In California, you can bring a 17(b) motion to ask the court to get a felony dropped to a misdemeanor after completing felony probation. This only works for wobblers, however. The benefits of reducing a felony offense to a misdemeanor are significant. The collateral consequences of a felony conviction are much more severe than for a misdemeanor.
Penal Code 17(b) Motions
A 17(b) motion is a court petition. It asks the judge to reduce an eligible felony conviction to a misdemeanor. If approved, your criminal background will show a prior misdemeanor offense. It will no longer list the prior offense as a felony.
17(b) motions can be heard at any of the following stages in the criminal trial process:
- at the preliminary hearing,
- the sentencing hearing, or
- at the completion of the felony probation period.
To expedite the process, the 17(b) motion can be filed during felony probation. This can lead to an earlier hearing for the motion. This means it can be resolved earlier. The motion can also be coupled with a request to terminate probation early. This can speed up the probation process even more.
Once filed, the judge will weigh several factors in deciding whether to grant the motion. They can include:
- the nature of the criminal offense,
- the specific facts of the case,
- whether you violated any of the terms and conditions of your felony probation,
- your criminal history, and
- your personal history.1
The prosecutor may or may not argue against reducing the felony conviction to a misdemeanor.
Eligible Offenses for Reduction
Under California criminal law, only the following types of felony convictions are eligible to be dropped to a misdemeanor:
- the offense must have been a wobbler, and
- you must have been sentenced to a term of probation, rather than to prison.2
Wobblers are criminal offenses in California that could have been prosecuted as a felony or as a misdemeanor. District attorneys have the discretion to choose how to pursue the charge. They often decide based on the facts of the case. Some common criminal offenses that are wobblers include:
- assault with a deadly weapon (Penal Code 245(a)(1) PC),
- spousal battery (Penal Code 273.5 PC),
- criminal threats (Penal Code 422 PC), and
- burglary (Penal Code 459 PC).
These offenses are eligible for a 17(b) motion to reduce the felony conviction to a misdemeanor. Straight felonies – those that cannot be prosecuted as a misdemeanor – are not eligible for a reduction.3
If the charge was a wobbler, the sentencing judge must have imposed a term of probation. They cannot have sentenced you to a term in county jail or state prison. If the judge denied probation and imposed a term in confinement, the offense cannot be dropped to a misdemeanor. The same is true if the judge sentenced you to probation, but then you violated probation and were sent to jail. In either of these cases, the felony conviction is not eligible for reduction to a misdemeanor.
Completing Felony Probation
Felony probation is a term of community supervision. To complete it, you have to follow its rules and complete its requirements for the term of probation.
The terms of probation vary. Judges tailor them according to your background, the particular offense, and the facts of the case. Some common terms of felony probation include:
- paying victim restitution,
- performing community service,
- regularly meeting with a probation officer,
- random drug testing, for drug offenses,
- not drinking alcohol, for crimes of driving under the influence (DUI),
- complying with restraining orders, for crimes of domestic violence,
- paying court costs,
- attending victim impact panels,
- completing treatment programs, often for sex crimes,
- counseling, and
- agreeing not to commit any other laws while on probation.
The length of felony probation is generally up to:
- 2 years, for non-violent felonies, and
- 3 years, for grand theft involving more than $25,000.
The term of probation for violent felonies can be longer. Some criminal statutes specifically state how long probation will last.4
If you abide by the rules of your probation for the full term, you will complete it. You may even petition the court to terminate probation early.
Felony vs Misdemeanors
Felony convictions are more serious than misdemeanors. A criminal record with a felony on it will trigger more collateral consequences. These collateral consequences are penalties and obstacles that come from outside the criminal justice system.
Some common collateral consequences that come with a felony conviction, but not with a misdemeanor conviction, include:
- losing your right to own, possess, or use firearms,
- having to admit to a prior felony conviction on job applications or apartment applications,
- difficulties in getting government aid, like student loans or grants,
- losing professional licenses, and
- becoming ineligible for some professional certifications.
These collateral consequences of a conviction can make life difficult and last for years after the sentence has been served. A skilled criminal defense attorney can file a 17(b) motion and begin the process of getting an eligible felony dropped to a misdemeanor after serving probation to avoid these difficulties.
However, there are some collateral repercussions of a felony conviction that will remain. These include:
- sex offender registration requirements,
- a “strike” under California’s Three Strikes Law, if the felony was a serious or a violent one,5
- certification issues for certain state licensing boards, like the California State Bar, that do not recognize the reduction, and
- collateral consequences from the federal government, which might still consider the conviction to be a felony offense.
To overcome these obstacles, it can be necessary to expunge the criminal conviction, entirely.
Expungement
Expungement is the process of sealing a criminal record from the public view. If members of the public cannot see it, they cannot discriminate against you for having a prior criminal conviction.
Expunging a misdemeanor, though, has more benefits than expunging a felony. An expunged misdemeanor preserves and restores some rights that are lost when the record being sealed was a felony. One of these is your gun rights.
A criminal defense lawyer from a local law firm can help you drop a felony conviction to a misdemeanor. A lawyer can then provide the legal advice needed to expunge the criminal charge from your record.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Felony probation: A re-examination of public risk – American Journal of Criminal Justice.
- Probation and Felony Offenders – Federal Probation.
- The effectiveness of felony probation: Results from an eastern state – Justice Quarterly.
- Predicting Success or Failure on Probation: Factors Associated with Felony Probation Outcomes – Crime & Delinquency.
- Felony Probation and Recidivism: Replication and Response – Federal Probation.
