Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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  6.  » Reducing a felony to a misdemeanor

Reducing a Felony to a Misdemeanor

California Penal Code section 17, subdivision (b) provides a mechanism by which a court, in certain circumstances, may reduce a felony to a misdemeanor. More specifically, the code says that there are six circumstances where a crime that may be punishable as either a felony or a misdemeanor (sometimes called a “wobbler”) can be reduced to a misdemeanor. Each of these circumstances is discussed below.

When can a court reduce a felony to a misdemeanor?

First, a court may declare a crime to be a misdemeanor “[a]fter a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.” (Pen. Code, § 17, subd. (b)(1).) In other words, if you the judge didn’t sentence you to state prison or to a state prison sentence to be served in county jail then a court may reduce your crime to a misdemeanor.

Importantly, the court can reduce a felony to a misdemeanor even after the court has sentenced a defendant to prison but suspended the execution of sentence (i.e., “joint-suspension” (when the court gives you a chance at probation but if you violate probation then you have to serve a guaranteed amount of time to in prison unless the judge mercifully grants you another chance at probation.)).

Second, a court may declare a crime to be a misdemeanor “[w]hen the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.” (Pen. Code, § 17, subd. (b)(2).) This circumstance clearly only applies to juveniles who have been “committed” or sentenced to the Division of Juvenile Justice.

Third, a court may declare a crime to be a misdemeanor “[w]hen the court grants probation to a defendant 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.” (Pen. Code, § 17, subd. (b)(3).)

Basically, the judge has discretion to reduce the felony to a misdemeanor at the time of the initial sentencing.  Or, the judge can reduce the felony to a misdemeanor during the period of probation or after probation expires.  Usually, your best chances to get a felony reduced to a misdemeanor is after probation expires.  *“The word ‘thereafter’ in Penal Code Section 17 is not followed by a time limit, nor is it by express terms restricted to the probationary period.” (Meyer v. Superior Court In and For Sacramento County (1966) 247 Cal.App.2d 133, 140.) Rather, “there is even greater reason for rewarding a convicted defendant who continues to demonstrate his rehabilitation long after his probation has expired, when he is no longer under the constant supervision of a probation officer.”* (Ibid.)

Fourth, a court may declare a crime to be a misdemeanor “[w]hen 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.” (Pen. Code, § 17, subd. (b)(4).) In other words, unless there is an objection by the defendant, when a prosecutor specifies in a complaint that the crime is a misdemeanor, it is a misdemeanor.  *Really, the only reason that I can think of for somebody to object to a reduction of a felony to a misdemeanor is if the gameplan is to go to trial because a felony case allows cross examination of witnesses at a preliminary hearing prior to trial whereas a misdemeanor case does not.*

Fifth, a court may declare a crime to be a misdemeanor “[w]hen, 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.” (Pen. Code, § 17, subd. (b)(5).)  *Remember the preliminary hearing talked about in the section above?  It is basically this hearing where a judge can reduce a felony to a misdemeanor.*

What will a court consider when deciding whether to reduce a felony to a misdemeanor?

The decision whether to reduce a conviction from a felony to a misdemeanor is very fact-based and discretionary. “Penal Code section 17, subdivision (b), rests the decision whether to reduce a ‘wobbler’ from a felony to a misdemeanor solely ‘“in the discretion of the court.”’ [Citation.]” (People v. Bonilla (2018) 29 Cal.App.5th 649, 660–661.) The relevant factors that a court should consider when deciding whether to exercise this discretion include “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)

Stated another way, this decision is discretionary, and a court will consider several different factors in deciding whether a conviction should be reduced from a felony to a misdemeanor.

What about juveniles?

 As is often the case, juveniles are subject to their own special rule. More specifically, Penal Code section 17, subdivision (c) states as follows:

  • When a defendant is committed to the Division of Juvenile Justice for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the Division of Juvenile Justice, thereafter be deemed a misdemeanor for all purposes.

(Pen. Code, § 17, subd. (c).) This subdivision gives juveniles a lot of leniency, as it essentially says that if a juvenile sentenced to a “wobbler” offense, their conviction automatically becomes a misdemeanor once they are released from incarceration.