“Misdemeanor” Crimes in California – The Legal Definition

In California, a misdemeanor, by definition, is a criminal offense for which the maximum penalty is no more than 364 days in county jail and a fine of not more than $1000.00. A misdemeanor is more serious than an infraction but less serious than a felony.

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

Common examples of misdemeanors are

• DUI,
• shoplifting and
• domestic violence that does not result in a serious injury.

California misdemeanors fall into two basic categories:

1. Standard misdemeanors, punishable by up to 6 months in jail and/or a fine of up to $1,000; and
2. “Gross” or “aggravated” misdemeanors,” punishable by up to 364 days in jail and/or a fine of up to $1,000 or more.¹

There are also certain crimes known as California “wobbler” offenses. These are crimes that the prosecutor can choose to charge as a misdemeanor or a felony (or, in some cases, a misdemeanor or an infraction).

To help you better understand the law, our California criminal defense lawyers discuss:

• 1. What is the penalty for a misdemeanor in California?
  • 1.1. Punishment for a standard misdemeanor
  • 1.2. Punishment for an aggravated misdemeanor
• 2. What are some common misdemeanors in California?
• 3. What is a California “wobbler” offense?
  • 3.1. What are some common misdemeanor / felony wobblers?
  • 3.2. What are some common misdemeanor / infraction wobblers?
• 4. What is the process after a misdemeanor arrest?
• 5. Can I get probation for a misdemeanor?
• 6. Does a misdemeanor give you a criminal record?
• 7. Can you expunge a misdemeanor from your record in California?
• 8. Can a misdemeanor conviction lead to deportation?

As of January 1, 2015, the maximum jail sentence for a California misdemeanor is 364 days.

1. What is the penalty for a misdemeanor in California?

California misdemeanors fall into two general categories:

• Standard misdemeanors, and
• “Gross” or “aggravated” misdemeanors.

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

1.1. Punishment for a standard misdemeanor

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

• 6 months in county jail, and /or
• A fine of up to $1,000.

1.2. Punishment for a “gross” or “aggravated” misdemeanor

Certain misdemeanor offenses are considered more serious than others. These are known as

• “gross misdemeanors” or
• “aggravated misdemeanors.”

In California, the consequences of a gross misdemeanor conviction can include:

• Up to 364 days in county jail, and/or
• A fine of up to $1,000 or more.

You may sometimes read that a misdemeanor can be punished by “up to 1 year” in the county jail.

But as of January 1, 2015, the maximum sentence for a California misdemeanor is 364 days.³ As discussed in Section 7, below, this prevents a misdemeanor crime involving moral turpitude from being a “deportable offense” under U.S. law.

In this article, we use the terms “up to 364 days” and “up to 1 year” interchangeably. Also see our article on California misdemeanor sentencing guidelines.

2. What are some common misdemeanors in California?

Common standard misdemeanors include (but are not limited to):

• Drug possession — California Health and Safety Code 11350 HS,
• Drunk in public — Penal Code 647(f) PC,
• Indecent Exposure (1st offense) — Penal Code 314 PC,
• Petty theft — Penal Code 484,
• Prostitution — Penal Code 647(b),
• Shoplifting — Penal Code 459.5 PC, and
• Trespassing (some charges)– Penal Code 602 PC.

Common “aggravated” misdemeanors include (but are not limited to):

• Domestic battery — Penal Code 243(e)(1),
• Driving on a suspended license — Vehicle Code 14601 VC,
• DUI without injury — Vehicle Code 23152(a) and(b), and
• Violating a restraining order — Penal Code 273.6 PC.

Shoplifting is a misdemeanor in California criminal law.

3. What is a California “wobbler” offense?

Some California offenses can be charged either more or less seriously, at the prosecutor’s discretion.

These so-called “wobbler” offenses fall into two categories:

1. Misdemeanor / felony wobblers, and
2. Misdemeanor / infraction wobblers.

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

• The facts of the case, and/or
• Your criminal history, if any.⁴

3.1. What are some common misdemeanor / felony wobblers?

Common misdemeanor / felony “wobbler” crimes in California include (but are not limited to):

• Brandishing a weapon — Penal Code 417 (punishable as a misdemeanor by up to 1-year jail sentence and/or up to a $1,000 fine),
• Elder abuse — Penal Code 368 (punishable as a misdemeanor by up to 1 year in jail and/or up to a $6,000 fine), and
• Assault with a deadly weapon — Penal Code 245(a)(1) (punishable as a misdemeanor by up to 1 year in jail and/or up to a $10,000 fine).

3.2. What are some common misdemeanor / infraction wobblers?

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

• Disturbing the peace — Penal Code 415 (punishable as a misdemeanor by up to 90 days in jail and/or up to a $400 fine), and
• Wobbler trespassing (punishable as a misdemeanor by up to 6 months in jail and/or up to a $1,000 fine).

A case can be dropped at any stage if the evidence is weak or the court grants a motion to suppress evidence.

4. What is the process after a misdemeanor arrest?

Misdemeanor cases in California can proceed through various stages in the following order:

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

Most misdemeanor cases will not go through all of these steps. A case can be dropped at any stage if the evidence is weak or the court grants a motion to suppress evidence. Or the prosecution and you can agree to a plea bargain in California.

For more information about each of these stages, please see our article on “California’s Criminal Court Process.”

5. Can I get probation for a misdemeanor?

Misdemeanor violations are often punished with misdemeanor probation in California. Sometimes, misdemeanor probation is referred to as

• summary probation, or
• informal probation.

Misdemeanor probation typically lasts for 1 year 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 / treatment programs, and /or
• Paying victim restitution.

Having an experienced criminal defense lawyer on your side can greatly improve your chances of receiving probation instead of jail time.

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

6. Does a misdemeanor give you a criminal record?

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

• California PC 1000 Drug Diversion or
• Prop 36 drug diversion.

If you successfully complete diversion, the judge will dismiss the charges and there will be no conviction.

Otherwise, a conviction stays on your criminal record unless and until it is sealed or expunged.

7. Can you expunge a misdemeanor from your record in California?

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, California Penal Code 261.5 PC.

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.

To learn more about how to expunge a misdemeanor, please see our article on “Penal Code 1203.4 PC, Expungement of Criminal Records in California.”

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

8. Can a misdemeanor conviction lead to deportation?

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 1 year, a conviction on a single California misdemeanor no longer subjects you to deportation for a crime of moral turpitude.

For more information, please see our article “California Crimes that Can Lead to Deportation.”

For additional help…

Contact us for a free consultation and legal help for your criminal charges.

Our criminal defense attorneys can also help you expunge a California misdemeanor conviction or petition to have a felony reduced to a misdemeanor.

We create attorney-client relationships throughout California, including in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, and San Jose

We also have offices in Nevada and Colorado to serve your needs in those states. For more information please visit our pages on Nevada misdemeanors or Colorado misdemeanors.

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