Penal Code Section 17(b); Prop 47
Being convicted of a felony is a heavy burden and can have severe consequences when attempting to get jobs, loans, and licenses through the state board. A felony conviction also makes you ineligible for jury duty and prevents you from being able to own, possess, or use a gun. Felonies can also have devastating immigration consequences. Getting your felony reduced to a misdemeanor can help with immigration and restore many of these rights.
An experienced criminal defense attorney gives you your best opportunity to have your felony reduced by filing a motion explaining how the felony conviction is holding you back in life. Many courts understand that a felony conviction should not spell the end of a productive career and if explained properly, may not oppose the motion. A qualified criminal defense attorney will present the positive qualities and contributions an individual has made to society, helping the court understand why the felony should be reduced to a misdemeanor.
Eligibility – Which felonies can be reduced to a misdemeanor?
There are two legal bases for reducing a felony to a misdemeanor: (1) California Penal Code 17(b) and (2) Prop 47.
- California Penal Code 17(b) – "Wobbler Offenses"
If your felony conviction is for a "wobbler" offense and probation was granted, you are eligible to have your felony reduced to a misdemeanor.
An offense is a "wobbler" if it is an offense that could have been charged as either a misdemeanor or a felony. There are over 200 "wobblers", or felony offenses that could have been charged as a misdemeanor. Some commonly charged wobblers include California's criminal threats, assault with a deadly weapon, various possession of firearm offenses, many sex crimes, or fraud charges.
Not only must you have been convicted of a wobbler to be eligible for a reduction, you must have also been granted probation. If you were denied probation or sentenced to prison time, you do not qualify for reduction to a misdemeanor unless it is a Prop 47 eligible offense (see below). County jail is okay.
Reduction to a misdemeanor is not automatic. The court will consider various factors in determining whether or not to reduce your felony like the underlying facts of the case or whether you complied with your probation terms, other criminal history, or your personal history.
- Prop 47 – Reclassification of Low Level Theft and Drug Possession Cases to Misdemeanors
On November 4, 2011, Prop 47 passed re-classifying qualifying certain low level theft and drug possessions offenses as misdemeanors. These offenses include:
- P.C. § 459 Commercial Burglary of a Store
- P.C. § 470 Forgery
- P.C. § 476a Fraud/Bad Checks
- P.C. § 487 Grand Theft
- P.C. § 496(a) Possession of Stolen Property
- P.C. § 666/484(a) Petty Theft with Prior Convictions
- H.S. § 11350(a) Possession of a Controlled Substance
- H.S. § 11357(a) Possession of Concentrated Cannabis
- H.S. § 11377(a) Possession of Methamphetamine
The law is retroactive. What this means is that if you were convicted of one of these offenses as a felony, you can have your felony resentenced as a misdemeanor in most cases. You do not qualify for your felony to be resentenced to a misdemeanor if:
- You have been convicted of what the law considers a "serious" or "violent" felony
- You have been required to register as a sex offender for a prior sex offense conviction
If you are eligible to have your felony resentenced to a misdemeanor, the judge is required to do so unless he determines that you are an "unreasonable risk to public safety." In determining whether a person poses an unreasonable risk to public safety the judge will consider the length of the prison sentence, how long ago the offense took place, other criminal history, underlying facts of the case or any other evidence the judge deems believes is relevant.
Timing – When can a felony be reduced to a misdemeanor?
When one can have his or her felony reduced to a misdemeanor depends on if it is a 17(b) or Prop 47 reduction. Under Prop 47, a person can have a felony offense reduced at any time whether you are currently in prison for an offense or the offense is several years old.
For reduction under 17(b), you can petition to have your felony reduced to a misdemeanor
- At the of your preliminary hearing;
- At the time of your sentencing;
- If you have already been sentenced and are on probation; or
- If you have already completed probation
If you are currently on probation and are seeking to reduce your felony to a misdemeanor either under 17(b) or Prop 47, you may also qualify for an early termination of probation. If so, we can also seek to have your case expunged (post-conviction dismissal).
Benefits – What are the advantages to reducing a felony to a misdemeanor?
After your felony is reduced to a misdemeanor it is a misdemeanor for all purposes except gun rights. This means you gain several of your rights back:
- You can say you have never been convicted of a felony on applications for a job, school, housing, military or loans;
- The ban on several state licensing boards will be lifted;
- Your right to serve on a jury will be restored;
- It can prevent or remedy immigration consequences; and
- In certain circumstances, financial aid and HUD housing.
While several rights are restored, certain penalties remain even after reduction to a misdemeanor:
- Some licensing agencies still consider your conviction a felony;
- The federal government will still consider your conviction a felony for firearms statutes;
- If you were originally required to register as a sex offender, you must continue to register; AND
- If you were convicted for a "serious" or "violent" felony that was a strike, it will remain a strike on your record.
More detailed information on the benefits or collateral consequences of your offense can be found at http://www.abacollateralconsequences.org or http://nacdl.org/restoration/.
Expungement – The relationship between reducing your felony to a misdemeanor and getting your record expunged.
The ultimate goal to reducing your felony to a misdemeanor would to also have that misdemeanor expunged. Although the term "expungement" is commonly used, the more appropriate term is "post-conviction dismissal" under Penal Code section 1203.4. This process allows an individual to have certain criminal convictions dismissed after completing their sentence. While in certain situations it is possible to have your felony expunged, it is better to have your record first reduced to a misdemeanor. It is the only way to get certain rights back and it looks better to have your record say "insert misdemeanor language."
If you have questions about post-conviction relief options for you or someone you know, contact Hamasaki Law today.