Under Penal Code 17b, a California court has the power, under certain circumstances, to reduce your felony conviction to a misdemeanor.
This can be extremely powerful to create future opportunities for your business, employment, and personal freedom.
Below I discuss the 5 most important things you should know about obtaining this relief in court.
1. Time in Prison Prohibits Relief under Penal Code 17b
Unfortunately, if you served time in State Prison on your felony, this will prohibit you from the ability to have your felony reduced.
By definition, all felonies carry potential time in prison as a consequence.
But many felony convictions result in the judge sentencing you to incarceration in the county jail. If you were incarcerated in the county jail instead of the state prison, then you are still eligible to file a written motion requesting Penal Code 17b relief (discussed in the next step).
2. To Obtain Relief Under Penal Code 17b, You Must File a Written Motion
In order to obtain any type of legal relief in court, including under Penal Code 17b, you (or your attorney) must file a written motion in court.
A “motion” is the formal legal method to:
- request your relief,
- state the legal grounds upon which relief is requested, and
- explain how the facts of your circumstances should convince the judge to rule in your favor.
Further, you (or your attorney) will be given an opportunity to present oral argument at a hearing in open court before the judge that supports your written motion.
The prosecutor in your jurisdiction, whether a City Prosecutor or District Attorney, will often file a written motion in opposition to your motion.
In nearly every case, the Prosecutor will argue orally in court against your motion to rebut your arguments.
Consequently, it’s very important to make sure you are thoroughly prepared to present your best case to the judge.
3. Penal Code 17b Allows the Judge Discretion When Considering Your Case
Be mindful that even though the law throughout California is uniform, the role of the judge is to make a decision on your case that is impartial and holds most closely to honoring the law in your circumstance.
On a Penal Code 17b motion, the law gives the judge discretion to grant or deny your motion based on general factors called the Alvarez factors (from the Alvarez case).
The Alvarez factors include:
- the nature and circumstance of the offense,
- the defendant’s appreciation of and attitude toward the offense, and/ or
- the defendant’s traits of character as evidenced by his or her behavior or demeanor at trial.
Unlike a Prop 47 motion, which also gives the court power to reduce certain felonies to misdemeanors, a Penal Code 17b motion does not have any objective criteria by which the judge can give a thumbs up or thumbs down.
After applying the Alvarez factors and considering all of the facts, the judge will exercise his or her best judgment on your case and decide whether or not to reduce your felony.
4. If the Judge Grants Your Motion, Your Gun Rights Might be Restored
In California, when you are convicted of any felony, you will lose your right to possess a firearm.
If you are successful in your motion with the court, in most cases this will restore you to your pre-felon status and allow you to possess a firearm again.
But here’s the catch: your right to possess a firearm will be restored only as long as a misdemeanor version of the safe offense would not also cause you to lose your firearms rights.
Put another way: if the misdemeanor version of your felony would also take away your right to own or possess a firearm, then Penal Code 17b will not restore your gun rights.
5. If the Judge Denies Your Motion, You May be Able to Use Prop 47 as Backup
Penal Code 17b is not the only means to reduce your felony to a misdemeanor, although it is the most expansive and the most restorative way to do it.
But if the judge denies your Penal Code 17b motion, you may be eligible to file a motion under Proposition 47 (“Prop 47”).
A Prop 47 motion has its benefits as well as its drawbacks.
Prop 47 Benefits
The most obvious benefit of filing a Prop 47 motion is that the judge lacks discretion to grant or deny your motion.
This means that the judge has a basic checklist when ruling on a Prop 47 motion, and if all of those elements are met, the motion must be granted – regardless of the judge’s “opinion” of whether it should be granted.
Another way a Prop 47 motion is less prohibitive is that you are eligible for relief whether or not you served time in state prison. In fact, a successful Prop 47 motion can result in re-sentencing by the judge so that you receive early release from jail or prison.
Prop 47 Drawbacks
One downside of a Prop 47 motion is that it only applies to a select number of offenses, and you are rendered ineligible for Prop 47 relief by the past commission of certain sex offenses.
Another downside is: a successful Prop 47 motion will not restore your gun rights.
Summing Up the Difference
Think of it this way: a successful Penal Code 17b motion is a greater win than a successful Prop 47 motion, but a 17b motion is harder to get.
Improve Your Chances of Reducing Your Felony
A felony conviction can stand in the way of your dream job, important business contracts, or other crucial goals.
You do not want to approach such an important opportunity casually or without preparation. Hiring an experienced attorney to stand by your side and take charge of the process for you can tip the scales greatly in your favor.
To speak with me personally for a free consultation regarding your case, please click below.