- the specific facts of the case, and
- the defendant's criminal history.1
If the facts of your case are severe -- and/or you have a criminal history that justifies a harsh punishment -- prosecutors will likely charge you with a felony. Conversely, if this is your first offense -- and/or there are mitigating facts that can excuse or reduce some of your criminal culpability -- prosecutors may be more likely to charge you with a misdemeanor.
There are a wide variety of California offenses that qualify as wobblers. Some examples include (but are not limited to):
- Penal Code 459 PC California's burglary law,2
- Penal Code 245(a)(1) PC California's "assault with a deadly weapon" (ADW) law,3
- Penal Code 273.5 PC California's spousal battery law,4
- many California sex crimes (including Penal Code 243.4 PC sexual battery5 and Penal Code 288 PC lewd acts with a minor6), and
- many California fraud charges.7
Why classification as a wobbler is important
There are certain rights and privileges that are revoked when you are convicted of a felony. As long as your offense remains a misdemeanor, you will preserve some of these rights (such as the right to own or possess firearms under Penal Code 29800 PC California's felon with a firearm law).8
And, in the unfortunate event, you are charged with a wobbler felony, you can later petition the court to have your felony conviction reduced to a misdemeanor. This relief isn't available for "straight" felonies.that is, felonies that are not classified as wobblers. For more information on the benefits of felony reductions, please review our article on Reducing Felony Convictions to Misdemeanors.
The bottom line is that if you've been charged with a wobbler, our team of experienced California criminal defense attorneys9 know the most effective arguments for convicting prosecutors and judges to minimize your potential penalties by charging you with a misdemeanor instead of a felony.
Call us for help.
If you or loved one is charged with a wobbler 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.
In Nevada some crimes may be either a felony or a gross misdemeanor. Learn more about wobblers in Nevada.
1California Penal Code 17 PC -- 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 [which is, by definition, a wobbler], 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.")
2Penal Code 459 PC California's burglary law. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store.with intent to commit grand or petit larceny or any felony is guilty of burglary.")
See also Penal Code 461 PC -- Punishment. ("Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.")
3Penal Code 245(a)(1) PC California's "assault with a deadly weapon" (ADW) 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.")
4Penal Code 273.5 PC California's spousal battery law. ("(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.")
5Penal Code 243.4 PC sexual battery (one of California's sex crimes). ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).")
6Penal Code 288 PC lewd acts with a minor. ("(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.")
7Most California fraud charges, including forgery, embezzlement, and elder abuse are wobblers.
8Penal Code 29800 PC California's felon with a firearm law. ("("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. (2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. (b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 12001.6, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. (c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section 26100, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.")
9Our California criminal defense attorneys 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.