Las Vegas, NV asked in Criminal Law for California

Q: In California, only so-called "Wobbler" Felonies, are eligible or can be reduced to misdemeanor status via 17b.

What if it is not clearly defined as a "Wobbler"...Supposedly H&S 11350 is not a "Wobbler" offense...Could a person still attempt to file a motion for reduction via 17B? And say they successfully filed the 17b motion...though it is not a "Wobbler" offense....And so long as the District Attorney does not object to the 17B motion... can a Judge then at their discretion grant the 17b motion?

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James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: In California, a "wobbler" offense is a crime that can be charged as either a felony or a misdemeanor, depending on the circumstances of the case and the defendant's criminal history. The decision to reduce a felony to a misdemeanor under Penal Code 17(b) is typically limited to these "wobbler" offenses.

Health and Safety Code 11350, which pertains to possession of a controlled substance, is generally not considered a "wobbler" offense. It is typically charged as a felony, although some exceptions exist under Proposition 47, which reduced certain drug possession offenses to misdemeanors.

However, even if an offense is not explicitly defined as a "wobbler," a defendant could still attempt to file a motion for reduction under Penal Code 17(b). The success of such a motion would largely depend on the specific circumstances of the case, the defendant's criminal history, and the discretion of the court.

If the District Attorney does not object to the 17(b) motion and the judge finds that the motion has merit, the court has the discretion to grant the motion and reduce the felony to a misdemeanor. The court would consider factors such as the nature and severity of the offense, the defendant's criminal record, and any mitigating or aggravating circumstances.

It's important to note that while it may be possible to file a 17(b) motion for a non-"wobbler" offense, the likelihood of success may be lower compared to cases involving "wobbler" offenses. Consulting with a criminal defense attorney familiar with California law would be advisable to determine the best course of action in a specific case.

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