Legal definition of a "Felony" in California law

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California law places unlawful acts into three categories:

Of the three, felonies are the most serious.

In California, a felony is an offense with a maximum sentence (whether in county jail or state prison) of more than one year. In some cases, a felony conviction can even be punished by death.2

People convicted of California felonies may be ordered to a pay fine of up to $10,000 in addition to -- or instead of -- imprisonment.

Alternatively, they may be sentenced to California formal (felony) probation. If you are granted probation for a felony, you will serve, at most, one year in county jail.

There are also serious collateral consequences to a California felony conviction. These include, among others, that:

  • You must disclose the conviction, if asked, on a job application, and
  • You may not own a gun in California for 10 years or for life.
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We are firm of lawyers that includes former prosecutors and cops. We have seen firsthand the effect a felony conviction has on someone's life.

To help you understand the definition and consequences of a California felony, our criminal defense attorneys discuss the following, below:

  1. Straight felonies

  2. Wobbler offenses

  3. Punishment for felony offenses

    1. Imprisonment

    2. Fines

    3. Alternative sentences / probation

  4. Parole

  5. Collateral consequences of a California felony conviction

  6. Expunging a California felony

You may find additional helpful information in our articles on: The Legal Definition of a Misdemeanor in California; The Legal Definition of an Infraction in California; California Felony Sentencing; Consequences of a California Felony Conviction; How to Restore Your California Gun Rights; Expungement of Criminal Records in California; Early Termination of Probation in California; Felony (Formal) Probation in California; Sentencing Hearings in California; and Realignment (AB 109) in California.

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1. Straight felonies

A "straight" felony is one that can be charged and sentenced only as a felony. It cannot be reduced to a misdemeanor.

Example: The California Penal Code defines first degree burglary as burglary of an inhabited house or dwelling structure.3 First degree burglary is always a felony. It is, therefore, a “straight” felony.

Straight felonies include most serious California crimes. Though not by any means a complete list, some further examples are:

2. Wobbler offenses

Some crimes may be charged as either a felony or a misdemeanor, in the prosecutor's discretion.4 These are known as “wobbler” offenses.5

Factors a prosecutor will consider when deciding whether to charge a wobbler as a felony or a misdemeanor include:

  • The specific facts of the case, and
  • Your criminal history (if any)

Example: Burglary of uninhabited and commercial structures is considered second degree burglary.6 Second degree burglary is a wobbler offense. It can be punished by:

  • imprisonment in the county jail as a misdemeanor or
  • imprisonment as a felony pursuant California Penal Code 1170(h).7

Penal Code 1170(h) PC is a catchall provision for felony sentencing. Anytime you see a reference to Penal Code 1170(h), it means that a crime is -- or can be charged as -- a felony.

Other examples of “wobbler” offenses include (but are not limited to):

3. Punishment for felony offenses

3.1 Imprisonment

Felonies are usually punished by imprisonment for one of three terms:

  • a low term,
  • a middle term, or
  • a high term.

Generally, you will receive the middle term unless there are factors in aggravation or mitigation of your California felony crime.11

If there are aggravating factors -- such as “you used a weapon” or “the crime involved extreme violence” -- you can be sentenced to the high term.

If there are mitigating factors -- such your participation in the crime was minimal -- the judge might decide that the low term is more appropriate.

Many criminal statutes specifically set forth all three possible terms. They also often state whether the sentence is to be served in:

  • California state prison, or
  • county jail.

Example: California Penal Code 461(a) PC provides that first degree burglary is to be punished by a California state prison term of:

  • two years,
  • four years, or
  • six years.12

Compare this with California Health and Safety Code 11360, the sale of marijuana. That statutes provides for a county jail term of:

  • two years,
  • three years, or
  • four years.13

Sometimes a felony statute does not set forth specific terms of imprisonment. It may be silent entirely, or simply state that the offense may be punished pursuant to California Penal Code 1170(h) PC.

In either case, where no specific term is stated, the length of the imprisonment is:

  • 16 months,
  • two years, or
  • three years.

If the statute says the offense is punishable under California Penal Code 1170(h), the applicable term will be served in county jail.14 Otherwise, if the statute is completely silent, such term will be served in California state prison.15

3.2 Fines

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Punishment for a California felony can include a fine. Sometimes the fine is set forth in the statute defining the crime. Where a monetary amount is not specified, it is:

  • A fine of up to $10,000.16

This fine can be either in addition to -- or instead of -- time in jail.17

3.3 Alternative sentences / probation

Judges have the discretion to convert all or part of your sentence to California formal (felony) probation. If you are granted probation, the judge can sentence you to up to one year in county jail. In practice, however, people often get sentenced to little or even no actual jail time.

Probation is a supervisory program. It is designed to help you lead a law-abiding life.

Probation generally lasts for three years (but can last as long as five). During that time, you will be required to comply with certain conditions. These may include, among others:

  • Monthly meetings with a probation officer,
  • Payment of restitution,18
  • Individual or group therapy,
  • Drug testing (if your felony involved a California drug crime),
  • Community service or labor, and/or
  • Searches of your person or property with or without a warrant.

If you violate any of your probation conditions, the judge can revoke your probation. If your probation is revoked, you can be sent to prison or jail for up to the maximum sentence for the crime.

4. Parole

California parole laws are similar to probation laws. However, they only apply when:

  1. you were sentenced to California state prison, and
  2. you have served out your sentence or been granted early release.

If you violate the terms of your parole, your California parole can be revoked. If your parole is revoked, you can be sent back to prison.

5. Collateral consequences of a California felony conviction

A California felony conviction carries numerous collateral consequences. Some of the most important are:

For a more complete listing of consequences, please see our article on the Collateral Consequences of a California Felony Conviction, referenced above.

6. Expunging a California felony

As long as you were not sentenced to California state prison or convicted of certain sex offenses or violent crimes, it may be possible to get your California felony expunged.

An expungement is not a complete “erasure” of your conviction. However, it does relieve you of some of the consequences of a felony conviction -- including (sometimes) the ban on gun ownership and the requirement to disclose the conviction on most job applications.

As Riverside criminal defense attorney Michael Scaffidi19 explains:

"Being convicted of a California felony doesn't have to mean the end of your civil rights. A skilled criminal defense attorney has several ways to help relieve a client of the stigma and restrictions that come with a California felony conviction.”

For more information on expungements, please see our article, Expungement of Criminal Records in California.

Call us for help.

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To learn more about California felonies, or to discuss your case confidentially, we invite you to contact us at Shouse Law Group for a free in-person or telephone consultation. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose, the Central Valley, and other cities throughout California.

Please contact our defense Las Vegas Nevada criminal lawyers regarding felony laws in Nevada.

Legal References:

1 California Penal Code 16 PC: Crimes and public offenses include: 1. Felonies; 2. Misdemeanors; and 3. Infractions.

2 California Penal Code 17(a) PC: A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

3 California Penal Code 460 PC.  (a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.

4 See California Penal Code 17(b) PC.

5 The term “wobbler” may also be used to refer to offenses that can be charged as either a misdemeanor or an infraction.

6 California Penal Code 460(b) PC, endnote 3.

7 California Penal Code 461 PC: Burglary is punishable as follows: …(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

See also California Penal Code 1170(h)(1): Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.

8 California Penal Code 473 PC: Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

9 California Penal Code 273.5(a) PC: Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

10 California Health and Safety Code 11357 (a) HS: Except as authorized by law, every person who possesses  any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

11 California Penal Code 1170(b) PC.

12 California Penal Code 461(a) PC.  Burglary is punishable as follows:  (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.

13 California Penal Code 11360(a) PC: Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

14 California Penal Code 1170(h) PC, endnote 7.

15 California Penal Code 18(a) PC: Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.

16 California Penal Code 672 PC.  Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or tenthousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.

17 Same.

See also California Penal Code 18(b) PC: Every offense which is prescribed by any law of the state to be a felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.

18 See California Penal Code 1202.4 PC.

19 San Bernardino / Riverside County criminal defense attorney Michael Scafiddi is a former police sergeant. He now uses his knowledge of law enforcement and the San Bernardino and Riverside courts to defend clients on a wide range of charges, from DUI and child abuse, to robbery and carjacking.

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