PC 17(b) Motion: Reduce a Felony to a Misdemeanor: CA Criminal Defense Lawyers Explain

This article discusses California Penal Code Section 17. If you are charged with a California crime, and you have any questions regarding PC 17, contact our criminal defense lawyers today for a free consultation.

What is a PC 17(b) Motion?


A California 17(b) motion is a criminal defendant’s request to have her felony criminal charges reduced to misdemeanor criminal charges. A defendant may request a PC 17(b) motion to reduce a felony to a misdemeanor before or after sentencing. If successful on the PC 17(b) motion, the defendant's felony is reclassified as a misdemeanor for almost all purposes (see below).


Benefits of a PC 17(b) Motion


When available, a felony that is reduced to a misdemeanor can benefit a defendant in the following ways:


1. Incarceration Reduced: Before conviction, a successful PC 17(b) will usually reduce the defendant’s jail or prison exposure.


For example, a defendant charged with criminal threats, which is filed as a felony, exposes the defendant to a possible three-year prison sentence and a California “strike” conviction, but a felony criminal threats charge, which is reduced to a misdemeanor by way of a PC 17(b) motion, will expose the defendant to a maximum of one year in the county jail and no California “strike” conviction.


Note: This incarceration reduction is a huge benefit for any person convicted of a felony DUI that is later reduced to a misdemeanor DUI through a PC 17(b) motion. The reason is that a second DUI conviction, even for a non-injury DUI, is charged as a felony DUI when the defendant has a prior felony DUI conviction. But if the defendant’s prior felony DUI conviction is reduced to a misdemeanor, even after the felony DUI conviction, then his subsequent DUI cannot be charged as a felony, unless there is injury associated with the defendant’s subsequent DUI crime.


2. Professional Licensing: A felony crime that is reduced to a misdemeanor through a PC 17(b) motion may be expunged pursuant to PC 1203.4. If the defendant has only one misdemeanor conviction, which is expunged by way of a PC 1203.4 motion, then California cannot deny that defendant a professional license (i.e., license to practice law, medicine, accounting, nursing, teacher, etc.). There are some exceptions to this rule for law enforcement employment, licensure for insurance work, and more.


3. Employment & Housing Opportunities: A successful Penal Code 17(b) motion will usually help the defendant find better employment, housing, and assistance with loan applications.


Note: There are some restrictions on where a person may live when she has a felony on her criminal record. This usually involves public housing, but it can also include private housing with apartment and condo rentals.


4. Jury Service: A felony conviction, which is reduced to a misdemeanor conviction via a PC 17(b) motion, will restore the defendant’s right to serve on a jury.


5. Associations Restored: A defendant who has her felony conviction reduced to a misdemeanor will no longer be forbidden from associating with other persons convicted of a felony, and more.


Note: Contrary to popular belief, a person who has a felony conviction on their criminal record is not forbidden from voting in California. A person is forbidden from voting in California if that person is in prison, on parole, or not a U.S. citizen (with some exceptions beyond the scope of this article).


Do I Qualify for PC 17(b) Motion?


A 17(b) motion is only available in several situations:


1. The defendant is charged or convicted of a “wobbler” offense (see below)

2. The defendant, if not already convicted of the wobbler offense, brings her 17(b) motion either at the preliminary hearing stage of a felony, or thereafter, including anytime up to, and including sentencing on the felony wobbler offense.

3. The defendant, if already convicted of a felony wobbler offense, was granted probation, as opposed to being sentenced to prison, and the defendant has fulfilled all conditions of her felony probation.


Note: A public offense that is charged as a "straight" felony, may not be reduced to a misdemeanor through a PC 17(b) motion. Some California “straight” felonies include murder (PC187(a)), torture (PC206-f), lewd and lascivious acts on a minor under fourteen (PC288(a)-F), Mayhem (PC203-F), Robbery (PC211-F), Carjacking (PC215(a)-F), Human Trafficking (PC236.1(a)-F), Rape by Force (PC261(a)(2)-F), Incest (PC285-F), Residential Arson (PC 451(b)-F), First Degree Burglary (PC460(a)-F), Treason (PC37-F), and more.


When do I Bring My PC 17(b) Motion?


The timing of a defendant’s PC 17(b) motion is important. The best time to bring the motion is arguably at the preliminary hearing in a felony case. However, the defendant may not have that opportunity for some reasons (i.e., mitigation factors are related to a defense not announced, etc.). In any event, the law only allows PC 17(b) motions at certain times in a criminal case, including the following:


PC 17(b) & Preliminary Hearing: Most motions to reduce a felony to a misdemeanor will be brought contemporaneously with the preliminary hearing stage in a felony case. As stated, the felony must be a “wobbler” offense to quality for a PC 17(b) motion (See List of Wobbler Offenses below)


PC 17(b) & Sentencing: A motion to reduce a felony to a misdemeanor may be brought at the sentencing hearing on a felony wobbler offense. This happens in two situations: 1) when the district attorney and the defendant agree that the defendant’s criminal charge will be reduced as part of a plea bargain, and 2) when the judge, after a court or jury trial, considers evidence of mitigation that was learned from the defendant’s trial along with any relevant and admissible mitigation evidence not already introduced at trial (i.e., work history, lack of criminal history, effort made towards rehabilitation, etc.).


PC 17(b) After Probation: The defendant may bring a motion to reduce a felony to a misdemeanor after probation is concluded successfully. Again, the PC 17(b) motion after probation can only be made in connection with a wobbler offense. If the defendant was sent to state prison, as opposed to being granted a probation sentence, then the defendant does not qualify for a PC 17(b) motion. Similarly, if the defendant was initially granted probation, but she violated her probation and thereafter was sent to prison (probation terminated), then the defendant does not qualify for a PC 17(b) motion.


Note: A “county prison sentence” that was ordered after a conviction for a wobbler offense is the same as a prison sentence for purposes of PC 17(b). In other words, if the defendant was sentenced pursuant to Penal Code 1170(h) to a “county prison sentence,” then the defendant is not entitled to a PC 17(b) motion.


Judge Considerations in PC 17(b) Motions?


PC 17(b) Court’s Considerations: The court will consider many factors in determining whether to grant a motion to reduce a felony to a misdemeanor. These factors include, but are not limited to, the following:


1. The defendant’s criminal history,

2. The defendant’s compliance with probation conditions,

3. The time between end of probation and PC 17(b) application

4. The reason for defendant’s request (i.e., employment, licensing, housing, etc.)

5. The facts and circumstances of the defendant’s criminal case, etc.


What is a “Wobbler” Offense?


Wobbler Offense: A “wobbler” offense is a crime that may be charged either as a felony, or alternatively as a misdemeanor. A felony crime is a classification of crime that is considered more serious than a misdemeanor crime for almost all purposes. A wobbler offense that is charged are a felony may be reduced upon application by the defendant or the district attorney (PC 17(b)). Also, a wobbler offense that is charged as a misdemeanor may be increased upon application by the defendant or the district attorney.


Note: It is very unusual for a defendant to request a wobbler offense charged as a misdemeanor to be reclassified as a felony; however, the law does permit such an application from the defendant. The reason a defendant might consider this unusual request is that the defendant would be entitled to a probable cause hearing (preliminary hearing) in a felony case, but she would not be entitled to the same in a misdemeanor case. In other words, if the defendant is not in custody on a misdemeanor case, and thereby she does not qualify for PC 991 motion to dismiss, then the only recourse the defendant has when the prosecutor is not willing to dismiss her case is to have the judge consider the facts a trial, which is a very scary proposition for most defendants.


List of CA Wobbler Offenses: There are too many wobbler crimes to list here, but a list of the most common wobbler offenses include:


1. Unauthorized Use of Vehicle (VC 10851(a))

2. Inflict Corporal Injury on Spouse (PC 273.5(a))

3. Possession of Prohibited Weapons

4. Criminal Threats (PC 422(a))

5. Assault with a Deadly Weapon (PC 245)

6. Unlawful Sexual Intercourse (PC 261.5(c))

7. DUI Boating with Injury (HN 655(f))

8. Dissuade Witness from Testifying (PC 136.1(a))

9. Aiding a Criminal Street Gang (PC 186.22(d))

10. Vehicular Manslaughter (PC 191.5(b))

11. Sexual Battery (PC 243.4)

12. Seduction of Minor for Prostitution (PC 266)

13. Child Endangerment (PC 273a(a))

14. Bigamy (PC 281)

15. Distribute Lewd Material to Minor (PC 288.2(a)(1))

16. Possession of Child Pornography (PC 311.11(c)(1))

17. Elder Abuse (PC 368(b)(1))

18. Brandishing a Firearm at Police (PC 417(c))

19. Looting (PC 463)

20. Grand Theft of Lost Property (PC 485)

21. Embezzlement (PC 503)

22. False Personation (PC 529)

23. Cruelty to Animal (PC 597(b))

24. Stalking with Threat (PC 647.9(a))

25. Annoy or Molest a Child in Dwelling (PC 647.6(b))

26. Criminal Storage of Firearm (PC 25100(a))

27. Armed Criminal Action (PC 25800)

28. Discharge Firearm from Vehicle (PC 26100(d))

29. Minor in Possession of a Firearm (PC 29610)

30. Welfare Fraud (WI 10980)

31. Attempt to Evade Peace Officer (VC 2800.2(a))

32. DUI with Injury (VC 23153(a))

33. Unlawfully Obtain Public Aid (WI 10980(c)(2))


Are There Limitations to PC 17(b) Motions?


PC 17(b) Limitations: According to Penal Code 17(b), a motion to reduce a felony, if granted, means that the criminal conviction is treated like a misdemeanor ‘for all purposes.’ But the law has carved out a few exceptions despite this unambiguous language. Now, a felony that is reduced to a misdemeanor through a PC 17(b) motion is treated as a misdemeanor for all purposes…except:


1. PC 290 Registration: When the defendant is ordered to register as a sex offender pursuant to PC 290, then the defendant’s felony reduction to a misdemeanor does not relieve her of that duty. For example, if the defendant is charged with felony annoying or molesting a minor in a dwelling, and the defendant thereafter has her felony reduced to a misdemeanor via a PC 17(b) motion, then the defendant must continue to register as a sex offender despite the reclassification of her charged offense.


2. Domestic Violence Cases: When the defendant has a domestic violence felony crime reduced to a misdemeanor, the defendant is still restricted from owning or possessing firearms. For example, if defendant is convicted of felony inflict corporal injury to spouse or cohabitant (PC273.5(a)-F), and she later has that felony DV crime reduced to a misdemeanor via a PC 17(b) motion, then she is still forbidden from owning or possessing firearms. This is because there is a federal firearm ban on all DV crimes in America, and California may not usurp federal law in this regard.


3. Firearm Ban Reduction: When a defendant has his felony reduced to a misdemeanor by way of a Penal Code 17(b) motion, and the felony was a firearm or assault-type related offense, then the defendant may have his lifetime firearm ban reduced to a ten-year firearm ban. For example, if the defendant is convicted of the felony crime of criminal threats (PC422(a)-F), and he thereafter has his felony conviction reduced to a misdemeanor, then his lifetime firearm ban that was associated with his felony conviction turns into a ten-year firearm ban.


Note: If the assault-type offense is domestic violence related, then the felony reduction to a misdemeanor will not turn a lifetime firearm ban into a ten-year firearm ban for the reasons stated above in number two (Domestic Violence Cases).


4. Three Strikes Law: A felony that is reduced to a misdemeanor is treated as a felony for purposes of California's Three Strikes Law. For example, if the defendant is convicted of felony criminal threats, as a California strike offense, and the defendant later moves to have his felony reduced to a misdemeanor through a PC 17(b) motion, then the district attorney and the court will consider his prior criminal threats conviction as a felony strike, not a misdemeanor, should he pick up new criminal charges.


5. Other limitations: Other limitations on PC 17(b), where a felony is still treated as felony despite the fact that the defendant’s felony was reduced to a misdemeanor pursuant to PC 17(b) include: Application to enter the U.S. military, issues regarding immigration consequences for felony convictions, state bar discipline issues for lawyers, licensing with insurance boards, and more.


PC 17(b) Procedure: A motion to reduce a felony to a misdemeanor may be brought at, or contemporaneous with, the preliminary hearing, at sentencing, or any time after completion of probation on application of the defendant, the district attorney, or a probation officer. However, the best time to bring a PC 17(b) motion is likely at the preliminary hearing as it's not only the earliest opportunity to bring a PC 17(b) motion, but it also allows the case to proceed as a misdemeanor if successful.


Procedurally, a PC 17(b) motion may be made orally at the preliminary hearing or at sentencing. But a motion to reduce a felony to a misdemeanor that is brought after probation is completed must be in writing, and the post-probation PC 17(b) motion must be served on the district attorney and probation department where the conviction occurred.


PC 17 Laws (Abbrev.)


PC 17(a): A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.


PC 17(b): When a crime is 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, it is a misdemeanor for all purposes under the following circumstances:


1. After 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 (PC 17(b)(1)).


2. When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor (PC 17(b)(2)).


3. When 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 (PC 17(b)(3)).


4. When 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 (PC 17(b)(4)).


5. When, 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 (PC 17(b)(5)).


PC 17(e): Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.


Additional Post-Conviction Relief Options


In addition to the defendant’s motion to reduce a felony to a misdemeanor (PC 17(b) Motion), the defendant may have other post-conviction options. Some of these options apply to straight felonies as well as wobbler offenses and misdemeanor-only offense. They post-conviction options include, appeal of the criminal conviction, withdrawal of a guilty plea, motion to terminate probation early, motion to expunge a criminal record, and more.


To learn more about California Penal Code Section 17 and 17(b), or a motion to reduced felony offense to misdemeanor offense, contact our criminal defense lawyers today for a free consultation. Our criminal defense team has represented hundreds of defendants charged with just about every type of felony and misdemeanor crime, including serious and violent crimes like murder, torture, lewd acts on a minor, residential burglary, robbery, kidnapping, and more. We are winning trial lawyers serving Rialto, Redlands, Running Springs, Adelanto, San Bernardino, Colton, Fontana, Rancho Cucamonga, Victorville, Ontario, Yucaipa, Highland, Hesperia, Riverside, and more. Call today!


909-913-3138


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California Penal Code 17(b) Motion to Reduce a Felony to a Misdemeanor