A “wobbler” is a crime that can be punished as either a felony or a misdemeanor in California.1 In most cases, it is the prosecutor who decides whether to charge a wobbler as a felony or a misdemeanor.
But judges can also decide to punish a wobbler as a misdemeanor. And even if the defendant is convicted of a wobbler felony, he or she may be able to file a petition to reduce a felony conviction to a misdemeanor.2
What crimes are wobblers in California?
Hundreds of California offenses qualify as wobblers. These include many:
In addition, there are a handful of crimes that “wobble” between a misdemeanor and a non-criminal infraction.3 These so-called “wobblette” offenses include:
- Penal Code 415, disturbing the peace,
- Penal Code 602, criminal trespass, and
- Many California Vehicle Code violations.
Common California “wobbler” offenses
Some of the most common California wobbler crimes include:
- Penal Code 192(c)(1) and (2), vehicular manslaughter,
- Penal Code 243.4 sexual battery
- Penal Code 245(a)(1), assault with a deadly weapon (ADW)
- Penal Code 261.5, “statutory rape”
- Penal Code 271, child endangerment
- Penal Code 273.5, spousal battery,
- Penal Code 288, lewd acts with a minor,
- Penal Code 422, making criminal threats,
- Penal Code 459, burglary,
- Penal Code 470, forgery,
- Penal Code 487, grand theft,
- Penal Code 646.9(a), stalking, and
- Penal Code 25850(a), carrying a loaded firearm in public.
Common California “wobblette” offenses include:
- Penal Code 415, disturbing the peace,
- Penal Code 602, criminal trespass,
- Vehicle Code 23109, exhibition of speed,
- Vehicle Code 12500, driving without a license
- Vehicle Code 14601.1, driving with a suspended or revoked license, and
- Vehicle Code 40508, failure to appear for a traffic violation.
To help you better understand “wobbler” offenses, our California criminal defense lawyers discuss, below:
- 1. What is a California “wobbler” offense?
- 2. When can a “wobbler” be reduced from a felony to a misdemeanor?
- 3. How does a prosecutor decide how to charge a crime?
- 4. When can a judge reduce a felony to a misdemeanor?
- 5. Disadvantages of a felony conviction
- 6. How to get a wobbler conviction expunged
- 7. California misdemeanor/infraction “wobblettes”
1. What is a California “wobbler” offense?
A “wobbler” is a crime that can be punished as either a California felony or a California misdemeanor. Usually, the choice is made by the prosecutor at the time of charging the offense.
The choice is important because California law recognizes three categories of offenses. From most to least serious they are:
- Misdemeanors, and
- Infractions. 4
Some crimes can only be punished as a felony. These are known as “straight felonies.”
But California law allows prosecutors and judges to charge some crimes as either a felony or a misdemeanor.5 These are the so-called “wobbler” crimes. They are also known “alternative felony/misdemeanor offenses.”
There are also offenses that “wobble” between being a misdemeanor or an infraction.6 These misdemeanor/infraction “woblettes” are discussed in section 7, below.
2. When can a “wobbler” be reduced from a felony to a misdemeanor?
There are four stages at which a California wobbler crime can be reduced to a misdemeanor:
- When the prosecutor charges the offense;
- When the defendant is held to answer at a felony preliminary hearing;
- At the time of sentencing; or
- Provided the defendant was not sentenced to prison, after the defendant has completed California felony (formal) probation and filed a petition to reduce a California felony conviction to a misdemeanor.7
Note that unlike a wobbler, a “straight” felony cannot later be reduced to a misdemeanor.
3. How does a prosecutor decide how to charge a crime?
California law does not set forth standards for how a prosecutor should charge a wobbler. The decision remains within the prosecutor’s discretion.
However, prosecutors generally decide how to charge a wobbler in accordance with Uniform Crime Charging Standards published by the California District Attorneys Association (CDAA).
The CDAA recommends that prosecutors consider the following factors:
- The severity of the crime;
- The defendant’s cooperation with law enforcement;
- The defendant’s prior criminal record;
- The defendant’s age;
- The probability of continued criminal conduct by the defendant;
- Whether the defendant is eligible for probation; and
- The strength of the prosecution’s case.8
4. When can a judge reduce a felony to a misdemeanor?
Penal Code 17 gives judges as well as prosecutors the discretion to reduce a wobbler felony to a misdemeanor.
The judge can make this decision either:
- at the preliminary hearing,
- at the time of sentencing, or
- provided the defendant was sentenced to and completed felony probation, following the defendant’s petition to reduce a felony to a misdemeanor.9
The judge is not bound by how the prosecutor decided to charge the crime.10
Judges are free to reduce a wobbler felony to a misdemeanor if there are “circumstances in mitigation” of the crime.11
“Mitigating” circumstances are those that argue in favor of a judge being more lenient. Such mitigating factors include (but are not limited to):
- The defendant has no prior – or only an insignificant – criminal record,
- The defendant was a passive participant or played a minor role in the crime,
- The defendant used caution to avoid harming people or property,
- The defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process,
- The defendant made restitution to the victim, and/or
- The defendant’s prior performance on probation or parole was satisfactory.12
For more on factors that “mitigate” a crime, please see our article on California felony sentencing.
5. Disadvantages of a felony conviction
Certain rights and privileges are revoked when a defendant is convicted of a felony. Consequences of a felony conviction in California can include (without limitation):
- Having to disclose the conviction on job applications,
- Loss of a professional license (such as the right to practice law or medicine),
- Loss of California gun rights,
- More serious sentencing in the event of a subsequent felony conviction, and
- Longer and more restrictive probation (if probation is granted).
Thus, regardless of what California legal defenses your attorney may assert, he or she will ideally try to get a wobbler charged as a misdemeanor in the first instance.
6. How to get a wobbler conviction expunged
Many wobbler convictions can be “expunged” in California. “Expungement” is a form of post-conviction relief in California.
A conviction that is expunged ceases to exist for most (though not all) purposes.13 Most importantly, an expunged conviction does not need to be enclosed on most job applications.
Expungement is available for most wobblers regardless of whether the charge resulted in a felony or a misdemeanor conviction. To qualify, the defendant must:
- have successfully completed probation for the offense (or received early termination of probation), and
- not have served time in state prison for the offense, or
- have served time in state prison for an offense that would now be served in county jail as the result of 2011’s Proposition 47 “realignment” legislation.
Note that some California crimes cannot be expunged. These include serious sex offenses committed against children.
However, someone convicted of one of these offenses may eventually be able to obtain a Certificate of Rehabilitation and California Governor’s pardon.
7. California misdemeanor/infraction “wobblettes”
7.1. What is a “wobblette”?
A “wobblette” is a California offense that can be charged or sentenced as either a misdemeanor or an infraction.
An infraction is a non-criminal offense that can be punished by a fine, but no jail time.14 In California, most infractions are punishable by a fine of up to $250.15
Most California misdemeanors, on the other hand, can be punished by:
- Up to six (6) months in jail, and/or
- A fine of up to $1,000.16
In most respects, wobblettes operate in the same way as wobblers. The charge can be reduced to an infraction either:
- By the prosecutor at the time of charging, or
- By a judge during sentencing.17
7.2 Defendants must agree to a wobblette being charged as a misdemeanor
There is one important difference between a wobbler and a wobblette in California. Before a wobblette can be charged as an infraction, the defendant must consent.18
The reason is that a person charged with an infraction is not entitled to a trial by jury.19 Nor is he or she entitled to a public defender (unless held in custody).20
Most people will agree to be charged with an infraction and pay a small fine. But some defendants may prefer to be charged with a misdemeanor.
This is because a misdemeanor can often be punished by a jail sentence instead of a fine. So someone who has served jail time on a related charge may prefer to be sentenced to time served rather than having to pay a fine.
For legal representation…
If you have been charged with a California wobbler offense, we invite you to contact us for a free consultation.
We have local offices throughout the state, including in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Central California and the Bay area.
We also have offices in Las Vegas and Reno that can help if you have been charged with a wobbler crime In Nevada.
- California Penal Code 17(b) PC: “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, 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 or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.(2) When the court, upon committing the defendant to the Division of Juvenile Justice, 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 the 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.”
- Penal Code 17(d) PC: “A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:(1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or;(2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.”See also Penal Code 19.8(a) PC: “(a) The following offenses are subject to subdivision (d) of Section 17: Penal Code 193.8, 330, 415, 485, 490.7, 555, 602.13, and 853.7 of this code; subdivision (c) of Section 532b, and subdivision (o) of Section 602 of this code; subdivision (b) of Section 25658 and Sections 21672, 25661, and 25662 of the Business and Professions Code; Section 27204 of the Government Code; subdivision (c) of Section 23109 and Sections 5201.1, 12500, 14601.1, 27150.1, 40508, and 42005 of the Vehicle Code, and any other offense that the Legislature makes subject to subdivision (d) of Section 17. Except where a lesser maximum fine is expressly provided for a violation of those sections, a violation that is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250).”
- Penal Code 17(a) PC: “A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”
- Penal Code 17(b).
- Penal Code 17(d); Penal Code 19.8(a).
- See Penal Code 17(b).
- See M. Berwick, R. Lindenberg and J. Van Roo, Wobblers & Criminal Justice in California: a Study into Prosecutorial Discretion, March 20, 2010, page vii.
- Penal Code 17(b).
- See People v. Statum (2002) 88 Cal. App. 4th 1181 (“An alternative felony/misdemeanor, also known as a “wobbler,” is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b). [citation omitted]”).See also People v. Camarillo (2000) 101 Cal. Rptr. 2d 618, 84 Cal. App. 4th 1386 (“Case law under Penal Code section 17 generally provides that, unless there is some specific statutory provision to the contrary, a court has discretion to declare that a “wobbler” offense is a misdemeanor, and such a declaration precludes its use as a prior felony conviction in a subsequent prosecution. [citations omitted]”).
- See, e.g., California Rules of Court, Rule 4.423. Circumstances in mitigation. Rule 4.423 sets forth the factors a judge should weigh when imposing a felony sentence. Although not strictly applicable to “wobbler” reductions, these factors are usually what a judge will focus on when making a decision. See also Rule 4.421. Circumstances in aggravation.See andRule 4.423. Circumstances in mitigation http://www.courts.ca.gov/cms/rules/index.cfm?title=four&linkid=rule4_423These rules set forth factors a judge can consider in imposing a felony sentence. “Mitigating” factors allow a judge to be more lenient. “Aggravating” factors make a longer sentence more likely.or
- See same.
- Penal Code 1203.4.
- Penal Code 19.6 PC.
- Penal Code 19.8 PC.
- Penal Code 19 PC: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
- Penal Code 17(d).
- Penal Code 19.6.