Application for Reduction of a California Felony Offense to a Misdemeanor

A person convicted of a felony offense in California may be able to have the offense reduced to a misdemeanor. California law provides specific guidelines for when reduction is possible.

By law, some crimes committed in California can be charged only as felonies. Some can be only misdemeanors. But some crimes can be charged as either a felony or a misdemeanor depending on the circumstances of the crime.

These offenses are known as “wobbler” offenses. If you were convicted of a crime that can be charged only as a felony, you are not eligible for the reduction of your offense to a misdemeanor. But if you were convicted of a felony wobbler offense, you may, under certain circumstances, have your felony reduced to a misdemeanor.

California Penal Code 17(b) describes when a wobbler crime is considered a misdemeanor.  That section states in part that an offense is a misdemeanor if the court grants probation and (1) at that time declare the offense to be a misdemeanor or (2) declares the offense a misdemeanor upon application of a defendant or probation officer.

In other words, two requirements must be satisfied before an offender may apply to have a felony reduced to a misdemeanor: first, the offense must have been a wobbler offense, and second, the court must have granted probation.

If the court imposes imprisonment in state prison or imprisonment in a county jail under California’s Public Safety Realignment Initiative (Penal Code 1170(h)), even if the sentence is suspended, the felony may not be reduced. However, imposition of a county jail term that does not fall under Penal Code 1170(h) in addition to probation does not disqualify a felony from being reduced to a misdemeanor.

Offenses that are wobbler offenses

The first requirement for the reduction of a felony to a misdemeanor is that the offense charged was a wobbler offense. There are numerous offenses that qualify as wobblers. Some of the more commonly charged wobbler offenses include:

• Burglary (Penal Code 459)
• Grand theft (Penal Code (Penal Code 487)
• Assault with a deadly weapon (Penal Code 245(a)(1))
• Vehicular manslaughter (Penal Code 192(c)(1))
• Criminal threats (Penal Code 422)
• Spousal battery (Penal Code 273.5)
• Sexual battery and lewd acts with a minor (Penal Code 243.4 PC and Penal Code 288)
• Fraud
• Unlawful sexual intercourse (Penal Code 261.5(c) and (d))

*Note: Determining whether an offense is a wobbler offense requires careful parsing of the law defining the offense. Before you file an application to have a felony reduced to a misdemeanor, consult an experienced attorney to make sure you qualify.

Procedure for reducing a felony to a misdemeanor

A magistrate judge may reduce a felony charge to a misdemeanor under Penal Code 17(b)(5) before, during, or after the preliminary hearing, which is a hearing to determine whether there is enough evidence to hold a defendant to answer to the felony charges brought against him or her. The court may also, on its own, reduce the charge to a misdemeanor under Penal Code 17(b)(3) at the time of sentencing when he or she grants probation.

If the court does not reduce the charge on its own, a defendant or a probation officer may apply to the court to have the charge reduced. The application, authorized by Penal Code 17(b)(3), may be made at any time after the court imposes probation and does not depend on the plea the defendant entered; that is, a plea of guilty or nolo contender to a felony does not preclude a defendant from seeking to reduce that felony to a misdemeanor. A defendant may file an application even before completing probation or may file years after probation has ended.

After the Penal Code 17(b)(3) application is filed, the court holds a hearing to determine whether to reduce the felony conviction to a misdemeanor. The reduction is discretionary. Factors that the court considers include a defendant’s criminal and personal history, the nature of the offense charged, the facts of the case, compliance with probation, the general principles of sentencing, and the public interest. The Prosecutor may oppose the application or may state no objection to it. If the judge reduces the offense to a misdemeanor, the Prosecutor may not appeal.

Effects of having a felony reduced to a misdemeanor

Many benefits accompany the reduction of a felony to a misdemeanor. A felon is prohibited from obtaining certain state licenses, but, if the felony is reduced, a defendant may obtain such a license.

Reduction helps in employment and loan opportunities since the defendant may honestly state that he or she was never convicted of a felony. The right to serve on a jury is restored. In some instances, the reduction of a felony to a misdemeanor restores a defendant’s gun rights.

But the reduction does not erase all the effects of a felony conviction. If the offense was a serious felony or violent felony, the conviction will still be considered a “strike” for purposes of California’s Three Strike’s Law. It does not eliminate the duty to register as a sex offender. The reduction does not prevent the federal government from classifying a conviction as a felony for purposes of federal firearms laws.

Final Considerations

If you were convicted of a felony wobbler offense in California and sentenced to probation, you have the right to apply to have that felony reduced to a misdemeanor. Whether the felony is reduced is within the discretion of the court, and the timing and content of an application are important in convincing the court to make the reduction. Obtaining such a reduction carries significant benefits for a defendant.

Most counties have forms to complete for a Penal Code 17(b)(3) motion, but such generic fill-in-the-blank forms may not be suitable for every situation in which a defendant seeks to reduce a felony to a misdemeanor. To make the most of your right to apply, consult experienced, competent legal counsel to make the application for you.