REDUCTION OF FELONY TO MISDEMEANOR

If you are convicted of a felony with probation on a “wobbler” offense, the court upon application may declare the offense to be a misdemeanor (Penal Code 17(b)(3)).  A “wobbler” can be charged as a felony or a misdemeanor.  In deciding to reduce a felony to a misdemeanor the court must give “individualized consideration of the offense, the offender, and the public interest” (People v Superior Court (Alvarez) (1997) 14 C4th 968,978).  

BENEFIT OF REDUCTION OF FELONY TO MISDEMEANOR

Once the felony is reduced to a misdemeanor the crime is considered a misdemeanor “for all purposes.”   There are exceptions to this rule.  Some convictions may still be considered a strike under the Three Strikes Law (Penal Code 667(d)(1), 1170.12(b)(1)).  The federal government may still consider the conviction a felony for purposes of its gun laws (US v Tallmadge (9^th Cir 1987) 829 F2d 767, 770).  However, 18 USC 921(a)(20) recognizes some state expungements and set asides as it applies to gun laws.  

FELONY PROBATION REDUCED TO INFORMAL PROBATION

If a felony is reduced to a misdemeanor while the person is still on probation, the court will usually reduce formal probation to informal probation.  This means that many of the requirements of formal probation like supervision, testing, and permission to travel will no longer be required.

FELONIES NOT ELIGIBLE FOR REDUCTION TO MISDEMEANOR

A felony to misdemeanor reduction is not available when the sentence imposed is prison or a suspended prison sentence (Penal Code 17(b)(3)).  Crimes that can only be charged as felonies and not misdemeanors are not eligible for a reduction.          

FELONY REDUCTION TO MISDEMEANOR LAW

California Penal Code 17

(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

(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.

(c) When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from the Youth Authority, thereafter be deemed a misdemeanor for all purposes.

(d) A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:

  (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or;

  (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.

(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.

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