17b Motion – to Reduce a Felony to a Misdemeanor

A Penal Code § 17(b) motion is where you ask 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:

1. at the end of the preliminary hearing,
2. at sentencing, or
3. 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.

There is still hope, though. Below, our California criminal defense lawyers explain the process and benefits of a felony reduction to a misdemeanor in California.

• 1. Charge Reduction Benefits
• 2. Eligible Felonies
• 3. When can I bring a Penal Code 17b motion?
• 4. Factors Courts Consider
• 5. Can I get an expungement as well?
• 6. Do any felony penalties carry over?
• 7. Does a 17b reduction restore gun rights?
• Additional Reading

If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.

1. Charge Reduction Benefits

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 gun rights.²

2. Eligible Felonies

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,³ and
2. Probation must have been granted.

For you to lessen 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 a reduction.

What are wobblers?

Under California law, a “wobbler” is a crime that can be charged 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 – Burglary,⁴
• Penal Code 245(a)(1) PC – Assault with a deadly weapon (ADW),⁵
• Penal Code 422 PC – Criminal threats,⁶
• Penal Code 273.5 PC – Spousal battery,⁷
• many sex crimes (including Penal Code 243.4 PC – Sexual battery⁸ and Penal Code 288 PC – Lewd acts with a minor⁹ ), and
• most fraud charges.¹⁰

Only felonies that are classified as wobblers may be lessened 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?

They are not eligible for a charge reduction.

California realignment (AB 109) allows you to serve county jail rather than state prison for some felonies. However, 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 lessen your felony conviction to a misdemeanor through 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:

• When your preliminary hearing ends;
• When you are sentenced; or
• When you complete probation.

A felony can be dropped to a misdemeanor after probation if it was a wobbler offense and you successfully completed the terms and conditions of probation.

If you are currently serving felony probation, we can petition the court now to drop your felony to a misdemeanor after probation. We may even be able to get you an early termination of your probation to speed up this process.¹³

If you have already completed probation, we can ask the court to lessen your felony to a misdemeanor at any time.¹⁴

4. Factors Courts 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:

1. the nature of the offense,
2. the facts of the case,
3. your compliance with your probation terms and conditions,
4. your criminal history, and
5. 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.

5. Can I get an expungement as well?

Yes. Once you complete probation, you should be eligible to get your case expunged. An expungement relieves you of all “penalties and disabilities” associated with your criminal conviction.

As California criminal defense attorney John Murray¹⁶ explains:

“It is possible to expunge a felony conviction without first lessening it to a misdemeanor. However, 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. Do any felony penalties carry over?

Yes – some of the consequences of a California felony conviction still apply even after it gets reduced to a misdemeanor. These include:

• If the offense was a serious 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 lessening the felony to a misdemeanor;¹⁸
• The federal government may still consider the conviction as a felony under its firearms statutes; 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 is not revoked from all felons. You only lose your right to vote if, at the time of an election, you:

1. are in state prison, or
2. 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 preexisting felony conviction.²¹

7. Does a 17b reduction restore gun rights?

Getting a felony charge lessened 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). However, note that some misdemeanor convictions carry a 10-year gun ban.²²

Getting a 17b reduction also restores your gun rights under federal law only if 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 regain 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

See our article, How to restore your gun rights after a criminal conviction.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Low-Level, but High Speed?: Assessing Pretrial Detention Effects on the Timing and Content of Misdemeanor versus Felony Guilty Pleas – Justice Quarterly.
• Misdemeanor and Felony Diversion Program Success – Indiana State University.
• Felony and Misdemeanor: A Study in the History of Criminal Law – University of Pennsylvania Press.
• The Consequences of Criminal Convictions for Misdemeanor or Felony Offenses – Washington & Lee Journal of Civil Rights and Social Justice.
• Criminal Nonsupport and a Proposal for an Effective Felony-Misdemeanor Distinction – Hastings Law Journal.

Legal References: