony conviction can only be reduced to a misdemeanor if you were sentenced to probation. You're not eligible if you're sentenced to prison and serve time;
- You must have completed the terms of your probation, including paying all your fees and fines.
Of note is that under California realignment, known as AB 109, a state prison sentence for a particular felony was replaced by sentences in a county jail, which are considered prison sentences and not eligible for a reduction.
What Are the Benefits of a Reduction?
One of the most significant benefits of having your felony reduced to a misdemeanor is that you no longer have the stigma associated with being labeled a felon.
This means you can honestly answer "no" when asked on job and scholarship applications whether or not you have ever been convicted of a felony.
However, the stigma is not the only benefit associated with reducing a felony to a misdemeanor. Having your felony reduced also means the following:
- You are no longer banned from owning or possessing firearms unless your charges were domestic violence-related;
- You will no longer be denied certain kinds of professional licenses (e.g., medical, legal), and it will reduce any risk to your current licenses;
- Your sentencing options are not increased if you are convicted of a future crime;
- Your employment options aren't restricted, meaning you can't work in certain professions with a felony record.
What Factors Are Considered?
When deciding to reduce a felony charge to a misdemeanor, the judge considers several factors, including the following:
- Your criminal history (the cleaner your record, the better);
- Whether you have fulfilled all of the conditions and terms of your probation;
- The nature and seriousness of the offense;
- Your behavior since the conviction;
- Evidence that you have been rehabilitated since the conviction;
- Testimonies from character references;
- Your age at the time of the offense.
In some cases, the prosecutor may argue against granting the motion to reduce the crime to a misdemeanor.
After the hearing, the judge will make a ruling on your motion. A felony reduction to a misdemeanor is often the first step towards pursuing an expungement under California Penal Code Section 1203 PC.
If your offense counts as a strike under California's Three Strikes Law, the strike will remain even if your felony is reduced to a misdemeanor. Also, if you were required to register as a sex offender under California Penal Code Section 290 PC, you will still be required to register after the reduction.
Federal law prohibits a felon from possessing or owning a firearm. However, if you are successful in your Penal Code 17(b) PC motion to reduce a felony and you don't have any other felony convictions, you might be able to have your gun rights restored.
You will need to present the court with supporting documentation that would justify a decision to reduce your felony offense to a misdemeanor. Our criminal defense attorneys can present compelling evidence to convince the judge to grant the motion.
Contact us by phone or using the contact form for an initial case review. Eisner Gorin LLP is located in Los Angeles, CA.