“Misdemeanors” in California – 9 Key Things to Know

In California, misdemeanor crimes carry up to 364 days in county jail and $1,000 in fines. A misdemeanor is more serious than an infraction but less serious than a felony.

Here are five key things to know about misdemeanors in California:

1. Standard misdemeanors carry up to six months in and/or up to $1,000 in fines.
2. Gross or aggravated misdemeanors carry up to 364 days in jail and/or up to $1,000.
3. Most defendants facing misdemeanor charges are eligible for probation.
4. If you successfully complete a diversion program, the case will be dismissed.
5. Wobblers are crimes the prosecutor can charge as a misdemeanor or a felony.

This chart illustrates the difference between misdemeanors and felonies:

Here at Shouse Law Group, we have represented literally thousands of people charged with misdemeanors. In nearly all cases, we can get the charges dismissed through a diversion program, probation, or negotiation without ever having to go to trial.

Our California criminal defense lawyers discuss the following key topics re. misdemeanors:

• 1. Penalties
• 2. Common Crimes
• 3. Wobblers
• 4. Arrests
• 5. Probation
• 6. Criminal Record
• 7. Expungement
• 8. Immigration Consequences
• 9. Gun Rights
• Additional reading

1. Penalties

The worst-case penalties for California misdemeanors are:

• 6 months in jail (for standard misdemeanors) or 364 days in jail (for gross/aggravated misdemeanors); and
• $1,000 in fines (plus court costs) or more in some cases.¹

Note that in Los Angeles County, courts must impose sentences on the low end of the penalty range absent extraordinary circumstances.²

You may sometimes read that a misdemeanor can be punished by “up to one year” in the jail, though this is technically incorrect in California: As of January 1, 2015, the maximum sentence is 364 days, which is one day shy of a year.³

We explain some of the differences between a felony offense and a misdemeanor here.

2. Common Crimes

Some of the most common California misdemeanor cases we see include:

• Drug possession,
• Drunk in public,
• DUI first,
• Indecent exposure,
• Petty theft,
• Prostitution,
• Shoplifting, and
• Trespassing.

The most common gross/aggravated misdemeanors cases we handle include:

• Domestic battery,
• Driving on a suspended driver’s license,
• DUI second and,
• Violating a restraining order.

There are no unclassified misdemeanors in California criminal law.

3. Wobblers

In California, wobblers are crimes that prosecutors can charge as either misdemeanors or felonies depending on your criminal history and the facts of the case.⁴ Examples of wobblers include:

• Brandishing a weapon,
• Elder abuse, and
• Assault with a deadly weapon.

Certain felony sentences can be served in county jail as opposed to state prison. However, all misdemeanor sentences are served in county jail rather than prison.

In some cases, we can conduct a “prefile intervention” where we contact the prosecutors ahead of time and try to persuade them against bringing felony charges. If we can show their evidence is weak, we may be able to persuade them to drop the entire case.

Note that California law also has “wobblettes” which are offenses that can be charged as either misdemeanors or infractions (which are civil and therefore carry no jail). Examples of wobblettes include:

• Disturbing the peace/disorderly conduct and
• Trespassing.

Most misdemeanor cases never proceed to trial.

4. Arrests

Misdemeanor cases in California can proceed through various stages of the criminal court process in the following order:

1. Arrest by law enforcement;
2. Arraignment (formal charging and plea);
3. Bail hearing;
4. Pretrial phase (including discovery and motions to dismiss or suppress evidence);
5. Jury trial or bench trial; and
6. Appeal.

In our experience, most cases will not go through all of these steps. A case can be dropped at any stage if the evidence is weak, or else the prosecution and you can agree to a plea bargain.

5. Probation

Nearly all of our clients facing misdemeanor convictions are eligible for probation in California with no jail time. Sometimes, misdemeanor probation is referred to as:

• Summary probation, or
• Informal probation.

Misdemeanor probation typically lasts for 364 days unless the crime statute specifies otherwise. During that time, you must adhere to certain conditions in order to stay out of jail.

Conditions of probation can include (without limitation):

• Community service or labor (such as CAL-TRANS roadside work),
• Electronic monitoring or house arrest,
• Participation in counseling or treatment programs, and/or
• Paying victim restitution.

Note that in Los Angeles County, courts must grant probation in probation-eligible cases absent extraordinary circumstances.⁵

6. Criminal Record

In California, a misdemeanor charge results in a criminal record when you:

• Plead guilty,
• Plead “no contest,” or
• Are found guilty at trial.

An exception is when you participate in and successfully complete:

• PC 1000 drug diversion or
• Prop 36 drug diversion.

Thousands of our clients have successfully completed diversion. As soon as the program ends, the judge dismisses the charges, and there will be no conviction on your record.

Misdemeanor offenses are the least serious criminal charges. .

7. Expungement

California law permits the expungement of most misdemeanor crimes. The exception is a misdemeanor sex crime against a child – such as certain counts of statutory rape.

To be eligible to expunge a misdemeanor, you:

• Must have successfully completed probation and
• Must not currently be charged with, on probation for, or serving a sentence for a criminal offense.

If asked about criminal history on a job application or in an interview, you do not need to disclose an expunged conviction.

You may also wish to read our article on “Criminal Convictions and Job Applications in California.”

8. Immigration Consequences

We have represented countless visa- and green card holders facing criminal charges. From what we have seen, most misdemeanors do not lead to deportation for non-citizens unless they involve:

• Drugs,
• Firearms, or
• Domestic violence.

Under U.S. law, you are subject to deportation if within five years of admission to the U.S you commit a crime that:

• Involves moral turpitude and
• Carries a potential sentence of 1 year or more.⁶
  

As of January 1, 2015, the maximum punishment for a misdemeanor in California is 364 days.⁷ Because this is less than one year, a conviction on a single California misdemeanor no longer subjects you to deportation for a crime of moral turpitude.

9. Gun Rights

California imposes a 10-year firearm ban if you get convicted of one of about 40 misdemeanors, such as:

• Assault,
• Battery,
• Brandishing a weapon, or
• Making criminal threats.

Meanwhile, you face a lifelong firearm ban for a misdemeanor domestic violence conviction or a second-time conviction of brandishing a firearm.⁸

Learn more about California gun laws.

There are two classes of misdemeanors: Standard and gross/aggravated.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Criminal Law: Punishment: Misdemeanors: Statutory Construction – California Law Review.
• Three Strikes and You’re in (For Life): An Analysis of the California Three Strikes Law as Applied to Convictions for Misdemeanor Conduct – Thomas Jefferson Law Review.
• Misdemeanors – California Law Review.
• Misdemeanors by the Numbers – Boston College Law Review.
• Crashing the Misdemeanor System – Washington & Lee Law Review.

Legal references: