Under certain circumstances, the sentencing court has jurisdiction to grant a motion to reduce a felony to a misdemeanor, and a misdemeanor to an infraction.  These motions may freely be granted at the discretion of the court, and constitute powerful tools to reduce or eliminate certain adverse immigration consequences of criminal convictions and sentences.

            This chapter will cover the immigration benefits of reducing a felony to a misdemeanor, or a misdemeanor to an infraction.  These benefits include avoiding immigration damage, or obtaining an immigration benefit that depends on (1) whether the immigrant has a felony conviction, (2) whether the immigrant has one or more misdemeanor convictions, and (3) whether the maximum custody punishment for an offense is one year or less.

 

            This chapter will discuss three related forms of post-conviction relief which can reduce the level of a conviction from felony to misdemeanor, or from misdemeanor to infraction:

 

(1)  a post-sentence motion to reduce a felony to a misdemeanor under Penal Code § 17(b)(3);

 

(2)  the automatic reduction of a felony to a misdemeanor that occurs upon honorable discharge from a commitment to the California Youth Authority, pursuant to Penal Code § 17(c); and

 

(3)  a motion to reduce a misdemeanor to an infraction under Penal Code § 17(d).

 

Motions to reduce the level of the offense can have powerful effects in improving the lot of immigrants.  Counsel may discover other benefits, not discussed here.  For example, under certain circumstances, an order reducing the level of the offense may be considered to alter immigration effects that flow from serving a certain period of actual incarceration as a result of a conviction.

 

Other

CAL CRIM DEF " SENTENCE " LEVEL OF OFFENSE " ORDERS GRANTING SUMMARY PROBATION OR A CONDITIONAL SENTENCE CONVERT FELONIES TO MISDEMEANORS BY OPERATION OF LAW
When court probation is granted in a felony case, that ruling automatically converts the felony to a misdemeanor. Penal Code 1203(a). When a conditional sentence is granted on a wobbler, the wobbler becomes a misdemeanor by operation of law. People v. Glee (2000) 82 Cal.App.4th 99, 105-106, People v. Taylor (2007) 157 Cal. App. 4th 433, 437. A grant of informal or summary probation is a "conditional sentence." (Pen. Code, 1203(a). (citations omitted). This is because such a disposition is available only in misdemeanor cases (that is, felony probation must be "formal"). Conditional sentences are authorized only in misdemeanor cases. (Pen. Code, 1203, subd. (a) ["It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors"]; 1203, subd. (d) ["If a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence"]; 1203b ["All courts shall have power to suspend the imposition or execution of a sentence and grant a conditional sentence in misdemeanor and infraction cases without referring such cases to the probation officer"].) Examples: sentences of: [1] 30 days in jail and formal probation does not make a felony a misdemeanor. [2] 30 days in jail with informal probation makes a felony a misdemeanor. [3] 30 days in jail with no probation makes a felony a misdemeanor. Thanks to Dan Mayfield and Paul Upton.