This is an excellent question, because usually when it comes to criminal defense, judges control the sentence, while prosecutors control what the charges are. So, a lot of times a case can't be worked out or resolved because a defendant wants a misdemeanor and the prosecutors have charged him or her with a felony and they will not reduce the case down to a misdemeanor.
Therefore, the defendant will not take a deal on the case because they don't want to plead to a felony and be subjected to all of the penalties that come along with that, like the loss of your ability to bear arms, your loss of your ability to vote, the fact that you're typically going to be put on felony probation — there's a whole host of problems that come along with a felony.
Judge Has the Authority to Reduce Charges – Penal Code 17(b)
So, the question becomes, when can the judge get involved and try to reduce a felony to a misdemeanor. There are some circumstances where the judge can do it. There's a Penal Code 17(b)(5) which basically says that the judge has the authority to reduce a felony to a misdemeanor.
A lot of times what you need in order to try to get the judge to do that is you have to get the facts of the case in front of the judge. Where that usually happens, at least in my experience, is when you do a preliminary hearing in front of the judge, then the judge can see what the charge is all about and then it's just a matter of them looking at the probation report in the case to see what the person's criminal record looks like.
Those are the two key ingredients that the judge needs in order to make a decision whether the case warrants being reduced from a felony to a misdemeanor.
So, a lot of times defense attorneys, at the end of a preliminary hearing, will make a motion if the judge doesn't dismiss the case for them to reduce it down to a misdemeanor.
Obviously, the judge reduces it to a misdemeanor you can usually resolve the case at that point and now the person is not looking at being placed on felony probation or all of the different consequences that come along with a felony conviction.
Defense Motion For a PC 17(b) Reduction to Misdemeanor
That's probably the biggest area where I see judges having the power and actually being willing to use the power, is when the defense makes a motion for a 17(b)(5) under that Penal Code Section for the judge to reduce the case down to a misdemeanor.
That's usually the place that the judge will do it, is at the end of the prelim when they see all the facts and can really have a feel for how serious the defendant's behavior was.
And that's really what they're looking at and weighing in deciding whether to actually reduce a case form a felony to a misdemeanor — what happened in the case? Is it felony conduct? Does this person have a history of committing crimes where they really don't deserve to get a misdemeanor in the case?
How dangerous is the person? And what other things can the defense point out to the judge that makes sense to reduce the case down to a misdemeanor.
Another area where I see the judges having the power to reduce a felony to a misdemeanor is when somebody pleads to a felony — that's a wobbler, meaning it can be reduced down to a misdemeanor at some point, and at the end of probation the person does everything they're supposed to.
They complete all of the terms and condition, and doesn't have any new arrests, then a lot of times the defense attorney can file a motion with the court at the end of probation to reduce the case down to a misdemeanor and a lot of times that's going to be granted if it's the right type of case to reduce to a misdemeanor and the person was successful in their probation, didn't have any violations and the judge feels it's the right thing to do.