23 Oct 26
A motion to lower a felony charge or conviction to a misdemeanor under California Penal Code Section 17b can be filed with the court for wobbler felonies. Wobbler felonies mean the prosecutor can initially charge them as felonies or misdemeanors, depending on the details of a case or the defendant’s criminal history. If you face a felony charge or conviction, you can file this motion during your sentencing hearing, after the initial hearing, or after completing a felony probation. So much is involved in this filing that you should know about it beforehand. That is why you should talk to a skilled criminal attorney after a felony arrest to determine your eligibility and the process. Let us look at the Penal Code 17b motion in detail.
Reasons to File a PC 17b Motion
If you face criminal charges in California, it is always in your best interest to find ways to avoid the harshest possible penalty. Criminal convictions stay on your criminal record and can continually affect various aspects of your life. You can fight your charges to avoid a conviction, or convince the court to reduce your charges to more lenient penalties. A felony conviction is the most serious, with more severe consequences and a greater impact on your criminal record. The possibility of reducing it to a misdemeanor, which has less severe penalties and consequences, is an excellent idea you should not ignore.
However, this is not possible for all felonies. Remember that all felonies under California Penal Law are not the same. Some crimes are treated as straight felonies, meaning that they can only be filed as felonies. Other felonies are charged as wobblers, meaning that they can also be charged as misdemeanors. If the felony charge you face can also be charged as a misdemeanor, you can have it reduced to a misdemeanor by filing a motion under California Penal Law Section 17b. However, you need to provide valid reasons to convince the court to reduce your charges.
If this works and the court reduces your felony conviction, you will enjoy several benefits, including the following:
You Can Honestly Say No If Asked Whether You Have a Felony Conviction
Having a felony conviction on your criminal record impacts all aspects of your life, including your professional life. This is because most potential employers run background checks on potential employees before hiring. Since felony convictions remain on your record for life, an employer will find out about the conviction and may change their mind about hiring. That is why it is challenging for most ex-convicts to find suitable jobs, even when they meet the education and experience qualifications.
If a court agrees to reduce your felony conviction, it will only stay on your record for ten years. After that, you can honestly say that you have never been convicted of a felony. Also, nothing will show on your criminal background when someone checks. However, this will only work in your favor if the felony conviction you are trying to reduce is the only one on your criminal record.
This will also help with housing services, insurance services, and loan applications. This is because lenders, insurance companies, and landlords also make decisions based on what they find after running a potential client’s background information.
You can Obtain, Maintain, or Reinstate a Professional License
If you are a licensed professional, you will likely lose your license after a felony conviction. Most professional licensing agents take criminal convictions seriously and will not hesitate to take action if you are arrested, charged with, or convicted of a crime. Having a felony conviction on your record could also disqualify you from obtaining a professional license. Having the conviction reduced to a misdemeanor helps with this. You can maintain your license, reinstate a suspended license, or obtain one to begin rendering your professional services legally. Again, you can answer ‘no’ to applications that ask whether you have a felony conviction on your record.
You Can Serve on a Jury
Serving on a jury offers several benefits. In addition to giving you a temporary opportunity to earn an extra income, being sworn in as a juror gives you temporary authority. It means that you and your colleagues have the exclusive power to review and determine facts of a criminal case. You may also decide liability in civil disputes. However, one of the many qualifications of becoming a juror in California is that you must not be incarcerated or have a felony conviction on your record.
If you have always wanted to serve as a juror, having your felony conviction reduced is an excellent start. After that, you can have the conviction expunged from your criminal record.
You Can Restore Lost Gun Rights
California firearm restrictions mainly affect five categories of people, which include convicted felons. If you have a felony conviction on your record for any crime, and in any jurisdiction, you permanently lose your firearm rights. It means that you cannot legally purchase, own, or use a firearm. However, you can restore your gun rights by filing a petition to reduce your felony conviction. If the court grants your motion and the felony is rendered a misdemeanor, it will no longer affect your firearm rights.
Felonies You Can Reduce to Misdemeanors
Remember that even though you can file a motion to reduce a felony under California Penal Code Section 17b, this provision does not apply to all felonies. This statute establishes 2 requirements for anyone to reduce a felony conviction:
- The underlying crime should be a wobbler, meaning that it must be chargeable as a misdemeanor or felony
- The court must have granted you felony probation and not sentenced you to time in prison during sentencing
A criminal court will only grant your motion to reduce your conviction if the circumstances of your case satisfy the two requirements. Thus, if you served a prison sentence for a wobbler offense, you do not qualify for this provision. Also, if you were granted felony probation for a non-wobbler felony, you do not qualify for your conviction to be reduced. A skilled attorney will review the specifics of your case to advise you before helping you file the motion.
A Wobbler
The main requirement, in this case, is that the underlying offense must be a wobbler. As previously mentioned, a wobbler is any crime that the prosecutor can charge as a felony or misdemeanor. There are specific wobblers under the California Penal Law, which include the following:
- Burglary, provided under California Penal Law Section 459
- Assault using a dangerous or deadly weapon, provided under California Penal Law Section 245(a)(1)
- Issuance of criminal threats, as under California Penal Law Section 422
- Spousal battery, as under California Penal Law Section 273.5
- Most sex crimes, especially those under California Penal Law Sections 288 (Lewd or lascivious acts against a minor) and 243.4 (sexual battery)
- Most fraud-related crimes, including health care fraud, automobile insurance fraud, welfare fraud, and unemployment insurance fraud
Remember that you can only reduce felonies that are categorized under wobblers to misdemeanors. Felonies that are strictly felonies or straight felonies do not qualify for reduction to misdemeanors.
Felony Probation
The other requirement for you to qualify to reduce your felony is that your sentence must be felony probation, as opposed to prison. This must have happened during sentencing, when the judge determines the most appropriate penalty for your actions.
If you were sentenced to prison or jail time after conviction, you cannot petition the court to reduce your felony conviction. Also, if you were granted felony probation but violated it, and the court canceled probation and sent you to jail or prison, you do not qualify for this reduction. You are only eligible if the judge granted you probation after a conviction and you are still serving your sentence, or you completed it successfully.
Felonies Punishable By Jail Sentences
Generally, felonies are considered more severe than misdemeanors and are punishable by prison sentences. While most misdemeanors only carry jail sentences of one year or less, some felonies are punishable by jail sentences as well, under the realignment program, AB 109. This is an Assembly Bill that diverts defendants previously convicted of state prison-eligible felonies to jail sentences. However, this realignment does not interfere with sentencing for serious felonies, major sex crimes, or violent felonies.
However, the realignment does not make a less serious straight felony a wobbler. Thus, felonies that carry jail sentences under the realignment program do not automatically qualify for a reduction to misdemeanors, unless the felony was a wobbler to start with. Being granted jail time and not prison time after a felony conviction does not make you eligible for a felony charge reduction. The court will consider your jail sentence as a court’s sentence for felony reduction.
When to File a California Penal Code Section 17b Motion
If, after reviewing your case with your competent attorney, you realize that you can reduce your felony conviction, you should prepare well for it. The timing is critical in this case because courts only allow such motions when the appeal is brought at three strategic points in the legal process:
- At the end of your preliminary hearing
- At the end of your sentencing hearing
- After completing your felony probation
In California, a preliminary hearing, or pretrial hearing, is a court proceeding held primarily in felony cases, during which the court determines whether there is sufficient evidence to hold a trial. It is not a trial in itself; the judge does not rule whether the defendant is innocent or guilty. However, the prosecutor must demonstrate probable cause with sufficient evidence to justify the defendant’s standing trial. It means that the prosecutor must present evidence and a witness to meet the burden of proof. The defense can also counter the allegations with evidence and cross-examine witnesses to influence the outcome of the hearing.
The judge makes the final ruling after reviewing all the evidence and arguments presented by both teams. If they determine that the defendant must be held to answer the charges, the case proceeds to trial. However, if the prosecution fails to meet the burden of proof, the judge can dismiss the case or reduce the felony to a misdemeanor. Your skilled criminal defense attorney can work hard on your defense and, afterward, convince the court to lower the felony charge.
If the case goes to a trial, your legal team can wait until after the sentencing to file a petition to reduce the conviction. Then, you will not have to serve the harsh penalties that come with a felony conviction. Once your conviction is reduced to a misdemeanor, the penalties you will likely receive will be more lenient.
If that does not work, your legal team can wait until you finish probation to file this motion. Remember that how you perform during felony probation will determine whether the court will grant or deny the motion. If you abide by all the conditions of your felony probation, you can file a petition to reduce the conviction once the probation period is over. However, if you violate any condition of your probation, and the judge cancels it and sends you to prison according to the law, you will lose your chance of petitioning the court to reduce your conviction.
You can request the court to reduce your conviction while you are still on probation. However, you must first file for early probation termination. According to California Penal Code Section 1203.3, a judge can terminate your probation at any time during the probation period. However, the judge may want you to serve at least 18 months of your felony probation before termination. If you have not violated your probation within that time, you can apply to the court with the help of your attorney. The judge will review your petition and your performance to grant or deny the petition.
If the judge grants you an early probation termination, you can file another petition to have the felony conviction reduced.
Factors that Courts Consider To Grant or Deny Your Petition
There is usually no guarantee that the court will grant your request to reduce your felony conviction to a misdemeanor, even when you meet the two most important eligibility criteria. Courts must consider a few factors, like the following:
- The nature of your crime
- The circumstances of your case
- How well, or otherwise, you performed during probation
- Your criminal record
- Your individual history
In most cases, the court will deny your petition if you were convicted of a serious felony or have a serious criminal record. Also, the judge will not grant your petition if you violated any term or condition of your probation. If they deny your petition, you will be notified within a reasonable time, and the reason for the denial will be provided. You can appeal the matter with the help of your attorney.
On the other hand, if the judge grants your petition, the charge reduction will be done within a reasonable time. However, some of the penalties of the conviction will remain, even after the reduction. For example, if the conviction was for a serious felony, it will be a strike on your record under the Three Strikes Law. If the conviction carried a requirement to register in the sex offender registry, this requirement will still apply after the reduction. The reduction will also not affect how the federal law considers your case. If your crime is still a felony under federal law, reducing it under state law will not change that.
You Can Expunge the Conviction after Reduction
This is another benefit of a successful petition to reduce a felony. Remember that although expunging a felony is possible in California, the process can be difficult, and the benefits are fewer than those you receive for expunging a misdemeanor. For example, expunging a misdemeanor preserves some of your rights, like the right to a firearm, which remain denied even after expunging a felony from your record.
Once the charge reduction happens, you can expunge the misdemeanor after completing your sentence. Expungement is critical because it relieves you of all the disabilities and consequences associated with a criminal conviction.
Find an Experienced Criminal Lawyer Near Me
Are you or someone you know facing a felony conviction for a wobbler in Van Nuys?
You can have this conviction reduced to a more lenient penalty and have critical rights, like gun rights, preserved. You may also seamlessly expunge the conviction after completing your sentence. A skilled attorney can help you better understand this provision, its benefits, and what the process entails.
We can help you file a successful motion with the court at Leah Legal to have your felony charge or conviction reduced. Our experienced criminal defense lawyers have the information and skills to make this process smooth and successful. We can also protect your rights and file an appeal if the court denies the motion. Call us at 818-484-1100 for more information and assistance with your case.
