This is an excellent question because typically, when it comes to criminal defense, judges control the sentence, while prosecutors control the charges.  Therefore, a case often cannot be resolved because a defendant wants a misdemeanor, but the prosecutors have charged them with a felony, and they will not reduce the case 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, the 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.

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 is a Penal Code 17(b)(5), which essentially states 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. The judge can determine what the charge is all about, and then it's just a matter of reviewing the probation report in the case to assess the person's criminal record.

Those are the two key ingredients that the judge needs to consider when deciding whether the case warrants a reduction from a felony to a misdemeanor.

At the end of a preliminary hearing, defense attorneys often step in to advocate for a reduction to a misdemeanor if the judge doesn't dismiss the case. This proactive approach can significantly impact the outcome of the case, highlighting the influence and power the defense has in the legal process.

When the judge reduces the case to a misdemeanor, it often facilitates a more favorable resolution. The individual is no longer at risk of being placed on felony probation or facing the severe consequences of 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 it: when the defense makes a motion for a 17(b)(5) under that Penal Code Section for the judge to reduce the case to a misdemeanor.

It's at this point, after considering all the facts, that the judge usually exercises their authority to reduce a case from a felony to a misdemeanor. This reassures the defendant that their behavior and the circumstances of the case are being carefully weighed, instilling a sense of security and confidence in the process.

And that's really what they're looking at and weighing in, deciding whether to actually reduce a case from a felony to a misdemeanor — what happened in the case?  Is it felony conduct?  Does this person have a history of committing crimes that warrant a misdemeanor in this case?

How dangerous is the person?  And what other things can the defense point out to the judge that would make sense to reduce the case to a misdemeanor?

Another area where I see judges having the power to reduce a felony to a misdemeanor is when somebody pleads to a felony—that's a wobbler. A wobbler is a term used to describe a crime that can be charged as either a felony or a misdemeanor, depending on the circumstances and the defendant's criminal history.

This means it can be reduced to a misdemeanor at some point, and upon completing probation, the person does everything they're supposed to. In other words, a wobbler is a flexible charge that can be adjusted based on the specific circumstances of the case and the defendant's behavior.

They fulfill all the terms and conditions and have no new arrests. Often, the defense attorney can file a motion with the court at the end of probation to reduce the case to a misdemeanor. A lot of times, that's going to be granted if it's the right type of case to reduce to a misdemeanor. For instance, non-violent crimes such as theft or drug possession, or first-time offenses like a DUI, are often considered the right type of case. If the person was successful in their probation and didn't have any violations, the judge feels it's the right thing to do.