California Misdemeanor Sentencing Guidelines – How It Works

Posted on March 29, 2022

California misdemeanor offenses are punishable by custody in county jail for a maximum term of between six months and 364 days, depending on whether the crime is a standard misdemeanor or an aggravated misdemeanor.

These offenses can also result in the imposition of fines and/or misdemeanor (or summary) probation (with conditions such as restitution, community service, and participation in counseling or treatment programs). Misdemeanor crimes in California are

• more serious than infractions but
• less serious than felony offenses.

In general, aggravated misdemeanors result in harsher sentences than standard misdemeanors. Examples of an aggravated misdemeanor include:

• domestic battery — Penal Code 243e1 PC,
• driving on a suspended license — Vehicle Code 14601 VC,
• DUI without injury — Vehicle Code 23152a and b VC, and
• violating a restraining order — Penal Code 273.6 PC.

A few common standard misdemeanors include,

• shoplifting – Penal Code 459.5 PC,
• drug possession — Health and Safety Code 11350 HS,
• trespassing – Penal Code 602 PC, and
• petty theft — Penal Code 484.

Note that some criminal offenses in California are wobblers. Wobblers are crimes that a prosecutor can charge as either:

• a misdemeanor or an infraction, or
• a misdemeanor or a felony.

Prosecutors often make the decision as to which type of offense to file by examining:

• the facts of the case, and
• a defendant’s criminal history.

1. What are the possible sentences for a California misdemeanor?

The specific penalties imposed for a California misdemeanor will typically vary depending on whether the crime is a standard misdemeanor or an aggravated misdemeanor.

Standard misdemeanors are offenses that are usually punishable by a maximum of:

• six months in county jail time (as opposed to a state prison sentence), and /or
• a fine of up to $1,000.¹

The penalties for these misdemeanors are often not set forth in the specific statute corresponding to a particular crime. Rather, California Penal Code 19 PC provides the general guidelines for standard misdemeanor sentences.²

Under California law, the consequences for an aggravated or gross misdemeanor conviction can include:

• county jail sentences of up to 364 days, and/or
• fines of up to $1,000 or more.

Unlike with standard misdemeanors, the statutes that set forth each gross misdemeanors usually provide for the maximum sentence that a judge may impose for these offenses.³

Note that judges will normally not award a sentence near the maximum range authorized by law unless a defendant:

• has a criminal history or criminal record which includes prior convictions,
• committed a crime with a weapon (like a deadly weapon), and/or
• caused a “victim” to suffer a serious injury.

In contrast to misdemeanor crimes, felony sentences often include prison time of up to three years (or even longer with the most severe felony charges), and/or substantial fines.⁴

Felony convictions can grow much more serious when it comes to sentences when compared to misdemeanor convictions.

2. Can a person get probation for a misdemeanor?

Yes. In lieu of jail time or a fine, judges may sentence misdemeanor offenders in California criminal cases to misdemeanor probation.⁵

Misdemeanor probation is sometimes referred to as “summary” or “informal” probation.

Misdemeanor probation typically lasts for one year unless a crime’s statute specifies otherwise. During that time, the defendant must adhere to certain conditions in order to stay out of jail.

Common conditions of probation in misdemeanor cases can include (without limitation):

• community service or labor,
• electronic monitoring or house arrest,
• participation in counseling/treatment programs, and /or
• paying victim restitution.⁶

Note that if a person commits a probation violation, the sentencing judge can:

• ignore the violation,
• impose harsher probation conditions, or
• revoke probation and force the probationer to serve out any remaining jail time for his/her offense.⁷

3. What are wobblers under California’s criminal laws?

Some California offenses are charged as wobblers. A prosecutor can charge a wobbler as either:

• a misdemeanor or a felony, or
• a misdemeanor or an infraction.

How the prosecutor chooses to charge a wobbler offense depends on:

• the facts of the case, and/or
• the defendant’s criminal history, if any.⁸

A common misdemeanor/felony wobbler crime is brandishing a weapon — Penal Code 417.

A common misdemeanor/infraction wobbler crime is disturbing the peace — Penal Code 415.

4. Can a person get an expungement for a California misdemeanor?

California law permits expungement of most misdemeanor crimes. The exception is for certain misdemeanor sex offenders (like those that commit statutory rape, California Penal Code 261.5 PC).

To be eligible to expunge a California misdemeanor, the defendant:

• must have successfully completed probation, and
• must not currently be charged with, on probation for, or serving a sentence for a criminal offense.⁹

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

Note that people convicted of a misdemeanor crime should consult with an experienced criminal defense attorney on the issue of expungement. A criminal defense lawyer can advise a client on whether an expungement is truly available for his/her criminal charges.

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