If you believe you are eligible to reduce a felony to a misdemeanor under Penal Code Section 17(b), but the crime is now a misdemeanor under Proposition 47, is one better than the other? For many people using Section 17, subdivision (b)(3), will be better because using this method may restore the right to own or possess a firearm.
Section 17 applies when a person was convicted of what is known as a "wobbler," a felony that can also be charged as a misdemeanor. An individual with this type of conviction is eligible to ask the court to reduce the felony to a misdemeanor under Penal Code section 17, subdivision (b)(3), when "the court grants probation to a defendant without imposition of sentence 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." (Pen. Code, § 17, subd.(b)(3).
Using Section 17, subdivision(b)(3), is often better than resentencing to a misdemeanor under Proposition 47 for many individuals because this reduction restores an individual’s right to possess a firearm (if there is nothing else that would prohibit that person from owning/possessing a firearm). But if an individual is currently under a Family Law civil restraining order, for example, that individual is likely barred from owning/possessing a firearm while the restraining order is in effect. Also, a conviction for other felonies might prevent the person from owning/possessing a firearm.
Whereas, when an individual is resentenced under Proposition 47, that person is resentenced under Penal Code, §1170.18. Penal Code section 1170.18, subdivision (k), states that "[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm. . "
But under Proposition 47 relief must be granted unless the defendant poses an "unreasonable risk of danger to public safety." (Section 1170.18, subd. (b).) "Unreasonable risk of danger to public safety" is very narrowly defined as presenting a risk that the defendant will commit one of the "violent" felonies specified in Penal Code section 667, subdivision (e)(2)(C)(iv).
Whereas, the reduction under Penal Code section 17, subdivision (b)(3), is discretionary with the court. Thus, if a person qualifies for the reduction under Section 17, in my opinion, this is better for most individuals. But if the court denies the Section 17 motion, relief under Proposition 47 probably would still be available, if the person qualifies, at least until up to three years after the date Proposition 47 was passed (which was November 3, 2014.) After that, Proposition 47 relief is no longer available for most people.
If your prior felony was one that could have been charged as a misdemeanor, and you believe you qualify for relief under Section 17, subdivision (b)(3), ask your attorney if it would be better for you to use Penal Code 17 instead of Proposition 47 to reduce the felony to a misdemeanor.
Good luck.
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If you are a criminal defense lawyer, looking for a contract attorney to prepare a motion under Penal Code section 17, subdivision (b)(3), or you would like me to recommend an experienced criminal defense lawyer in Los Angeles, you can contact me at esserlaw@gmail,.com
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