In the article below, our criminal defense attorneys1 explain the legal definition of a "misdemeanor" in California law.
What is a misdemeanor?
A misdemeanor is, by definition, a less serious offense than a felony. Overall, California classifies three types of crimes in descending order of severity:
- felonies (which are the most serious, punishable by imprisonment in the California state prison for a period of years),
- misdemeanors (which are punishable only by local county jail time, not more than one year), and
- infractions (such as traffic violations, also referred to as moving violations).2
Standard misdemeanor offenses
Standard California misdemeanors are offenses that are punishable by a maximum six-month county jail sentence and a maximum $1,000 fine.3
Examples of common standard misdemeanors include (but are not limited to):
- Petty theft, and
- Being "drunk in public."4
However, certain misdemeanor offenses specify a harsher penalty. There are sometimes called "gross misdemeanors" or "aggravated misdemeanors." When this is the case, the county jail sentence may increase to a maximum of one year and the fine may also increase.
Examples of these "aggravated" misdemeanors include (but are not limited to):
- the penalties imposed for first, second, and third-time driving under the influence offenses (punishable by up to one-year in a county jail and a maximum $1,000 fine),
- Penal Code 243(e)(1) California's domestic battery law (punishable by up to one year in a county jail and a maximum $2,000 fine), and
- Vehicle Code 14601.1(a) California's law against driving on a suspended license (punishable by up to one year in a county jail and a maximum $2,000 fine).5
And sometimes, misdemeanors may be prosecuted as either
- misdemeanors or felonies, or as
- misdemeanors or infractions.
When the prosecutor has the discretion to file the charge in one of two categories, the offense is referred to as a wobbler under California law.6 Whether the prosecutor files the charge as the greater or lesser offense will depend upon
- the facts of the case, and
- your criminal history.
Misdemeanor wobblers are punishable by up to one year in a county jail and a maximum $1,000 fine (unless otherwise specified). Examples of these offenses include
- Penal Code 417 PC California's brandishing a weapon law (punishable by up to one year in a county jail and a maximum $1,000 fine),
- Penal Code 368 PC California's elder abuse law (punishable by up to one year in a county jail and a maximum $6,000 fine), and
- Assault with a deadly weapon (punishable by up to one year in a county jail and a maximum $10,000 fine).7
Some misdemeanors wobblers may be alternatively charged as misdemeanors or infractions. Examples of these offenses include (but are not limited to):
- Disturbing the peace (punishable by a maximum 90-day county jail sentence and a maximum $400 fine), and
- Trespassing (punishable by up to six months and a maximum $1,000 fine).8
Misdemeanor probation sentences
California misdemeanor violations generally trigger a probation sentence. Under California's probation laws, the judge imposes a variety of conditions that you must adhere to in order to avoid (1) going to jail, or (2) returning to jail.
Many of these include (but are not limited to):
- community service or labor (such as CAL-TRANS roadside work),
- electronic monitoring or house arrest,
- participation in Counseling / treatment programs, and
- paying victim restitution.
Seeking relief from your misdemeanor conviction
As Ventura criminal defense attorney Darrell York9 explains, "Even if you have been convicted of a misdemeanor, you still may be able to clear your criminal record. California's expungement laws provide you with the opportunity to expunge your record...and the opportunity to put your past behind you".
We're here to not only help our clients fight their criminal charges but to help obtain post-conviction relief as well.
Call us for help.
If you or loved one is charged with a misdemeanor 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.
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 19 PC -- Punishment for misdemeanor; punishment not otherwise prescribed. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")
See also California Penal Code 19.2 PC -- Punishment for misdemeanor; maximum confinement. ("In no case shall any person sentenced to confinement in a county or city jail, or in a county or joint county penal farm, road camp, work camp, or other county adult detention facility, or committed to the sheriff for placement in any county adult detention facility, on conviction of a misdemeanor, or as a condition of probation upon conviction of either a felony or a misdemeanor, or upon commitment for civil contempt, or upon default in the payment of a fine upon conviction of either a felony or a misdemeanor, or for any reason except upon conviction of more than one offense when consecutive sentences have been imposed, be committed for a period in excess of one year; provided, however, that the time allowed on parole shall not be considered as a part of the period of confinement.")
4Punishment for Penal Code 484 PC California's petty theft / shoplifting law is addressed in Penal Code 490 PC. ("Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.")
See also Penal Code 647(f) California's drunk in public / public intoxication law. ("Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor.(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.")
See also California Penal Code 19 PC, endnote 3, above.
5California Vehicle Code sections 23536, 23540, and 23546 VC address the various penalties imposed for first, second, and third-time driving under the influence offenses.
Penal Code 243(e)(1) California's domestic battery law. ("(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fianc�, or fianc�e, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as defined in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution. (2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000). (B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence. (4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed.")
Vehicle Code 14601.1(a) California's law against driving on a revoked or suspended license. ("(a) No person shall drive a motor vehicle when his or her driving privilege is suspended or revoked for any reason other than those listed in Section 14601, 14601.2, or 14601.5, if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof. (b) Any person convicted under this section shall be punished as follows: (1) Upon a first conviction, by imprisonment in the county jail for not more than six months or by a fine of not less than three hundred dollars ($300) or more than one thousand dollars ($1,000), or by both that fine and imprisonment. (2) If the offense occurred within five years of a prior offense which resulted in a conviction of a violation of this section or Section 14601, 14601.2, or 14601.5, by imprisonment in the county jail for not less than five days or more than one year and by a fine of not less than five hundred dollars ($500) or more than two thousand dollars ($2,000). (c) Nothing in this section prohibits a person from driving a motor vehicle, which is owned or utilized by the person's employer, during the course of employment on private property which is owned or utilized by the employer, except an offstreet parking facility as defined in subdivision (d) of Section 12500. (d) When the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of this section in satisfaction of, or as a substitute for, an original charge of a violation of Section 14601.2, and the court accepts that plea, except, in the interest of justice, when the court finds it would be inappropriate, the court shall, pursuant to Section 23575, require the person convicted, in addition to any other requirements, to install a certified ignition interlock device on any vehicle that the person owns or operates for a period not to exceed three years. (e) This section also applies to the operation of an off-highway motor vehicle on those lands to which the Chappie-Z'berg Off-Highway Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section 38000)) applies as to off-highway motor vehicles, as described in Section 38001.")
6California Penal Code 17(b) PC -- Felony; misdemeanor; infraction; classification of offenses. ("(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.")
7Penal Code 417 PC California's brandishing a weapon law. ("(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.")
Penal Code 368 PC California's elder abuse law. ("(b)(1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.")
Penal Code 245(a)(1) California's assault with a deadly weapon law. ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")
8Penal Code 415 PC California's disturbing the peace law. ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")
Penal Code 602 PC California's trespass law lists a variety of ways to violate this law. It begins by stating that any violation is a misdemeanor which, according to Penal Code 19, endnote 3, above, means a maximum six-month county jail sentence and a maximum $1,000 fine.
9Ventura criminal defense attorney Darrell York uses his former experience as a Glendale Police Officer to represent clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.