(A)

Effects of Reduction Under California Criminal Law.  “Penal Code § 17(b) states that, on the grant of this relief, the crime is a misdemeanor ‘for all purposes.’  For example, for impeachment purposes, the conviction has lost its felony character.  People v. Collins (1986) 42 Cal.3d 378, 390, 228 Cal.Rptr. 899.

 

“Case law and other statutes, however, have carved out many exceptions.  The conviction remains a prior strike under the ‘Three Strikes’ law unless the misdemeanor reduction occurred at the time of initial sentencing. People v. Superior Court (Alvarez), supra.  Penal Code § § 667(d)(1), 1170.12(b)(1). 

 

“No case has decided whether 17(b) restores a felon’s right to possess a gun.  But see People v. Banks (1959) 53 Cal.2d 370, 388, 1 Cal.Rptr. 669 (presuming, but not deciding, that 17(b) relief does restore that right).  A motion to reduce an alternative felony-misdemeanor to a misdemeanor under Penal Code     § 17b enables the defendant to possess a concealable weapon without violating Penal Code § 12021.  People v. Norton (1978) 80 Cal.App.3d Supp. 14 (which states, in dictum, “a person convicted of an offense punishable as a felony may not possess the concealable weapon until the offense is declared to be a misdemeanor.”).  The federal government still considers the expunged conviction a felony for purposes of its gun statutes.  United States v. Tallmadge, 829 F.2d 767, 770; 18 U.S.C. § 921(a)(20) (9th Cir. 1987).  Under Business & Prof. Code  § 6102, the crime remains a felony for attorney disciplinary purposes.  This is also the case for several other state-regulated professions.”[77]

 

If a “wobbler” was reduced to a misdemeanor under Penal Code § § 17(b), (c), “the prior cannot be the basis of a prior-conviction enhancement.”[78]

 

“The reduction of an offense to a misdemeanor by operation of Penal Code § 17(b) or (c), after the time of sentencing, however, will not result in the offense being deemed a misdemeanor for purposes in a subsequent prosecution.  Rather, the offense will be deemed a felony and may be used as a ‘qualifying prior’ for ‘Three Strikes,’ if it meets other requirements for its use as such.”[79]

 

Vehicle Code § 23550.5 (formerly § 23175.5) provides a conviction for driving under the influence becomes a felony if the defendant had previously suffered a conviction for driving under the influence causing injury under Vehicle Code § 23153(b).  Where the court had reduced the prior conviction to a misdemeanor under Penal Code § 17(b)(3), the conviction was a misdemeanor for all purposes and could not be used as a prior felony conviction to enhance the sentence for a later conviction for driving under the influence.[80]

 

[77] CEB § 39.14, p. 1083.

[78] 5 California Criminal Defense Practice § 91.80[3], p. 91-270, citing People v. Marshall (1991) 227 Cal.App.3d 502, 503-505, 277 Cal.Rptr. 846 (prior, for which defendant was committed to and honorably discharged from CYA, could not be the basis of former Penal Code § 667 (now see § 667(a)) prior-serious-felony enhancement).

[79] 5 California Criminal Defense Practice § 91.11[2], p. 91-329 [emphasis added], citing People v. Franklin (1997) 57 Cal.App.4th 68, 66 Cal.Rptr.2d 742.

[80] People v. Camarillo (2000) 84 Cal.App.4th 1386.

Ninth Circuit

SENTENCE " REDUCTION FROM FELONY TO MISDEMEANOR " PENAL CODE 1170.18 REQUIRES REDUCTION OF POSSESSION CONVICTION UNDER HEALTH & SAFETY CODE 11377(a) AND REMAND FOR RESENTENCING
People v. DeHoyos, ___ Cal.App.4th ___, 2015 WL 3978685 (4th Dist. June 30, 2015) (amendment to Health & Safety Code 11377(a), which made possession of controlled substance punishable as a misdemeanor, did not retroactively apply to defendant's conviction for possession of methamphetamine, such that she was not automatically entitled to resentencing; defendant was required to utilize statutory resentencing procedure; Act indicated legislative intent not to permit automatic application of Act to anyone currently serving sentence).