What Is a Motion to Reclassify a Felony as a Misdemeanor?

In many cases, when you are charged with a felony, and time has passed, you may wish to reduce the charges to a misdemeanor. Legislation over the last few years has greatly improved to help reduced many felony charges to misdemeanors. It would be worth your time to call and ask if your case is applicable!

Some of the biggest legislation changes have been to theft, marijuana and other drug charges (Prop. 47, 57 and 64 each reduced several charges).

Sometimes, the charge is a straight felony, meaning it cannot be charged as both a felony and a misdemeanor.  It can only be a felony, which means the case can only be resolved as a misdemeanor if the prosecutor agrees or offers to resolve the case for a misdemeanor charge instead, often through amending the complaint to add a misdemeanor charge and dismiss the felony charge.  This can happen when the client is facing a felony DUI.  The prosecutor can add a misdemeanor charge to the complaint and the client can then resolve the case with a plea to that new charge.

When the charge is a “wobbler,” meaning the same charge can be alleged as a felony violation or a misdemeanor violation, our answer to the client’s question is yes, we can file a Motion to Reclassify the Felony Charge as a Misdemeanor.  The judge then rules on our request for the client.  Such a motion is made under Penal Code §17(b).  Depending upon the stage of the case, there are different subdivisions under §17(b) that apply.

What types of charges are subject to such a motion? 

The most common one we see is Penal Code §273.5 – domestic violence.  We have also seen it apply to Penal Code §12020 – possession of a deadly weapon.

Under Penal Code §17(b)(5), such a motion can be made early in the case, before a plea or sentencing.  One court explained its purpose being to “unburden” a judge from cases that were likely to result in no more than misdemeanor penalties, to expedite handling of such cases, encourage guilty pleas by defendants who could know in advance that no penalty could be imposed more severe than a jail sentence or a fine, and save time by eliminating preliminary hearings.

Another judge has described it as a “check and balance” on the “lock step” way some charges are simply always charged as felonies, even though they can be filed as a misdemeanor, too.  It allows the court to take a “sober second look” at the facts to ensure that the charge fits the circumstances.  (People v. Manning (1982) 133 Cal.App.3d 159, 183 Cal.Rptr. 727; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976, 60 Cal.Rptr.2d 93.) It permits reclassification of a charge to prevent felony charges becoming the only type of charges certain defendants face.

It is important to note that reduction of a felony charge to a misdemeanor is not available for someone if they were sentenced to a prison term, even if suspended.

Most commonly, one can request reduction of a felony to a misdemeanor once probation has been completed, assuming the charge is also punishable as a misdemeanor, by simply checking a block on California Judicial Council Form CR-180, the form applicable to request expungement (relief under Penal Code § 1203.4).

A judge can certainly deny this request, as our office has seen.  The judge may comment that the conduct, i.e. statutory rape under Penal Code §261.5, vandalism under Penal Code §594(a), arson under Penal Code §451(d), involuntary manslaughter under Penal Code §192(b) (both “wobblers” under certain facts), was clearly felony in nature.

17(b) relief can also be requested even after someone has had a felony conviction expunged under Penal Code §1203.4. Meyer v. Superior Court of Sacramento County (1966, Cal App 5th Dist), 247 Cal App 2d 133, 55 Cal Rptr 350 (1966 Cal App LEXIS 946).

Lastly, Penal Code §17(d) can be used to reduce a misdemeanor to an infraction if the offense is punishable as both an infraction and a misdemeanor.  There are not too many charges that this description applies to, however, Penal Code §415 is one such offense.

Write a Reply or Comment