Legal definition of a "Felony" in California law

In the article below, our California criminal defense attorneys1 explain the legal definition of a "felony" under California law.

What is a felony?

California law classifies three types of crimes:

  1. felonies,
  2. misdemeanors, and
  3. infractions.2

Felonies are the most serious California offenses. They are punishable by death or imprisonment in the California state prison.3

Straight felonies

Many felony offenses are straight felonies. A "straight" felony is one that can only be charged and sentenced as a felony. Straight felonies include some of the most severe California crimes. Examples include (but are by no means limited to):

  • Possession for sale of a controlled substance,4
  • Murder,5 and
  • Rape.6

Many times, felony offenses will designate a specific sentence. For example, if you are convicted of Penal Code 92 PC California's law against bribing a judge or judicial officer, the penalty states that you face imprisonment in the state prison for two, three, or four years.7

Other times, a felony will state that the offense is punishable "by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year". When this is the case, the offense is what's known as a wobbler.

Wobblers

A "wobbler" is a crime that the prosecutor may elect to file as either a California misdemeanor or a felony, based on

  1. the facts of the case, and
  2. your criminal history.8

When charged as a felony, the offense is typically punishable by 16 months, or two or three years in the state prison and a maximum $10,000 fine.9

Examples of wobblers include (but are not limited to):

  • Forgery,10 and
  • Inflicting corporal injury on a spouse or cohabitant.11
Felony probation / parole

When you are convicted of a felony under California law, you will most likely either be placed on

  • formal (felony) probation at the time of sentencing, or
  • parole following your release from prison.

California's probation laws are designed to ensure that you adhere to all court-imposed conditions following your sentence. These may include checking in on a regular basis with your probation officer, attending regular counseling / therapy meetings, and obeying all laws.

California parole laws are similar, but do not take effect until you have been released from the state prison. Both probation and parole are supervisory programs that are intended to help you lead a law-abiding life.

Seeking relief from your felony conviction

As Orange County criminal defense attorney Zachary McCready12 explains, "Even if you have been convicted of a California felony, you still may be able to expunge your criminal record." Depending on

  1. the specific offense for which you were convicted, and
  2. whether you were convicted of a straight felony or of a felony wobbler,

will dictate what relief you may be entitled to. Options include

Our team of skilled California criminal defense lawyers not only specializes in defending criminal cases, but also in securing post-conviction relief.

Call us for help.
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If you or loved one is charged with a felony and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. 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 and throughout California.

You may also find helpful information in our related articles on California Misdemeanors; Wobblers; California Probation Laws; California Parole Laws; Clearing Your California Criminal Record; Reducing Your Felony Conviction to a Misdemeanor; California Expungement Law; Certificates of Rehabilitation; and Governor's Pardons.

We also invite you to read our article on the consequences and effects of a felony conviction in California.

For information about Nevada felony law, go to our page on Nevada felony law.

Legal References:

1Our California criminal defense lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Contact us at Shouse Law Group to find out how we can help you successfully fight your California felony charges.

2California Penal Code 16 PC -- Crimes; kinds. ("Crimes and public offenses include: 1. Felonies; 2. Misdemeanors; and 3. Infractions.)

3California Penal Code 17 PC -- Felony; misdemeanor; infraction; classification of offenses. ("(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint. (c) When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from the Youth Authority, thereafter be deemed a misdemeanor for all purposes. (d) A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint. (e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.")

4Health and Safety 11351 HS California's "possession of a controlled substance for sale" law. ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished [as a California felony] by imprisonment in the state prison for two, three, or four years.")

5Penal Code 187 PC California's murder law. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply: (1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code. (2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus. (c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.")

6Penal Code 261 PC California's rape law. ("(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.")

7Penal Code 92 PC California's law against bribing a judge or judicial officer. ("Every person who gives or offers to give a bribe to any judicial officer, juror, referee, arbitrator, or umpire, or to any person who may be authorized by law to hear or determine any question or controversy, with intent to influence his vote, opinion, or decision upon any matter or question which is or may be brought before him for decision, is punishable by imprisonment in the state prison for two, three or four years [as a California felony].")

8See California Penal Code 17(b), endnote 3, above.

9California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("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 ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

10The punishment for Penal Code 470 PC California's forgery law is addressed under Penal Code 473 PC. ("Forgery is punishable [as a California felony by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.")

11Penal Code 273.5 PC - California's law against inflicting corporal injury on a spouse / mate. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, 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.")

This is why we say that felony wobblers "typically" are punishable by up to 16 months, or two or three years in the state prison. There are some offenses, such as this one, that specify a different felony punishment.

12Orange County criminal defense attorney Zachary McCready defends clients throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Tustin, Irvine and Westminster.

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