PC 17(b) Reduce Felony to Misdemeanor in CA Sex Crimes. Sex Crimes Criminal Defense Lawyers Explain Penal Code 17(b) Motions
- sexcrimesdefensela
- Aug 14
- 7 min read
Updated: Oct 12
According to California penal code 17(b), it is possible to reduce certain felony criminal charges to misdemeanor criminal charges.
Per penal code 17(b), the reduction of a felony criminal charge to a misdemeanor criminal charge is possible both before, and even after, a defendant's criminal conviction.
Note: This summary of CA 17(b) motions to reduce felony criminal charges to misdemeanor criminal charges focuses on the law, procedure, and defense considerations of 17(b) motions as they relate to California sex crimes criminal charges; however, 17(b) motions may also apply to non-sex crimes.
For more information, contact our sex crimes criminal defense lawyers today for a free consultation.
PC 17(b) Law & “Wobbler” Crimes
First, the reduction of a felony criminal charge to a misdemeanor criminal charge is only possible in cases where the defendant is charged with, or convicted of, a “wobbler” offense. See List of Wobbler Sex Crimes.
"Wobbler" Offense Defined: A “wobbler” offense is any criminal charge that is capable of being charged either as a misdemeanor, or alternatively, as a felony (i.e., the criminal charge is capable of oscillating, or “wobbling” between two classifications of crime).
Example: The crime of oral copulation on a minor under the age of eighteen (18) [PC 287(b)(1)] may be charged either as a misdemeanor, or alternatively as a felony, depending on circumstances related to the case. Therefore, if the district attorney charges a felony violation of PC 287(b)(1), the defense may petitioner the court through a “17(b) motion” to have that felony charge reduced to a misdemeanor charge.
Some CA sex crimes may only be charged as a misdemeanor, or alternatively, only as a felony (i.e., the crime is not a “wobbler” crime).
Example: The crime of revenge porn (PC 647(j)(4) is only charged as a misdemeanor (no felony option); therefore, no 17(b) motion is available in a revenge porn case. Alternatively, the crime of lewd and lascivious act on a child under the age of fourteen (14) [PC 288(a)] may only be charged as a felony; therefore, no 17(b) motion is available to the defendant in a PC 288(a) case.
Warning: A “wobbler” sex crime that is initially charged as a misdemeanor, may be increased to a felony charge.
In other words, the reclassification of a “wobbler” offense can be decreased or increased (i.e. a felony charge can be decreased to a misdemeanor charge, or a misdemeanor charge can be increased to a felony charge).
Note: The 17(b) motion only refers to the reduction of a criminal charge. Therefore, the 17(b) motion is only used by defense. When the district attorney increases criminal charges from a misdemeanor to a felony, the district attorney does so at his or her “prosecutorial discretion.”
Example: David is charged with the crime of misdemeanor sexual battery (PC 243.4), a “wobbler” offense. After criminal prosecution begins, the district attorney decides to reclassify the crime as a felony with new evidence to support the reclassification.
Result: David’s misdemeanor sexual battery charge is increased to a felony charge.
17(b) Motion Timing: A motion to reclassify a felony charge to a misdemeanor charge may be brought at any time in a criminal case (i.e., at the beginning of the criminal prosecution, or even after the defendant is convicted of the felony “wobbler” crime).
However, most 17(b) motions will be argued by defense attorneys either immediately after the preliminary hearing stage of a criminal prosecution, or after a felony probation sentence is completed (i.e., post-conviction).
With some sex crimes, a post-conviction reclassification of a felony conviction to a misdemeanor conviction is necessary if the defendant intends to have his or her criminal conviction expunged or pardoned, or where the defendant intends to have his or her sex offender registration period reduced or terminated (PC 290.5).
Automatic Reclassification of Crime
Sometimes a “wobbler” sex crime is automatically reclassified after a criminal conviction (i.e., no need to petition the court for a 17(b) motion to reduce the felony conviction to a misdemeanor conviction.
This occurs in criminal cases where the defendant is convicted of a felony sex crime, which qualifies as a “wobbler” offense, but the judge does not sentence the defendant to prison, county jail, or probation at sentencing, and the crime is one that is listed in penal code 1170(H) (PC 17(b)(1)).
Example: David is convicted of felony indecent exposure inside an inhabited dwelling (PC 314.1), a “wobbler” offense that is listed in California PC 1170(H). David's conviction results in no prison, jail, or probation commitment as part of a plea bargain with the district attorney.
Result: David’s felony indecent exposure conviction is automatically reduced to a misdemeanor indecent exposure conviction, at judgement (sentencing), and without David having to file a 17(b) motion to reduce the felony to a misdemeanor.
Note: In the above example, If David's conviction for the crime of indecent exposure (PC 314.1) resulted in a probation sentence, without a jail or prison commitment, then David's reclassification of his felony to a misdemeanor crime is not automatic, but David may still petition the court to have his felony reclassified as a misdemeanor via a 17(b) motion (PC 17(b)(3)).
Sex Offender Registration Limitations
A granted PC 17(b) Motion that successfully reduces a felony “wobbler” sex crime to a misdemeanor does not relieve the defendant of his or her duty to register as a sex offender pursuant to PC 290 (PC 17(e)). However, the amount of time that the defendant must register as a sex offender may be reduced after reclassification of a felony sex crime to a misdemeanor sex crime (very limited situations where tier 3 [lifetime registration] classification is not automatic).
PC 17(b) Motion Eligible Sex Crimes: The following sex crimes are classified as “wobbler” sex offenses. Therefore, a felony violation of any of the below-listed sex crimes may be reduced to a misdemeanor violation upon successful 17(b) motion [Partial List]:
PC 243.4 Sexual Battery
PC 261.5 Unlawful Sexual Intercourse
PC 261.5(d) Statutory Rape
PC 266 Seduce Minor for Prostitution
PC 286(b)(1) Sodomy of Minor
PC 287(b)(1) Oral Copulation of Minor
PC 288(c)(1) Lewd Act on Minor 14/15
PC 288.2(a)(1) Dist. Lewd Matter to Minor
PC 288.4 Arrange to Meet Minor for Sex
PC 289(h) Sexual Pen. by Object on Minor
PC 311.11(a) Possession of Child Porn
PC 311.11(c)(2) Sadomasochistic Child Porn
PC 314.1 Indecent Exposure
PC 647.6(b) Child Molestation in Dwelling
Keep in mind that many of the above-listed “wobbler” offense resemble other non- “wobbler” offense that are not capable of felony-to-misdemeanor reduction.
Example: The crime of sexual penetration by object against a minor who is seventeen (17) years of age is usually charged as a violation of penal code 289(h), a “wobbler” offense, but if the victim is alleged to have been threatened during the crime of sexual penetration (regardless of the victim’s age), then the crime is usually charged as a violation of penal code 289(g), a non-“wobbler” offense.
Example II: The crime of sexual battery may be charged either a violation of penal code 243.4, which is a "wobbler" offense, or alternatively as a violation of penal code 243.4(e)(1), a non-"wobbler" misdemeanor only offense.
Per the above examples, it is very important to look at the exact sex crime and code section for which the defendant has been charged to determine if the crime is eligible for a 17(b) motion.
Non-"Wobbler" Sex Crime List: The following list of common California sex crimes do not qualify for 17(b) motions because these crimes can only be charged, by law, either as a misdemeanor, or as a felony (i.e., these crimes do not "wobble" between classification of crime).
PC 290 Kidnap to Commit Sex Offense (Felony)
PC 220 Sexual Assault (Felony)
PC 236.1 Human Sex Trafficking (Felony)
PC 243.4(e)(1) Misdemeanor Sexual Battery (Misd.)
PC 261(a) Rape by Force or Fear (Felony)
PC 262 Spousal Rape [Aka PC 261(a)] (Felony)
PC 264.1 Rape in Concert [Gang Rape] (Felony)
PC 266(h) Pimping (Felony)
PC 266(i) Pandering (Felony)
PC 267 Abduct Minor for Prostitution (Felony)
PC 269 Aggravated Sexual Abuse of Child (Felony)
PC 285 Incest (Felony)
PC 286.5 Sex with Animal (Misdemeanor)
PC 288(a) Lewd Act on Child Under 14 (Felony)
PC 288(b) Lewd Act on Child Under 14 w/Force (Fel.)
PC 288(i) Lewd Act on a Child w/Injury (Felony)
PC 288.5 Cont. Sexual Abuse of Child (Felony)
PC 288.7 Lewd Act on Child Under 10 (Felony)
PC 311.6 Engage in Obscene Conduct (Misd.)
PC 315 Operate House of Prostitution (Misd.)
PC 318 Capping for Brothel (Misdemeanor)
PC 647(a) Lewd Act in Public (Misdemeanor)
PC 647(b) Engage in Prostitution (Misdemeanor)
PC 647(J)(1) Peek into Dressing Room (Misd.)
PC 647(J)(2) Video Person in Undergarment (Misd.)
PC 647(J)(4) Revenge Porn (Misdemeanor)
PC 647.6(C) Child Molesting w/Prior (Felony)
PC 664/261(a) Attempted Rape (Felony)
17(b) After Probation Completed
If the defendant motions the court for relief under 17(b) after a criminal conviction (as opposed to during the criminal prosecution process), then the defendant will not qualify to have his felony sex crime reduced to a misdemeanor sex crime unless the defendant’s felony probation terms, if any, have been completed (PC 17(b)(3)).
However, failure to fulfill a restitution order as a term of probation may not be the basis of denying the 17(b) application if the defendant was unable to afford the restitution and the judge exercises discretion in granting the motion (PC 17(f)).
Example: David is convicted of felony possession of obscene material depicting a minor (PC 311.11), a “wobbler” offense. David is placed on probation and ordered to pay restitution as a term of his probation. David fulfills all probation terms other than the restitution term and he applies to have his felony PC 311.11 conviction reduced to a misdemeanor PC 311.11 conviction.
Result: The judge may grant David’s PC 17(b) motion, so long as the judge uses its discretion in deciding whether to granting the motion.
For more information on PC 17(b) motions to reduce a felony sex crime to a misdemeanor sex crime, or to contact a sex crimes criminal defense attorney in the Inland Empire, call our law firm today for a free consultation.
Our award-winning sex crimes criminal defense lawyers, including winning trial lawyers, have handled hundreds of misdemeanor and felony sex crimes in San Bernardino, Riverside, Los Angeles, and Orange County.
We have successfully defended against the toughest sex crimes criminal charges in California, including child molestation, sexual battery, lewd act on a minor, possession of child pornography, statutory rape, rape by force or fear, prostitution, indecent exposure, pimping, pandering, human sex trafficking, aggravated sexual assault of a child, sodomy, incest, and more. Call today!
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