In certain felony cases, and there are many, a judge has the discretion to reduce a felony to a misdemeanor (Penal Code section 17(b)). The judge will usually exercise this discretion only when requested to do so by the defendant’s attorney and this will commonly occur at two different points in time; at a client’s preliminary hearing or, after he/she has completed a probationary sentence.
If the motion is made at a preliminary hearing, the attorney will orally direct the court’s attention to the evidence presented at the hearing that favors a reduction to a misdemeanor. If the motion is made after probation has ended, then the motion should be in writing and filed with the court in which the defendant was originally sentenced, even if the judge who imposed the sentence is no longer on the bench or is now retired. The motion must be filed with the court and served on the prosecutor’s office at least 10 days before the hearing date on the motion. This rule is to allow the prosecutor time to respond to the motion; either to object to the request or to inform the court of any discrepancies in the defendant’s performance while on probation.
The motion should be prepared by an experienced attorney, who is familiar with drafting such motions. The attorney will include a statement of facts and most importantly, lay out the compelling reasons why the court should grant the client’s request. A declaration should also be included and signed by the client affirming the reasons set forth in the motion. At the hearing on the motion, a well-prepared attorney should anticipate any objections by the prosecutor so that he/she will be able to overcome those objections, if any. In many cases, the attorney can “sound out” the prosecutor’s views before the motion is even heard on the record.
If a motion to reduce a felony to a misdemeanor is granted, the judge will sign an order that states that probation is terminated, and the court clerk will also be able to prepare a docket of the court minutes. These documents can be provided to potential employers, or to whomever, such information will have a positive impact. Additionally, the court clerk will forward the information to the California Department of Justice so that the client’s record will be updated to reflect the charge reduction. While a reduction of a felony charge to a misdemeanor can provide a tremendous lift to a client’s chances for a new job opportunity, minimize immigration consequences, or restore gun rights, it is important to discuss all the implications of the reduction with an experienced attorney.