Can felony convictions, dismissed under Ca. Penal Code Sec. 1203.4, be reduced to misdemeanors?

Successfully completing probation may earn you a dismissal. Can you reduce that dismissed felony to a misdemeanor?

Updated May 6, 2016

Defendants in California criminal cases who have successfully completed probation (or who have been discharged from probation) may petition the court to dismiss the findings of guilt against them (or to withdraw their guilty pleas, if they did not go to trial). Thereafter, with certain exceptions, the defendants are released from all “penalties and disabilities” that would normally attend a criminal record of conviction. For example, assuming the defendant has no other criminal convictions, the defendant can now say, “None” when asked by a landlord about a criminal record.

The exceptions noted above are significant. The conviction remains as is for purposes of holding public office, owning a gun, and contracting with the state lottery commission. Notably, it can affect the defendant’s later involvement in the criminal justice system (it can operate as a “prior felony conviction” to elevate a new charge or extend a sentence). A dismissal also does not affect suspension or revocation of a professional license, summary disbarment of an attorney, or the suspension of a drivers’ license. In short, a dismissal doesn’t totally expunge or nullify the underlying conviction or plea.

Now, imagine a defendant placed on probation for a felony offense that would have been a misdemeanor had Prop 47 been in effect at the time of charging or sentencing. That defendant completes probation and obtains Section 1203.4 relief—the court dismisses the felony conviction. But it remains a felony conviction for certain purposes, as just noted. Can this defendant petition pursuant to Proposition 47 to have the felony conviction reduced to a misdemeanor, in spite of the fact that it has been dismissed? If successful, the defendant would be out from under the burdens that normally remain following a dismissed felony conviction.

An appellate court has answered this question in favor of the defendant, in People v. Tidwell, 2016 DAR 3259. Having been discharged from probation, Mr. Tidwell’s felony convictions for drug possession were dismissed. These charges would have been misdemeanors had Prop 47 been in effect when he was sentenced. But as you have seen, the felony convictions remained on the books for purposes of licensure and so on. Courtesy of a sentencing judge’s application of Prop 47, however, those felony convictions were reduced to misdemeanors.

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