The difference between a misdemeanor and a felony is not always clear from state to state. In general, it is fair to say that a misdemeanor is defined by the maximum length of time a person is incarcerated, usually no more than one year. Crimes with a minimum jail time of over a year are usually felonies. One can usually state that any crime that is not a felony is by nature a misdemeanor.
In many jurisdictions, there are generally two requirements for a felony conviction to be reduced to a misdemeanor. In California, the process is memorialized in the Penal Code, Section 17 (b).
First, the offense you were convicted of must be defined as a “wobbler”—meaning the crime could be filed as either a felony or a misdemeanor. The list of crimes defined as wobblers is fairly extensive, but includes crimes such as domestic violence, burglary, assault with a deadly weapon, criminal threats, and most fraud charges.
Second, the person convicted of the felony crime must have been granted probation and not sentenced to state prison. In California, if probation was denied, and the person was sentenced to state prison, you are not eligible for a reduction to a misdemeanor. Additionally, in California, most sex offenses, like rape cannot be reduced and/or expunged.
Many have inquired if it matters if he/she pled guilty or no contest. It makes no difference so long as you meet the two requirements above, a reduction and an expungement are available. If you are presently on felony probation, a lawyer may file the necessary documentation and appear on your behalf in a hearing to request an early termination of probation. If you are no longer on probation, a lawyer must request that your case be placed on the court’s calendar and set a hearing for a misdemeanor reduction hearing.
How does the court decide whether your felony conviction should be reduced? The judge will review the following: (1) the nature of the crime; (2) the facts of how the crime was committed; (3) how well (or poorly) the defendant did on probation;; (4) the person’s life history; (5) his/her criminal record. With my clients, I always provide insight to the judge as to my client’s future hopes and ambitions. It indicates that my client is deserving of forgiveness. The judge may also note the prosecutor’s position so it is always to my client’s benefit that I have prior meetings with the prosecutor. During these discussions, I make it clear that my client made a mistake, admitted the mistake and is in the process of changing his/her life for the better.
How is a misdemeanor reduction related to an expungement? It is typically easier to seek from the court and an agreement from the prosecution a felony reduction before obtaining an expungement of the conviction. After successfully getting a reduction, then the second step of expunging the conviction from your record is the next obstacle.
I had a client three years ago who I assisted in getting his felony conviction reduced to a misdemeanor then had the misdemeanor expunged. He had other factors in his case that he wanted to “dispose” of such as, the lifetime Penal Code (PC) Section 290 Registration. I recommended that we proceed further and request to have a Certificate of Rehabilitation.
It is an extensive procedure and it was not going be cheap. He did not proceed and now is back in my office since he was arrested for failing to register immediately at his new residence last year. This case has many nuances, one of which is my client is over 70 plus years old and has been very diligent in his annual registration.
If he had filed for a Certificate of Rehabilitation and was granted the relief of the termination of the 290 Registration, he would not need my legal help. His prior conviction was expunged but now it is my job to negotiate with the prosecutors a reasonable and fair resolution, in light of the mitigating facts in this case.
Any questions, call my office at 310-601-7144 or visit my website, attycastaneda.com.
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