CALIFORNIA PENAL CODE 17(B) – REDUCING A FELONY CONVICTION TO A MISDEMEANOR
If you have been found guilty of a California felony, you may be able to have your conviction reduced to a misdemeanor. Doing so can come with a number of benefits, and can eliminate many of the burdens experienced by convicted felons. This relief is available to you if:
- You were convicted of a felony that is considered a “wobbler” offense. Meaning the crime can be charged as either a felony or a misdemeanor; and
- You were sentenced to, and have completed, felony probation for the underlying charge.
WHY A 17(B) REDUCTION IS BENEFICIAL
While it may seem obvious, having a misdemeanor conviction on your record far outweighs having a felony conviction. Just being able to lawfully state that you haven’t been convicted of a felony can impact your career, and overall living situation immensely. It may be the difference in maintaining or obtaining various licenses, and have a major impact on your 2nd Amendment right to possess a firearm.
WHICH FELONY OFFENSES CAN BE REDUCED?
As noted above, the underlying charge must be a “wobbler” offense. This is the common term for an offense that can be charged as either a felony or a misdemeanor. California has a wide range of wobbler offenses. Some of the more common wobbler offenses include:
- Assault with a Deadly Weapon – PC 245(a);
- Battery – PC 273;
- Burglary – PC 459;
- Criminal Threats – PC 422
- Numerous Theft Crimes;
- Numerous Sex Crimes; and
- Numerous Fraud Charges
In order to qualify for a 17(b) reduction, you must have been granted probation as part of your sentence for the underlying felony. If probation was not granted, and you were sentenced to state prison, you likely will not be eligible for a 17(b) reduction.
17(B) REDUCTION AND AB 109
Since the passing of AB 109, many felony convictions that originally resulted in state prison sentences, were reduced to county jail sentences. For purposes of 17(b), these county jail sentences are still seen as state prison sentences. As such, convictions that were amended to county jail under AB 109 do not qualify for 17(b) reduction.
WHEN AM I ELIGIBLE TO HAVE MY FELONY CONVICTION REDUCED TO A MISDEMEANOR?
Your Felony can be reduced at a number of stages throughout your case. It can be reduced once the preliminary hearing has concluded; it can be reduced during the sentencing phase of your case; or it can be reduced once you have successfully completed the terms of your felony probation. Even if you are still on probation, it is important to consult with one of our attorneys to determine if your probation can be terminated early. If it can, you may be eligible for a 17(b) reduction, and an expungement.
WHAT FACTORS DOES THE COURT CONSIDER IN DETERMINING WHETHER OR NOT TO REDUCE YOUR FELONY?
In short, the court will view your cases as a whole, and consider a number of factors in making its determination. The more common factors include:
- The severity and nature of the underlying charge;
- The specific facts of your case;
- Your compliance with your terms of probation;
- Your prior criminal history; and
- Any relevant personal circumstances.
MISDEMEANOR EXPUNGEMENT VS. FELONY EXPUNGEMENT IN ORANGE COUNTY
Because both felonies and misdemeanors can be expunged, many of our client’s wonder why it is necessary to have their felony reduced. In short, an expunged misdemeanor looks much better on your record than an expunged felony. A felony conviction often requires you to loose a number of rights. Having your felony conviction reduced to a misdemeanor before you have it expunged can preserve many of these rights. This is most common in cases where gun rights have been taken away.
California Penal Code 17(b) allows the moving party to request that their Felony conviction be reduced, and appear as a misdemeanor conviction on their criminal record. Under Meyer v. Superior Court, there is no deadline by which a 17(b) motion must be filed.
The presiding Judge will have wide discretion in determining whether or not to grant a 17(b) motion. Additionally, the Prosecution (District Attorney or City Attorney), may oppose the motion. In addition to the filed moving papers, a court hearing is almost always required in a 17(b) case. A 17(b) motion can be heard at the same time as a PC 1203.4 Petition for Dismissal (Expungement). Because of the wide discretion held by the Judge, it is essential to present a well crafted argument as to why your conviction should be reduced. One of our experienced attorneys can greatly increase your chances of being granted a 17(b) reduction.
According to PC 17(b), the underlying charge must be considered a “wobbler” offense. This means, that the offense can be charged as either a felony or a misdemeanor. California has a wide range of wobbler offenses.
Once granted, a 17(b) reduction will reduce your conviction to a misdemeanor conviction “for all intents and purpose”. This can make a huge difference in employment and licensing opportunities. Additionally, you can truthfully answer that you do not have a felony conviction record.
CALIFORNIA PENAL CODE 17
(a). A felony is defined as a crime punishable by at least one year in state prison, or by death. All other crimes are either infractions or misdemeanors.
(b). Under the following circumstances, a felony, at the discretion of the court, will be a misdemeanor, for all intents and purposes:
(1). If a punishment other than state prison is imposed;
(2). When the court designates the conviction a misdemeanor, after the defendant is committed to the Youth Authority;
(3). When probation is granted by the court, and the court declares the conviction, on application by the defendant or at the time probation is granted, a misdemeanor;
(4). When the prosecution specifies that the offense is a misdemeanor in the complaint;
(5). When the offense is declared a misdemeanor offense at the preliminary hearing.
PROP 47’s IMPACT ON 17(B)
Generally, there are two types of felony offenses that can be reduced to misdemeanors under PC 17(b). As discussed above, “wobbler” offenses are eligible for reduction.
There are offenses that were charged as felonies, but could have been charged as misdemeanors. In other words, crimes that can be charged as either, depending on the circumstances of the case. California has over 200 wobbler offenses. Some of the more common wobblers include:
- Some sex crimes;
- Criminal threats;
- Assault; and
- Some fraud crimes.
In addition to the offense being a wobbler, you must have also been sentenced to probation in order to be eligible for 17(b) reduction. If you were sentenced to State Prison, or denied probation, you may not be eligible.
Alternatively, Prop 47 may be another avenue by which your conviction can be reduced. Prop 47 reclassified may low level offenses from felonies to misdemeanors. These include a number of theft and drug charges. For example:
- Many theft charges;
- Forgery charges;
- Burglary charges;
- Fraud charges; and
- Drug possession charges.
The good news about Prop 47, which was passed in November of 2011, is that it applies retroactively. This means, even if your conviction for one of the offenses occurred prior to Prop 47 passing, you will likely still qualify to have the conviction reduced.
However, you may not qualify if:
- You were required to register as a sex offender; or
- You were convicted of a “violent” felony.
In determining whether your conviction can be reduced, the court will consider whether you present an unreasonable risk to the public. This requires the court to consider your criminal history, the specific facts of your case, and other relevant information as determined by the Judge.
RESTORING YOUR RIGHTS WITH PC 17(B)
Many criminal convictions in California can have an impact on your right to bear arms under the Second Amendment. For the most part, a felony conviction will result in a lifetime ban on your ability to own or possess a firearm. Even some misdemeanors can lead to a firearm ban.
California law regarding gun rights / restrictions can be very complex, and often requires a skilled and experienced attorney to navigate through. If your gun rights have been restricted because of a felony conviction, there may be options for you to restore your rights. Under California law, there are two basic ways in which to have your gun rights restored. One is to have your felony conviction reduced to a misdemeanor, and the other is to receive a pardon from the Governor.
If you or a loved one has lost their right to possess a firearm, contact one of our attorneys today to discuss your options.
A PC 17(b) reduction is typically the fastest, and easiest way to restore your Second Amendment rights. As discussed above, a 17(b) reduction will reduce your felony conviction to a misdemeanor for all intents and purposes. As such, if your gun rights have been restricted simply due to a felony conviction, the granting of a 17(b) can restore your rights. This is why reducing your felony to misdemeanor, prior to filing for an expungement, is always a good idea.
If a 17(b) reduction is not an option for you, it still may be possible to have your gun rights restored. This can be done by obtaining a Pardon from the Governor of California. The main factor in considering whether a Pardon will be granted is your criminal history. Typically, a Pardon will require good behavior for a long period of time. The general rule of thumb is that you should have about 10 years of a clean criminal record before requesting a Pardon.
Gun rights are not the only rights that a felony conviction can restrict. In addition, many of our clients are interested in restoring the following rights:
- Their right to serve on a jury;
- Their right to vote.
FILING MULTIPLE MOTIONS TOGETHER
Most of court clients are not looking just to have their felony conviction reduced. In most cases, the ultimate goal is to have their conviction expunged as well. As discussed above, there are a number of advantages to have your conviction reduced prior to having it expunged. However, this does not mean that the various motions have to be filed separately. An experienced attorney will combine multiple motions in order to save you time and money. At the Record Expungement Attorney Law Firm, we understand that your case is often time sensitive. Many of are clients need to have their cases resolved within a certain time frame in order to pass an upcoming background test or application. Filing motions together can allow your case to be resolved in a much shorter time period. For example, it is very common to file a 17(b) Motion along with a PC 1203.4 Petition for Dismissal. If granted, in addition to your conviction being reduced, it will also be expunged from your record. Similarly, if you are still on probation, a Motion for Early Termination of Probation can be filed so that your conviction can be reduced and/or expunged.
CONTACT THE RECORD EXPUNGEMENT ATTORNEY LAW FIRM TODAY
Just because you were convicted of a felony, does not mean you need to live the rest of your life as a convicted felon. There are a number of ways to clean your record, and possibly even remove your felony conviction altogether. Even if you are just looking for a felony expungement, you should consider the benefits of first reducing your conviction to a misdemeanor. Doing so can restore important rights that may have been taken away as the result of your conviction. Our experienced attorneys will help you navigate through the confusion of trying to clear your record.
During your free consultation, we will determine which record clearing avenue makes most sense for you. Whether it’s an expungement, early termination of probation, 17(b) reduction, arrest record sealing, or some combination, our law firm is fully equipped to handle your case. Contact the Record Expungement Attorney Law Firm today at 714-627-5727.