Post-Conviction Relief for Immigrants

 At the time of, or after, a defendant has been placed on probation for a felony‑misdemeanor, also known as a “wobbler” offense, in some states the court may declare that the offense is a misdemeanor for all purposes under some state statutes.  For example, California Penal Code § 17(b)(3) provides:

(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail,[426] it is a misdemeanor for all purposes under the following circumstances:

. . .

(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. 

[426] Under California Penal Code § 17(a), a felony is an offense which is punishable with death or by imprisonment in the state prison; every other crime is a misdemeanor or an infraction.  However, certain offenses, known as alternative felony-misdemeanors or “wobblers,” may be punished either by state prison or by fine or imprisonment in county jail, at the discretion of the trial judge.  People v. Mendez, 234 Cal.App.3d 1773, 286 Cal.Rptr. 216 (1991); see People v. Beebe, 216 Cal.App.3d 927, 930, 265 Cal.Rptr. 242 (1989).  Where a judgment other than probation or state prison is imposed, the offense at that point becomes a misdemeanor.  California Penal Code § 17(b)(1).