According to the California Court of Appeals for the Fourth District, when a felony conviction is reduced to a misdemeanor and dismissed, it will still be considered a felony for enhancement purposes should the defendant suffer a future conviction. California Penal Code Section 17(b)(3) permits the court to convert a felony conviction to a misdemeanor, so long as the charge is one that carries a penalty of either imprisonment in state prison, imprisonment in county jail, or fine and imprisonment. These charges are often referred to as wobblers. A reduction is possible when the court grants probation without imposition of sentence and a request is made by either the defendant or the probation officer. Prior courts have held that a reduction under this code changes “the fundamental character of the offense” from a felony to a misdemeanor.
The defendant and his girlfriend in this case had been involved in a relatively tumultuous relationship that spanned over 11 years. During their relationship, there were allegations he had stalked, threatened, and yelled obscenities at her. On January 11, 2011, the defendant drove up to his girlfriend who was walking down the street. He angrily demanded to speak to her, but she refused. Later that day, as she pulled out of the driveway at her place of employment, she noticed the defendant’s car behind her. Of course, the accounts of what happened next differ between the defendant and his girlfriend. According to witnesses, the two stopped, got out of their cars, and were involved in a verbal altercation in the roadway. The verbal altercation was followed by a brief physical altercation and then both combatants getting back into their cars. As they drove away, the defendant rammed his car into the back of his girlfriend’s car. This caused her car to stall, which allowed the defendant to then ram the side of her car. It was at this time the police arrived and the defendant was arrested.
The defendant was eventually convicted of aggravated assault. The prosecution alleged several prior felony convictions for the purpose of sentence enhancement. One of these prior felony convictions was an assault with a deadly weapon involving a firearm from 1988. That conviction was subsequently reduced to a misdemeanor per California Penal Code 17(b)(3) and dismissed according to California Penal Code 1203.4 in 1991. Of course, the defendant argued the prior felony should not be considered for sentencing enhancement purposes because it was no longer a felony. It was a misdemeanor which had been dismissed. The trial court disagreed, and the defendant appealed.
The Court of Appeals affirmed the lower court’s ruling. California Penal Code Section 667(a)(1), the section dealing with sentencing enhancements for habitual offenders, applies to “any person convicted of a serious felony who previously has been convicted of a serious felony.” The court interpreted this language to mean that since the defendant’s prior conviction was initially a felony it fit within the definition. Even though the conviction was later reduced to a misdemeanor and dismissed, at the time of the conviction it was a serious felony. While there are certainly many benefits to having a felony reduced to a misdemeanor, so long as this court’s holding stands, those misdemeanors may be alleged as prior felony convictions for sentencing purposes in future cases.
If you have been charged of a criminal offense in San Diego, consult with a reputable San Diego criminal defense lawyer to determine what legal options you have to resolve the charge. For immediate legal help, contact San Diego criminal defense attorney Domenic J. Lombardo at (619) 232-5122 to schedule a free and confidential consultation.