A Penal Code 17(b) motion is where a defendant asks the judge to reduce a felony offense to a misdemeanor. This is only possible if the felony is a wobbler, meaning it can be charged as either a misdemeanor or a felony. The 17(b) motion can be made at the conclusion of the preliminary hearing, at sentencing, or when felony probation is completed.
17(b) PC reads that "(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 . . . (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."
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. Below, our California criminal defense lawyers explain the process and benefits of a felony reduction to a misdemeanor in California.
- 1. What are the benefits of reducing a felony to a misdemeanor?
- 2. Which felony convictions can be dropped to misdemeanors?
- 3. When can I bring a Penal Code 17b motion?
- 4. What factors does the court consider?
- 5. Should I seek an expungement as well?
- 6. Are there penalties that carry over once my felony has been reduced?
If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.
Reduction of a felony 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
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 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 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).
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
- After you have been sentenced and have completed your felony probation.
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
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 prosecutor 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.
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"
Yes--a few of the penalties of a California felony conviction do carry over even after you reduce our felony ot 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
Call us for help . . .
If you or a loved one is in need of help with reducing a felony to a misdemeanor under Penal Code 17(b) PC and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions regarding Nevada's record sealing laws. 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.
¿Habla español? Visite nuestro sitio Web en español sobre la reducción de condenas por delitos graves a delitos menores.
- California 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 have not had their felony reduced to a misdemeanor], and whose civil rights have not been restored.")
- When 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 your felony is reduced to one of the enumerated misdemeanors, you simply must wait out the ten year period before the prohibition will be removed.
- California Penal Code 17 PC -- Classification of offenses [provides for reduction of wobbler felony to misdemeanor]. ("(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: . . . (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.")
- Penal Code 461 PC -- Punishment [for burglary; wobbler that can be reduced from felony to misdemeanor]. ("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.")
- Penal Code 245(a)(1) PC California's "assault with a deadly weapon" (ADW) law [wobbler that can be reduced from felony to misdemeanor].
- Penal Code 422 PC California's criminal threats law [wobbler that can be reduced from felony to misdemeanor].
- Penal Code 273.5 PC California's spousal battery law [wobbler that can be reduced from felony to misdemeanor].
- Penal Code 243.4 PC sexual battery [wobbler that can be reduced from felony to misdemeanor].
- Penal Code 288 PC lewd acts with a minor [wobbler that can be reduced from felony to misdemeanor].
- Most California fraud charges, including forgery, embezzlement, and elder abuse are wobblers that can be reduced from felonies to misdemeanors.
- People 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. (section 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."")
- See Penal Code 17(b) [reduction of wobbler felonies to misdemeanors], endnote 2, above.
- California Penal Code 1203.3 PC [early termination of probation; sometimes precedes reduction of a felony to a misdemeanor]. ("(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.")
- See Penal Code 17(b)(3) [reduction of wobbler felonies to misdemeanors], endnote 2, above.
- People 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; see also People v. Giminez (1975) 14 Cal.3d 68, 73; In re Cortez (1971) 6 Cal.3d 78, 85-86; cf. People v. Mason (1971) 5 Cal.3d 759, 764, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. [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.)
- Newport Beach criminal defense attorney Elisa Guadan fights for justice for defendants in Orange County Superior Court, both by seeking to beat the original charges and by helping clients find get convictions off their record through felony reductions and expungements.
- Gebremicael 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).)")
- California Penal Code 17 PC -- Classification of offenses [not affected by PC 17(b) felony reduction].
- 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 [felony reduction to a misdemeanor], including proceedings resulting in punishment or probation set forth in paragraph (1) or (3) of subdivision (b) of Section 17 of the Penal Code.")
- California 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.")
- People 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.")