Reducing a felony to a misdemeanor – both as a current charge in court and when expunging your record
Under California Penal Code 17(b), certain crimes can be charged as a felony or a misdemeanor in court. If you are charged with a felony, your criminal defense attorney should try to get it reduced to a misdemeanor if it is a qualifying charge. In order to be a qualifying charge, it must be a wobbler.
What is a wobbler?
A “wobbler” is a specific criminal charge that the law says can either be a felony or a misdemeanor. The District Attorney can decide whether they are going to charge you with a felony or a misdemeanor charge. They will usually look at your criminal record, the facts of the case, the extent of the damages or injuries in the case, whether there are mitigating or extenuating circumstances in the case, how much prosecution the victims want, etc…
There are many listed wobbler criminal charges, but the most common ones are Penal Code 459-460(b) – Commercial Burglary, Penal Code 422 – Criminal Threats, Penal Code 245(a)(1) – Assault With a Deadly Weapon, Penal Code 273.5 – Domestic Violence, and Vehicle Code 23153 – Driving Under the Influence Causing Injury.
What is a Penal Code 17(b) motion?
A 17(b) motion is a request or a motion made to the Court to reduce your felony charge or conviction to a misdemeanor charge or conviction.
When can a 17(b) motion be made? And who makes it?
If you are currently in court facing a felony charge, your attorney can make a 17(b) motion on your behalf to request that your felony charge be reduced to a misdemeanor charge. Your attorney can make this motion at the end of a preliminary hearing, at a court chambers conference, or at the end of a jury trial during sentencing. That is why it is crucial to have a good criminal defense attorney to fight for you and persuade the Judge why you should only be charged with a misdemeanor and not a felony.
If you are asking for an expungement of a felony and your prior conviction is a wobbler, your attorney will first request that the Judge grant a motion to reduce the prior felony conviction to a misdemeanor and then expunge it. This looks better on your record overall. However, in order to reduce a felony to a misdemeanor before an expungement, you must have been granted probation and not sentenced to state prison.
What are the benefits of a 17(b) motion?
For obvious reasons, a misdemeanor is better than a felony. It means less maximum punishment, informal probation usually instead of formal probation or parole, and looks better on your record overall. Also, many employers only ask if you have felony convictions on job applications. They usually don’t care about misdemeanor convictions. And if you only have a misdemeanor on your record, you will not lose certain rights that you will lose if you have a felony on your record, such as the right to serve on a jury, certain gun rights, and applying for certain state licenses. Immigration consequences will also drastically change if you have a felony conviction versus a misdemeanor conviction.
What does the Judge consider when granting or denying a 17(b) motion?
There are many factors a Judge will consider when deciding whether to grant or deny your attorney’s request to reduce your felony charge to a misdemeanor charge. They will look at your prior criminal record, your age, your ties to the community, whether you have a job or are in school, the facts of the case, the extent of damages or injuries to the other parties, and any other mitigation factors that your attorney needs to present and argue on your behalf to the Judge. Typically, the District Attorney will oppose your attorney’s 17(b) motion and it will take a good criminal defense attorney to persuade the Judge to do it anyways.