Reduction of a felony charge to a misdemeanor

In a recently published decision, a California Court of Appeal decided that a judge may consider a Probation Officer's report when deciding whether to reduce a felony charge to a misdemeanor.

Case Name: People v. Tran
Opinion Date: 12/1/2015


Trial court may properly consider the facts set forth in a probation report that the defendant had an opportunity to challenge when considering whether to reduce a felony to a misdemeanor under Penal Code section 17, subdivision (b).

Tran fired shots at Dao's home and was charged with shooting at an inhabited dwelling. He pleaded no contest to assault with force likely to produce great bodily injury and to being a misdemeanant in possession of a firearm. The stated factual basis for the plea did not include information about the shooting, but a postplea, presentence probation report did. The trial court placed Tran on probation, which he successfully completed in 2009. In 2012, Tran filed a section 17(b) motion to reduce his offense from a felony to a misdemeanor (two previous section 17(b) motions had been denied). The trial court considered the probation report in evaluating the motion over the defense's objection. The trial court again denied Tran's section 17(b) motion. Tran appealed.

The Court of Appeal affirmed the trial court's ruling. In doing so, it stated that a court has broad discretion under section 17(b) in deciding whether to reduce a wobbler offense to a misdemeanor, and the court may consider the nature and circumstances of the offense. The Court of Appeal here concluded that, "where the defendant has had an opportunity to review the postplea probation report and challenge its contents, including its statement of the facts and circumstances of the offense, the trial court is entitled to consider the information in that report in determining whether to reduce a felony conviction to a misdemeanor." The trial court properly considered the probation report in Tran's case under this standard. The court distinguished People v. Trujilio (2006) 40 Cal.4th 165 and related cases, which address proving facts for a sentencing enhancement. In this case, Tran was seeking leniency from the court to reduce his offense.


Trial court may (but is not required) to grant a 17(b) motion if the defendant successfully completes probation.

Tran also argued that the trial court abused its discretion in denying his 17(b) motion because he had successfully completed probation. The Court of Appeal disagreed. Although the trial court's ability to reduce a felony to a misdemeanor after probation has been granted serves as both a motivation and reward to a defendant to comply with probation conditions (People v. Feyrer (2010) 48 Cal.4th 426, 439-440), a convicted defendant is not entitled to the benefits of section 17(b) as a matter of right. Rather, a reduction is an act of leniency by the trial court. Had the Legislature intended for the relief of section 17(b) to be mandatory under any circumstances, it would have made that intent plain in the statutory language. It did not, and the Court of Appeal would not "add such terms to the statute."

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