How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion
A Penal Code § 17(b) motion is a petition asking the court to reduce a felony offense to a misdemeanor. This is only possible if the felony is a wobbler, meaning the offense could have been originally charged as either
- a misdemeanor or
- a felony.
A 17(b) motion can be made at the following stages of the case:
- at the conclusion of the preliminary hearing,
- at sentencing, or
- when felony probation is completed.
The full language of the code section states that:
17. (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:
(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.
(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.
(3) When the court grants probation to a defendant 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.
(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.
Being a convicted felon carries a huge burden in our society. It may be hard to get a job. State licensing boards may refuse to certify you for certain professions. You can’t own, possess or use firearms.
1. What are the benefits of reducing a felony to a misdemeanor?
The reduction of a felony charge to a misdemeanor under PC 17(b) offers multiple important benefits. These include:
- being able to say honestly that you have never been convicted of a felony (which is important for job, housing, and loan applications),
- obtaining or maintaining professional licenses,
- regaining the right to serve on a jury,1 and
- restoring your California gun rights.2
2. What are felony crimes that may be reduced to a misdemeanor?
California Penal Code 17(b) PC establishes two requirements for reducing a felony conviction to a misdemeanor:
- The underlying offense must be a wobbler,3 and
- Probation must have been granted.
In order for you to reduce your felony conviction to a misdemeanor, both of these requirements must be satisfied. This means that even if your offense was a wobbler — but you served time in the state prison — you are ineligible for this relief.
What are wobblers?
Under California law, a “wobbler” is a criminal offense that can be charged and punished as either a felony or a misdemeanor.
The list of wobblers is too numerous to detail here but includes such common crimes as
- Penal Code 459 PC California’s burglary law,4
- Penal Code 245(a)(1) PC California’s “assault with a deadly weapon” (ADW) law,5
- Penal Code 422 PC California’s criminal threats law,6
- Penal Code 273.5 PC California’s spousal battery law,7
- many California sex crimes (including Penal Code 243.4 PC sexual battery8 and Penal Code 288 PC lewd acts with a minor9 ), and
- most California fraud charges.10
Only felonies that are classified as wobblers may be reduced to misdemeanors. “Straight” felonies (ones that can only be prosecuted as felonies) are therefore not eligible for a misdemeanor reduction.11
Probation must have been granted
The second requirement is that you must have been granted probation in connection with your felony conviction.
If the court denied probation (or you violated your probation), and you were sentenced to serve time in the California State Prison, you are not eligible for a reduction to a misdemeanor.12 (In this case, you are also not eligible for an expungement of your criminal record under Penal Code 1203.4 PC.)
What about felonies that carry county jail sentences under AB 109?
Under California realignment (AB 109), a state prison sentence for a number of felonies has been replaced by a comparable sentence served in county jail. California courts treat these county jail sentences as state prison sentences for purposes of felony reductions.
This means that if you are sentenced to county jail under Penal Code 1170(h) PC for a felony, you will not be eligible to reduce your felony conviction to a misdemeanor under PC 17(b).
3. When can I bring a Penal Code 17b motion?
The judge can reduce a “wobbler” felony to a misdemeanor at any of the following points:
- The conclusion of the preliminary hearing;
- The time of felony sentencing in a California case; or
A felony can be dropped to a misdemeanor after probation if it is successfully completed.
And if you are currently serving felony probation, our California expungement lawyers can still petition the court now to drop your felony dropped to a misdemeanor after probation. In some instances, we may even be able to help you obtain an early termination of your probation in order to expedite this process.13
If you’re already completed your probation, we can ask the court to reduce your felony to a misdemeanor at any time.14
4. What factors does the court consider?
There are a variety of factors that the judge takes into consideration when deciding whether to grant a PC 17(b) felony reduction. These factors include:
- the nature of the offense,
- the facts of the case,
- your compliance with your probation terms and conditions,
- your criminal history, and
- your personal history.15
Sometimes the District Attorney will step in to argue that the conviction should not be reduced–a position which the judge may or may not consider. Other times, if the prosecutor doesn’t object, he/she may simply remain silent on the issue.
5. Should I seek expungement as well?
A PC 1203.4 California expungement–which is available for both felonies and misdemeanors–traditionally relieves you of all “penalties and disabilities” associated with your criminal conviction. These benefits of an expungement are often the ultimate goal for our clients who are seeking early termination of probation or reduction of a felony to a misdemeanor.
As Newport Beach criminal defense attorney Elisa Guadan16 explains:
“It is possible to expunge a felony conviction without first reducing it to a misdemeanor. But an “expunged misdemeanor” is better than an “expunged felony” because it preserves certain rights and benefits that can be denied even to felons who have expunged their felony convictions–the right to possess firearms, for example. This is why many clients choose to first seek a PC 17(b) felony reduction and then pursue an expungement”
6. Are there penalties that carry over once my felony has been reduced?
Yes – some of the consequences of a California felony conviction still apply even after you reduce our felony to a misdemeanor. These include:
- If the offense was a serious felony or violent felony, the conviction will remain a prior “strike” for purposes of California’s Three Strike’s Law;17
- If the offense required you to register as a sex offender pursuant to Penal Code 290 PC, you will still need to register after reducting the felony to a misdemeanor;18
- The federal government may still consider the conviction as a felony under its firearms statutes (with respect to misdemeanor crimes of domestic violence, for example); and
- Some state licensing agencies may still consider the conviction a felony (for example, the California State Bar still looks at the conviction as a felony for attorney disciplinary purposes).19
Despite common misconceptions, the right to vote isn’t revoked from all felons. You only lose your right to vote if, at the time of an election, you:
- are in state prison, or
- are on parole following a felony conviction.20
The good news is that, apart from the above exceptions, a Penal Code 17(b) felony reduction is considered a misdemeanor conviction “for all purposes.” This means that a reduced felony cannot act as a “prior” crime for a future offense that requires a predicate (that is, preexisting) felony conviction.21
7. Does a 17b reduction restore gun rights?
Getting a felony charge reduced to a misdemeanor conviction through a 17b motion restores your firearm rights under California law (as long as you have no other impediments to possessing firearms). Though note that some misdemeanor convictions carry a 10-year gun ban.22
Getting a 17b reduction restores your gun rights under federal law as well as long as a felony judgment was never entered. Once you get convicted of a felony, getting the conviction changed to a misdemeanor after the fact may not be enough to restore your gun rights.23
You can also restore your gun rights through a pardon from either the California governor or the United States President.24