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.
But there's hope. Even if you're a convicted felon, it may be possible to reduce your felony conviction to a misdemeanor. We do it for our clients all the time!
In the article below, former prosecutors (now criminal defense lawyers) explain the process in California for a felony reduction to a misdemeanor, and what it can do for you...
1. What are the Benefits of Reducing a Felony to a Misdemeanor?
This type of judicial relief offers several benefits. Some of the most common include (but are not limited to):
- 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 Makes a Felony Conviction Eligible for
Reduction to a Misdemeanor?
California Penal Code 17(b) PC establishes two requirements for reducing a felony conviction to a misdemeanor: (1) the underlying offense must be a wobbler, and (2) probation must have been granted.
What are wobblers?
The first requirement is that the offense must be what we call a wobbler.3 Under California law, a "wobbler" is an 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 which 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 reduction12 (or, unfortunately, an expungement). Serving time in a county jail is okay and does not affect your eligibility.
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.
3. At What Point Can I Get My Felony Conviction
Reduced to a Misdemeanor?
If you're currently on felony probation, our California expungement lawyers can petition the court to reduce your conviction at the conclusion of your 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 at any time.14
4. How Does the Court Decide Whether to Reduce
the Felony to a Misdemeanor?
There are a variety of factors that the judge takes into consideration when deciding whether to grant this relief. 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 prosecutor will 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. How is a Misdemeanor Reduction Related to
California expungement law traditionally relieves you of all "penalties and disabilities" associated with your criminal conviction. These are the benefits of an expungement and generally the ultimate goal when asking the court to terminate your probation or reduce a felony to a misdemeanor.
And while it is possible to expunge a felony conviction without first reducing it to a misdemeanor, an "expunged misdemeanor" is better than an "expunged felony" because it preserves certain rights and benefits that can be denied to an ex-felon.the right to possess firearms, for example.
6. Are There any Penalties that Carry Over Once
My Felony Has Been Reduced?
Yes, although they are limited. These include (but are not necessarily limited to):
- 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,16
- if the offense required you to register as a sex offender pursuant to Penal Code 290 PC, a reduction does not alleviate that requirement,17
- 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),18 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
And despite common misconception, 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
Absent the above exceptions, the good news is that 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
As Newport Beach criminal defense attorney Zachary McCready22 explains, "When it comes to seeking any type of California expungement relief.whether you're looking to clear your criminal record or reduce a felony conviction to a misdemeanor.it's critical to consult with an attorney who routinely practices this area of the law. There are so many caveats and legal nuances that make these complex laws difficult to dissect and understand. You need to know exactly what type of relief is and isn't available via these procedures."
Call us for help.
For more information about reducing your California felony conviction to a misdemeanor, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions regarding Nevada's record sealing laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.23
For more information about how to reduce a felony to a misdemeanor in Nevada, go to our page on how to reduce a felony to a misdemeanor in Nevada.
You may also find helpful information in our related articles on California Expungement Law; Clearing Your Criminal Record; Early Termination of Probation; The Benefits of an Expungement; and Restoring Your California Gun Rights.
1California Code of Civil Procedure 203(a)(5). (" (a) All persons are eligible and qualified to be prospective trial jurors, except the following.(5) Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.")
2When you are convicted of any felony offense, Penal Code 29800 PC California's felon with a firearm law imposes a lifetime ban on owning or acquiring firearms. Penal Code 29800 PC also imposes a ten-year ban on certain misdemeanor crimes. Misdemeanor crimes that aren't specifically addressed carry no ban whatsoever. If your felony is reduced to a misdemeanor that isn't listed, your firearms ban is automatically lifted. If it is reduced to one of the enumerated misdemeanors, you simply must wait out the ten year period before the prohibition will be removed.
3California Penal Code 17 -- Classification of offenses. ("(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison 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. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (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. (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.")
4Penal Code 459 PC California's burglary law. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store.with intent to commit grand or petit larceny or any felony is guilty of burglary.")
See also Penal Code 461 PC -- Punishment. ("Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.")
5Penal Code 245(a)(1) PC California's "assault with a deadly weapon" (ADW) law. ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")
6Penal Code 422 PC California's criminal threats law. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.")
7Penal Code 273.5 PC California's spousal battery law. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.")
8California sex crimes Penal Code 243.4 PC sexual battery. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).")
9Penal Code 288 PC lewd acts with a minor. ("(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.")
10Most California fraud charges, including forgery, embezzlement, and elder abuse are wobblers.
11People v. Mauch (2008) 163 Cal.App.4th 669, 674. ("The trial court's reliance on [California Penal Code] section 17, subdivision (b), was misplaced. That provision invests the trial court with discretion to treat a felony "punishable ... by imprisonment in the state prison or by fine or imprisonment in the county jail" as a misdemeanor in certain circumstances. (� 17, subd. (b).) The Legislature's use of the disjunctive "or" establishes that subdivision (b) only applies to offenses, known as "wobblers" ( People v. Statum (2002) 28 Cal.4th 682, 685, 122 Cal.Rptr.2d 572, 50 P.3d 355), for which the Legislature has authorized alternative punishment besides state prison incarceration. (See People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 329, 34 Cal.Rptr.2d 503 [trial court "may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ('wobbler'), which may be prosecuted as either a felony or a misdemeanor"].) Absent alternate punishment authorized by statute, a trial court "has no power to reduce a straight felony to a misdemeanor."")
However, there are a small number of felonies where the legislature has prescribed a fine as an alternative to state prison. For these crimes, Penal Code 18 permits the court to sentence the defendant to county jail, thus making the conviction a misdemeanor, even though the statute of conviction itself does not provide for that alternative.
This relief is upheld in Mauch at 675. ("By providing for incarceration in the county jail instead of prison, section 18 authorizes a reduction to a misdemeanor for certain felonies even though the Legislature did not provide for misdemeanor treatment in the statutory provisions defining those particular crimes. Because the Legislature has not elsewhere expressly declared any of these particular felonies may qualify as misdemeanors, section 18 creates, to coin a phrase, "stealth wobblers." Section 18's misdemeanor option, however, is limited to felonies the Legislature has specified are punishable by imposition of a fine as an alternative to state prison. ( People v. Isaia (1989) 206 Cal.App.3d 1558, 1564, 254 Cal.Rptr. 500 ( Isaia ).) Crimes falling in this category are relatively rare, but they exist. (See, e.g., �� 107 [escape from a reformatory or state hospital]; 148.3, subd. (b) [false report of an emergency]; 337b [point shaving in an athletic contest].)")
12See Penal Code 17(b), endnote 2, above.
13California Penal Code 1203.3 PC. ("(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.(B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.")
14See Penal Code 17(b)(3), endnote 2, above.
15People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978. ("We find scant judicial authority explicating any criteria that inform the exercise of [California Penal Code] section 17(b) discretion. (But see In re Anderson, supra, 69 Cal.2d at p. 627.) However, since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial." ( People v. Morales (1967) 252 Cal.App.2d 537, 547 [60 Cal.Rptr. 671]; see also People v. Giminez (1975) 14 Cal.3d 68, 73 [120 Cal.Rptr. 577, 534 P.2d 65]; In re Cortez (1971) 6 Cal.3d 78, 85-86 [98 Cal.Rptr. 307, 490 P.2d 819]; cf. People v. Mason (1971) 5 Cal.3d 759, 764 [97 Cal.Rptr. 302, 488 P.2d 630], disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 [124 Cal.Rptr. 905, 541 P.2d 545] [conditions of probation].) When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule 410. FN5 The corollary is that even under the broad authority conferred by [Penal Code] section 17(b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest "exceeds the bounds of reason." ( People v. Giminez, supra, 14 Cal.3d at p. 72; cf. Romero, supra, 13 Cal.4th at p. 531.)
16Gebremicael v. California Com'n on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1486. "Similarly, for purposes of the "Three Strikes law", the Legislature has declared a prior felony conviction proven by the prosecution as a prior strike retains its status as a felony even if it had been reduced after initial sentencing to a misdemeanor under Penal Code section 17. (Pen.Code, �� 667, subd. (d)(1), 1170.12, subd. (b)(1).)")
17California Penal Code 17 PC -- Classification of offenses. ("(e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.")
18For more information on how federal gun rights conflict with state gun rights, see our article on Domestic Violence and Gun Rights which explains why misdemeanor crimes of domestic violence may prohibit you from owning or acquiring firearms for life even when California's gun laws lift this ban.
19California Business and Professions Code 6100. ("For any of the causes provided in this article, arising after an attorney's admission to practice, he or she may be disbarred or suspended by the Supreme Court. Nothing in this article limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.")
See also California Business and Professions Code 6102. ("(b) For the purposes of this section, a crime is a felony under the law of California if it is declared to be so specifically or by subdivision (a) of Section 17 of the Penal Code, unless it is charged as a misdemeanor pursuant to paragraph (4) or (5) of subdivision (b) of Section 17 of the Penal Code, irrespective of whether in a particular case the crime may be considered a misdemeanor as a result of postconviction proceedings, including proceedings resulting in punishment or probation set forth in paragraph (1) or (3) of subdivision (b) of Section 17 of the Penal Code.")
20California Constitution Article II, Section 2, Section 4 - California Elections Code 2101. ("2101. A person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election.")
21People v. Gilbreth (2007) 156 Cal.App.4th 53, 57. (""[O]nce a court has reduced a wobbler to a misdemeanor pursuant to ... [California Penal Code] section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring."
22Newport Beach criminal defense attorney Zachary McCready represents clients who are seeking to reduce their felony convictions and/or expunge their criminal records throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
23Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's expungement laws. Their Nevada law offices are located in Reno and Las Vegas.