Post-Conviction Relief for Immigrants

California law will be discussed as an example.  It is necessary to check the relevant state statutes to determine if a parallel procedure is available.  A felony defined by a statute that specifically provides for either a county jail sentence or a state prison sentence is called an alternative felony-misdemeanor, or a “wobbler.”  Only these offenses may be reduced.  A magistrate may also reduce a felony to a misdemeanor under Penal Code § § 17(b)(5) and 18 when the offense is described as a felony punishable by state prison or a fine, without an alternative sentence to county jail.  But when the offense is punishable only by state prison, it is not reducible.[427]  For example, California Penal Code § 489 states: 

Grand theft is punishable as follows:

(a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2 or 3 years.

(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.

Grand theft of a firearm is punishable under California Penal Code § 489(a) by a state prison sentence, and the statute does not provide an alternative sentence of either county jail or a fine.  Therefore, this offense is a “non-alternative felony,” and is not reducible pursuant to California Penal Code § 17(b)(3).  On the other hand, California Penal Code § 489(b) specifies that all other grand thefts are punishable “by imprisonment in a county jail . . . or in the state prison.”[428]  Therefore, a felony conviction of grand theft of anything but a firearm may be reduced to a misdemeanor under California Penal Code § 17(b)(3).  If the punishment specified in the statute is simply that the offense is punishable by imprisonment in the state prison, period, it is a non-reducible felony.  If the statute specifies that the offender may be punished by imprisonment in the state prison or by a fine, then it is a reducible alternative felony-misdemeanor.[429]

            In a related context, the Ninth Circuit has described the factors relevant to a determination whether an alternative felony-misdemeanor constitutes a felony or a misdemeanor:

Qualls' conviction was a felony because the offense was punishable by more than one year in prison, see United States v. Horodner, 993 F.2d 191, 194 (9th Cir. 1993), and because the conviction did not qualify as a misdemeanor under either California Penal Code § 17(b)(1) or (3).  Qualls' $500 payment for early termination of his probation was merely a fee to cover the costs of Qualls' probation, and was not a “punishment other than imprisonment in the state prison.” See Cal.Penal Code § 17(b)(1).  In addition, Qualls' initial probation was not a “judgment imposing punishment other than imprisonment in the state prison.” See id.; United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (citations omitted).  Finally, the California court never declared Qualls' conviction a misdemeanor, nor did Qualls ever apply to have his offense declared a misdemeanor.  See Cal.Penal Code § 17(b)(3); People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102, 116 (1959) (in banc). [430]

[427] People v. Isaia, 206 Cal.App.3d 1558, 254 Cal.Rptr. 500 (1989).

[428] California Penal Code § 489(b).

[429] People v. Superior Court (Alvarez), 14 Cal.4th 968, 976, 60 Cal.Rptr.2d 93 (1977).

[430] United States v. Qualls, 172 F.3d 1136, 1137-38 (9th Cir. Apr 15, 1999).