Felony Records: Reduce Felony to a Misdemeanor (Penal Code Section 17(b) (3) :
Under California law, you have the right to have your felony conviction expunged. If you plead guilty or no contest to a felony your life is not over. The first question we need to ask is can the felony can be reduced to a Misdemeanor?
There are two requirements for a felony conviction in California to be reduced to a misdemeanor. The process is set out in California Penal Code 17(b) 3. See criminal records 101.outiles penal code 17(b) 3.
First, the charge you plead guilty must be classified as a “wobbler.” Under California law, a wobbler is a crime that can be charged as either a felony or a misdemeanor. The list of wobblers can be found under criminal records 101.
Second, you must be given a probationary sentence. Even if you had to do a year in county jail we can still reduce your case to a misdemeanor. If probation was denied, and you were sentenced to State Prison, then you are not eligible for a reduction to a misdemeanor, or an expungement pursuant to penal code section 1203.4. At this point, in order to get relief your must file for a certificate of rehabilitation and then pardon from the governor.
Our office will first see if your case falls under the “wobbler” statue were it can be reduced to a misdemeanor.
The process for example takes several steps. We research your case and follow up with any additional information we need to file your (paperwork) motion.
In order to have your record, felony reduced to a misdemeanor etc., it is necessary to bring a formal motion or petition with the Superior Court in the county in which your conviction was entered. A formal motion is paperwork where we ask the court to reduce your case to a misdemeanor and we cite California case law. Our motion must be accompanied by a declaration from you stating that you have completed all the terms and conditions of your probation. Additionally, a proposed order for the court must also be prepared in the proper format. If you violated probation, we can still win your motion. The judge has the discretion to grant or deny the motion. We have reduced many cases from felonies to misdemeanors when the client violated a term or condition of probation.
After the necessary documents are prepared, the motion must then be filed with the court clerk. The clerk then sets a date for the hearing of the motion. A copy of the motion will also be served on the district attorney for the county, and often on the probation office that you were convicted.
The district attorney and probation office will file an opposition to our motion. After we read the motion, if necessary we will file a reply to their motion. Then the hearing will be calendared. We will appear at the hearing. You may or may not be required to be at the hearing. You have the right to go if you want.
At the hearing, the judge will consider the facts and circumstances. The judge looks at all the factors in the case, good and bad: (1) the nature of the offense, (2) the facts and circumstance surrounding the commission of the crime, (3) Whether the victims was hurt, whether and restitution or money is owed to the victim. How you complied with the terms and conditions of your probation, (4) your work and educational background (5) your prior criminal record, if any. And make a decision whether or not you qualify for reduction to a misdemeanor. If you completed all of your terms and conditions of probation there is a very high likely hood that the judge will grant your motion.
When the motion is granted we draft an order requiring the court to forward the updated information to the department of justice. The department of Justice will then update your record or “rap sheet”.
From the day your motion is granted you can forever say you were never convicted of a felony.
There are many Benefits by reducing your felony to a misdemeanor. They are as follows:
- It can restore your right to carry a firearm
- You can lawfully say you have never been convicted of a felony (penal code section 17 (b) 3 states it reduced to a misdemeanor “for all purposes”
- You can now obtain many professional licenses, certain licensing agencies like the NASD (your license to become a stockbroker) and Department of Real Estate both require a felony to be reduced to a misdemeanor and expunged your record as a requirement before the will grant you a license to be a stockbroker or real estate agent.
- You chances for employment are dramatically increased. Many employers’ insurance premiums exclude convicted felons.
- You will now qualify for certain loans and government benefits.
Once your record is expunged, when filling out employment applications you can legally answer “No” to direct questions of whether you were convicted of a crime.
There are 3 exceptions: 1) in an application for peace officer or public office, 2) in an application for a state license, or 3) contracting with the California Lottery Commission. In all other cases, you can deny the conviction. See penal code sections 1203.4 in criminal records 101.
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Orange County Law Offices of Stull & Stull
Criminal Defense Attorney
15615 Alton Parkway suite 450
Irvine, Ca. 92618