Hundreds of criminal offenses in California are designated as wobblers. These are crimes that the State of California may charge alternatively as felonies or misdemeanors. One important thing to know is that unless it is clear that the crime has been charged as a misdemeanor, a wobbler is a felony unless and until it becomes a misdemeanor. For crimes charged as wobblers, California law allows a person to file a motion to reduce a felony conviction to a misdemeanor. This can be done at any time, even if a significant number of years have passed since the conviction.
A felony conviction has serious, burdensome consequences. It may make finding a job or obtaining a professional license difficult. If you are convicted of a felony you are prohibited from possessing, owning, or using firearms.
California allows you to petition the court by filing a 17(b) motion. It can be made at the conclusion of the preliminary hearing or sentencing. It can be made when felony probation is completed or contemporaneously with requesting an expungement. The primary requirement for filing this type of motion is that the offense could have been originally charged as either a misdemeanor or a felony – a wobbler. Felonies that can only be prosecuted as felonies are not eligible for reduction to a misdemeanor.
The second requirement for filing a 17(b) motion is that probation must have been granted for the offense. If you were denied probation and sentenced to serve prison time, you are not eligible for a misdemeanor reduction. Under realignment, California law considers county jail sentences as state prison sentences for purposes of felony reductions.
The relevant part of California Penal Code § 17 (b) PC reads as follows:
“(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances . . . (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”
The granting of the motion is at the discretion of the judge. Also, the prosecutor may oppose the reduction. The court typically considers the facts of the case, the nature of the offense, as well as your personal and criminal histories. The extent to which you complied with the terms and conditions of your probation is another important factor that will affect whether your 17(b) motion is successful.
It is possible to file a 17(b) motion for a felony reduction when you file an expungement petition. This will enable you to have an expunged misdemeanor instead of an expunged felony on your record. This can help you retain certain rights that the law may deny even to felons who have expunged their felony convictions, such as the right to own and possess firearms.
Expungement and felony reduction may require the advice and guidance of an experienced criminal attorney. The Dolan Law Offices can answer your questions and help you with these important, beneficial post-conviction tools. John Patrick Dolan has forty years of criminal defense and post-conviction experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.