In California law, a misdemeanor is defined as a crime for which the maximum sentence is no more than one year in county jail. A misdemeanor is more serious than an infraction but less serious than a California felony. Common examples are DUI, shoplifting and domestic violence that does not result in serious injury.
California misdemeanors fall into two basic categories:
- “Standard” California misdemeanors, punishable by up to 6 months in jail and/or a fine of up to $1,000;1and
- “Gross” or “aggravated” misdemeanors,” punishable by up to 364 days in jail and/or a fine of up to $1,000 or more.2
There are also certain crimes known as California “wobbler” offenses. These are crimes which 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 California misdemeanors, our California criminal defense lawyers discuss, below:
- 1. What is the penalty for a misdemeanor in California?
- 2. What are some common misdemeanors in California?
- 3. What is a California “wobbler” offense?
- 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?
California misdemeanors fall into two general categories:
- Standard misdemeanors, and
- “Gross” or “aggravated” misdemeanors.
Standard California 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.
Certain California misdemeanor offenses are considered more serious than others. These are known as “gross misdemeanors” or “aggravated misdemeanors.”
In California, 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.
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.
Some California offenses can be charged either more or less seriously, in the prosecutor’s discretion.
These so-called California “wobbler” offenses fall into two categories:
- Misdemeanor / felony wobblers, and
- Misdemeanor / infraction wobblers.
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.4
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).
Examples of California 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).
Misdemeanor cases in California can proceed through various stages in the following order:
- Arraignment (formal charging and plea);
- Bail hearing;
- Pretrial phase (including discovery and motions to dismiss or exclude evidence);
- Jury trial or bench trial; and
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 the defense 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.”
Misdemeanor violations are often punished with misdemeanor probation in California. Misdemeanor probation is sometimes referred to as “summary,” or “informal” probation.
Misdemeanor probation typically lasts for 1 – 3 years. During that time, the defendant 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 California criminal lawyer on your side can greatly improve your chances of receiving probation instead of jail time.
A misdemeanor charge results in a criminal record when:
- The defendant pleads guilty;
- The defendant pleads “no contest”; or
- The defendant is found guilty at trial.
If the defendant successfully completes diversion, the judge will dismiss the charges and there will be no conviction.
Otherwise, a conviction stays on the defendant’s criminal record unless and until it is sealed or expunged.
California law permits 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 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.
If asked about criminal history on a job application or in an interview, the defendant does not need to disclose an expunged conviction.
To learn more 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.”
Most misdemeanors do not lead to deportation unless they involve:
- Firearms, or
- Domestic violence.
Under U.S. law, non- citizens are subject to deportation if within five years of admission to the U.S they commit a crime that:
- Involves “moral turpitude,” and
- Carries a potential sentence of 1 year or more.5
As of January 1, 2015, the maximum punishment for a misdemeanor in California is 364 days.6 Because this is less than 1 year, conviction on a single California misdemeanor no longer subjects someone to deportation for a crime of moral turpitude.
For more information, please see our article “California Crimes that Can Lead to Deportation.”
Charged with a CA misdemeanor? Call us for help…
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