Safe Havens

(B)  Alternative Felony-Misdemeanors.  Some offenses in some states are punished as alternative felony-misdemeanors (or “wobblers”), defined as an offense punishable, in the alternative, by a sentence either to state prison or county jail, where the county jail alternative is specifically listed in the statute specifying the punishment for the offense.

If an alternative felony-misdemeanor possession conviction is treated as a misdemeanor “for all purposes” under state law, then it will not be considered an “aggravated felony,” so long as the offense would not constitute a felony if prosecuted under federal law.

An alternative felony-misdemeanor is often initially punished as a felony, but can be reduced to a misdemeanor “for all purposes” in some states by a number of means.  For example, in California, a felony-misdemeanor becomes a misdemeanor if the court imposes a “judgment” (i.e., a non-probationary sentence) other than imprisonment in the state prison.[201]  The court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor,[202] or if the court grants probation without imposing a state prison sentence, and at that time, or upon application of the defendant or probation officer at a later time, declares the offense to be a misdemeanor.[203]

There is no time limit in California on a motion to reduce a felony to a misdemeanor.  Therefore, at any time after probation is granted, the defendant can make an application for an order from the court declaring an alternative felony-misdemeanor to be a misdemeanor.  If this order is granted, the offense becomes a “misdemeanor for all purposes” under California law.[204]

            The Ninth Circuit has held in an Arizona case that an alternative felony-misdemeanor, which was reduced to a misdemeanor after successful completion of probation, became at that time a misdemeanor with a one-year maximum sentence for purposes of the petty offense exception to inadmissibility under immigration law.[205]  This is also consistent with the rule that it is the final sentence that counts for immigration purposes, rather than the initial sentence.[206]

            Some felonies are not “alternative felony-misdemeanors” under state law,  and therefore may not be reduced from felonies to misdemeanors.  Other felony possession offenses would be felonies if prosecuted in federal court,[207] and might therefore be considered aggravated felonies even if the state court reduced the state convictions to misdemeanors.

[201] California Penal Code § 17(b)(1).

[202] California Penal Code § 17(b)(2).

[203] California Penal Code § 17(b)(3).

[204] California Penal Code § 17(b).

[205] LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003).

[206] Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles).

[207] 21 U.S.C. § 844(a) (possession of flunitrazepam (the “date rape” drug) or more than five grams of cocaine base).