A Felony Conviction Can Be Used to Impeach You - Use Penal Code Section 17(b) to Reduce It to a Misdemeanor

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A felony conviction can be used to impeach the testimony of any witness. When it's one person's word against another, a felony conviction can mean losing. But some felonies can be reduced to misdemeanors

Due to a misunderstanding, when the defendant served interrogatories on our client Jack, he suddenly remembered that years earlier he pleaded guilty to felony theft related to an old job. He claimed the conviction was not what it seemed. Jack said the DA threated him with the possibility of a long jail sentence if he pleaded not guilty and mere probation if he pleaded guilty. Civil lawsuit discovery almost always includes a series of questions called interrogatories that each side asks the other and that the asked party must answer in writing under penalty of perjury.  In the California Judicial Council's general form interrogatories question 2.8 asks, "Have you ever been convicted of a felony?"

California Penal Code Section 17(b) allows some convicted felons to reduce their felony conviction to a misdemeanor as a matter of right, and for some other defendants the decision is left to the court's discretion.  The legal effect of a 17(b) reduction is that for all purposes except immigration and law enforcement, the conviction is a misdemeanor.

Because Jack's conviction related to theft and employment, it would have been a disaster for his case. Even if he had a good explanation, a competent defense attorney would spend hours methodically questioning Jack about the circumstances of the conviction and that would poison the jury.

Sean asked opposing counsel for an extension to respond to the interrogatories.  Sean then went to work investigating the circumstances of the conviction and probation requirements and learned that Jack had failed to pay a small portion of an old probation fee and this rendered him ineligible for a 17(b) reduction as a right. Sean directed Jack to pay the balance and then prepared a motion to reduce the conviction to a misdemeanor under California Penal Code section 17(b). Sean worked with Jack to get evidence of his good moral character and rehabilitation and requested expedited treatment.  Luckily opposing counsel asked for an even longer extension of time to respond to Jack's interrogatories and agreed in exchange to delay Jack's interrogatory response deadline even longer.

Sean and Jack persuaded the criminal court judge to reduce the conviction to a misdemeanor. Then Jack responded to general form interrogatory question 2.8, "No" becauase for all legal purposes, Jack had not been convicted of a felony once the Judge ordered the 17(b) reduction.  By avoiding this serious problem in the case, Sean was able to secure a fair and reasonable settlement. Had Jack been required to answer yes to question 2.8, it is likely the defendant would have refused to settle at all and the case would have been exceedingly risky to try before a jury.

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We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.

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