Criminal Defense of Immigrants


§ 11.15 2. Procedure

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There are two primary post-conviction ways to reduce a felony to a misdemeanor in certain states, such as Arizona[126] and California.[127]  First, the defendant can make a motion to reduce the conviction from felony to misdemeanor.[128]  Second, if the conviction can be vacated in its entirety as legally invalid, counsel can attempt to negotiate a misdemeanor plea.  The first means is discussed here.


                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.  The basic requirements for this reduction are as follows:


(a)       The conviction must be for an alternative felony-misdemeanor, or “wobbler,” i.e., a crime for which the statute defining offense specifies a punishment of state prison with an additional alternative of county jail or a fine;


(b)       The sentencing court must grant probation without imposition of sentence; and


(c)        The judge must then or thereafter declare the offense to be a misdemeanor.


Counsel must check the relevant state statutes to determine if a parallel procedure is available in other states.


[126] LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (Arizona state court designation of a wobbler offense as a misdemeanor was held binding on the BIA for  purpose of applying petty offense exception).

[127] For a detailed treatment of this procedure under California law, see N. Tooby, California Post-Conviction Relief for Immigrants § § 9.38-9.50 (2002); N. Tooby, Post-Conviction Relief for Immigrants § § 7.120-7.132 (2004).

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