As outlined by California law, a wobbler is an offense that can be charged as either a felony or misdemeanor. In most cases, the prosecutor determines whether to charge a crime as a felony or misdemeanor. While making this decision, the prosecutor considers the defendant's criminal history and the facts of a case. The judge can also decide whether to charge a crime as a misdemeanor or felony. Even if you are prosecuted for a wobbler offense, you can file a petition to seek a reduction of your felony conviction to a misdemeanor. Leah Legal can assist if you commit a wobbler offense in Van Nuys, CA, and need guidance on reducing your charges.
Wobbler Crimes Explained
The decision of how to charge a wobbler offense is crucial because California law recognizes three main categories of crimes: felonies, misdemeanors, and infractions. Some crimes can only be charged as felonies; these are known as straight felonies. Wobbler crimes are also known as alternative felony or misdemeanor crimes. Certain crimes also wobble between being misdemeanors or even infractions. These crimes are known as wobblettes.
Reduction of A Wobbler Crime From A Felony To Misdemeanor
A California wobbler crime can be reduced to a misdemeanor at four main stages:
- When the prosecutor charges the defendant with the crime
- During the preliminary hearing, when the defendant answers to felony charges
- During the time of sentencing
- After the defendant completes a formal or felony probation, provided, the defendant was not sentenced to prison.
However, after completing probation, the defendant must file a petition to have their felony conviction reduced to a misdemeanor. If the prosecutor charges the defendant with a straight felony, this crime cannot be later reduced to a misdemeanor like a wobbler.
Deciding How To Charge An Offense
The California law does not outline standards or guidelines on how the prosecutor should charge a crime. Therefore, how to treat a wobbler crime is a decision that lies with the prosecutor. When deciding on how to charge a crime, prosecutors mainly rely on the charging standards established by the California District Attorneys Association, commonly abbreviated as CDAA. These standards enhance uniform crime charging standards. As outlined by the CDAA, the prosecutor should consider the following factors when deciding whether to charge a crime as a misdemeanor or felony:
- The severity of the offense
- How the defendant cooperates with the law enforcement officers
- The defendant’s age
- The defendant’s past criminal history
- The probability of the defendant continuing to engage in criminal activities
- Whether the defendant qualifies for probation instead of jail time
- The strength of the prosecutor’s case against the defendant
When The Judge Can Reduce A Felony Conviction To A Misdemeanor
According to California PC 17, judges and prosecutors have a right to use their discretion to reduce a wobbler felony crime to a misdemeanor. The judge can decide how to charge a crime at:
- The preliminary hearing
- During sentencing
- When the defendant completes probation, provided the defendant was sentenced to felony probation instead of jail time.
In the case of formal probation, the defendant must file a petition seeking a reduction of the felony conviction to a misdemeanor. When deciding whether to reduce a crime from a felony to a misdemeanor, the judge is not bound by the prosecutor’s decision regarding the crime. Even if the prosecutor charges a crime as a felony, the judge is free to reduce the wobbler crime to a misdemeanor provided there are circumstances in mitigation. Mitigation circumstances refer to the factors that persuade the judge to be more lenient in the sentencing. The typical mitigating factors that could make the judge reduce the defendant’s charges are:
- The defendant is a first-time offender and doesn’t have a prior or any significant criminal record
- The defendant played a minor role in a crime or was a passive participant
- While committing the crime, the defendant used caution to prevent property destruction or harming people
- The defendant voluntarily admitted to their wrongdoing at an early stage of the case or criminal process
- The defendant agreed to pay restitution to the victim. Paying restitution to the victim involves compensating the victim for the loss they incur as a result of an offense or the defendant’s actions
- The defendant recorded a satisfactory performance in their probation or parole
How A Felony Conviction Affects Your Rights and Privileges
Many disadvantages accompany a felony conviction. For example, the court may revoke some of your rights and privileges after a felony conviction. Other disadvantages are:
- You have to disclose the felony conviction in all your job applications
- You may lose your professional license, for example, your right to practice medicine or law
- A felony conviction could also lead to the loss of your gun rights
- You will be subject to more severe sentencing if you happen to commit an additional or subsequent felony conviction
- If the court grants you probation instead of jail time, you will be subject to more extended and more restrictive probation than you would for a misdemeanor conviction.
You should contact an experienced criminal defense attorney; your attorney will do everything possible to negotiate with the court and the prosecutor to reduce your crime to a misdemeanor.
Offenses That Can Be Charged As Misdemeanor or Infractions
An offense that can be charged as a misdemeanor or infraction is known as a wobblette. Infractions are non-criminal offenses that are usually punishable by fines instead of jail time. Under California law, most infractions are punishable by fines that do not exceed $250. On the other hand, most misdemeanor offenses are punishable by:
- A jail time of not more than six months in a county jail
- A fine that does not exceed $1000
Wobblettes operate in the same way as wobblers. The prosecutor can reduce a misdemeanor charge to an infraction; the prosecutor can only reduce the crime to an infraction during the charging. The judge can also reduce the crime to an infraction during sentencing.
There is no significant difference between a wobbler and a wobblette. Before a wobblette can be reduced to an infraction, the defendant must agree. If a defendant is charged with an infraction, they are not entitled to a jury trial. The defendant is not also entitled to a public defender unless the defendant is held in custody. Some defendants may prefer to be charged with a misdemeanor to an infraction.
However, most people agree to be charged with an infraction whereby they only have to pay a small fine. Most misdemeanor crimes can be punishable by a jail sentence instead of a fine. If a defendant has served jail time for a related crime, they may prefer a jail sentence to paying a fine. Usually, a jail sentence for a misdemeanor offense does not exceed six months.
Wobbler Crimes Under California Law
Hundreds of crimes qualify as wobblers under California law. These offenses include sex crimes, fraud crimes, and domestic violence crimes. Some of the specific crimes that are usually charged as wobblers are:
- Sexual battery under PC 243
- Vehicular manslaughter under PC 192(c)(1) and (2)
- Assault with a deadly weapon, commonly abbreviated as ADW under PC 245(a)(1)
- Statutory rape under California PC 261.5
- Child endangerment under California PC 271
- Spousal battery under PC 273.5
- Lewd acts with a minor under California PC 288
- Burglary under PC 459
- Making criminal threats as outlined by PC 422
- Forgery under PC 470
- Grand theft under PC 487
- Stalking under PC 646-9(a)
- Carrying a loaded firearm in public under California PC 25850(a)
Wobblette Crimes Under California Law
Several crimes wobble between misdemeanors and infractions. These are wobblettes and mainly include disturbing the peace under PC 415 and criminal trespass under the California PC 602. Many California vehicle code violations are also wobblettes, chargeable as misdemeanors or infractions. The common wobblette offenses under California law include:
- Disturbing the peace under California PC 415
- Criminal trespass under California PC 602
- Exhibition of speed under VC 23109
- Driving without a license under VC 12500
- Driving with a revoked or suspended license under VC 14601.1
- Failure to appear for a traffic violation as outlined by VC 40508
Felony Sentencing In California
The sentencing for felony offenses under California law may include imprisonment in a county jail or state prison. The court may also impose hefty penalties of up to $10,000 on the defendant. The judge may also sentence a person facing felony charges to felony probation, also known as formal probation.
How long a felony sentence lasts will vary depending on the facts of your case. A felony sentence can be low term, medium term, or high term. Some California statutes set forth the specific terms applicable to an offense; they also state whether the defendant will serve a sentence in a county jail or state prison. The law requires courts to impose sentences on the lower end of the penalty range, provided no extraordinary circumstances are available.
Sometimes, the law does not set forth the specific sentence for a crime. Instead, the law states that the offense should be punished according to California PC 1170 (h). If the law calls for punishment under PC 1170 (h), the judge may sentence the defendant to a jail term of sixteen months, two years, or three years.
Deciding Between Low, Middle, And High Term Sentencing
Generally, the judge will impose middle-term sentencing for a felony crime. However, the judge may impose a high term sentencing on the defendant when aggravating factors are present. Aggravating factors in felony crimes include causing significant bodily injury to the victim, crimes involving extreme violence, or using a weapon while committing a crime. When mitigating factors are present, the judge is likely to impose a low term sentencing on the defendant. Mitigating factors include whether the defendant is a first-time offender or a passive participant in a crime.
The punishment for a California felony may include a fine. Sometimes, the statute defining a crime sets forth the applicable fine. If the law does not specify the fine, the judge may impose a fine of up to $10,000. The fine could be imposed in addition to the jail time or instead of jail time.
Felony Probation And How It Works
If the prosecutor charges a wobbler as a felony, the judge has the right to use their discretion to convert part or the entire felony sentence to a California felony probation instead of jail time. The goal of felony probation is to rehabilitate the defendant and enable them to live as law-abiding citizens. While on felony probation, the defendant serves part or all of their sentencing under the supervision of a probation officer instead of serving a sentence in jail.
At times, a sentence of felony probation may be accompanied by a jail time of up to one year in county jail. However, most people sentenced to felony probation serve little or no jail time. If a case is probation eligible and no extraordinary circumstances are present, the law requires California courts to grant probation instead of jail time.
For a non-violent felony, formal probation lasts for up to two years. However, the probation may last for up to three years if the defendant commits any of the crimes below and the offense involves more than $25,000:
- Grand theft as outlined by the California PC 487 (b) (3)
- False personation and cheats under PC 532a
- Embezzlement under PC 503
The two or three-year probation limit does not apply to crimes whose law specific the probation period or violent felonies. For these crimes, the probation period could be up to five years. While on probation, the defendant must comply with specific probation terms. The probation terms include but are not limited to:
- Meeting with the probation officer every month
- Paying restitution to the victim
- Group or individual therapy
- If the felony involved a California drug crime, the defendant might have to submit to impromptu drug testing.
- Community labor or service
- An impromptu search of the defendant's property or person without or without a search warrant
When The Defendant Violates The Probation Terms
If the judge sentences a defendant to formal probation, but the defendant violates the probation terms, the judge may:
- Revoke the probation
- Send the defendant to jail or prison for the maximum sentence for the crime.
However, if the defendant has a good reason or explanation for violating the probation terms, the judge may not punish the defendant. The judge may also make the probation terms harsher or lengthen the probation terms.
Felony Paroles And How They Work
Parole laws are almost similar to probation laws. However, parole laws only apply when the defendant is sentenced to a California state prison, and the defendant completes the probation or is granted an early release. Parole comes with conditions like probation. Like probation, the judge can revoke a California parole. If the judge revokes parole, they may send the defendant back to prison.
Expungement Of A Wobbler Conviction
It is possible to expunge many wobbler convictions under California law. Expungement refers to a form of post-conviction relief provided under California law. After expungement, a conviction ceases to exist for most purposes. Usually, you do not need to reveal an expunged conviction on your job applications. Expungement is available for many wobbler crimes irrespective of whether the charge resulted in a felony or misdemeanor conviction. The following must apply for a defendant to qualify for expungement of their wobbler conviction:
- The defendant should have completed probation successfully or offered an early probation termination.
- The defendant should not have served time in a California state prison. However, the defendant could still qualify for an expungement if they served time in state prison for a crime that would now lead to confinement in county jail after the passage of Proposition 47.
Completing your probation means that:
- You honored all the probation terms, including paying restitution and fines, completing counseling programs, and community services
- You attended all the necessary court hearings in person, or your attorney represented you
- You did not commit additional crimes while on probation
However, you can get an expungement even if you did not honor all the probation terms. If you violated the probation terms, the court would hold a special hearing to determine whether you are a good candidate for expungement. The court will use its discretion to decide whether to grant you probation or not. Some of the factors that the court will consider are:
- Your criminal history
- The seriousness of the underlying conviction
- Your overall performance while on probation
- Other factors that show you deserve a relief
It is important to note that certain crimes cannot be expunged under California law. For instance, you can’t qualify for an expungement if you commit serious sex offenses against children. However, you could still obtain a Governor's pardon or a Certificate of Rehabilitation.
You are not eligible for an expungement of your criminal conviction if any of the following is true:
- You are currently facing charges for a criminal offense
- You are serving probation for a criminal offense
- You are serving a sentence for a criminal offense
Find A Van Nuys Criminal Defense Attorney Near Me
If you have been charged with a wobbler in Van Nuys, CA, we invite you to contact Leah Legal. Our experienced attorneys will evaluate your case and guide you on the way forward. We will do everything to negotiate with the prosecutor to reduce your charges from a felony to a misdemeanor. We will also guide you on the expungement process to relieve you of the burden of the wobbler conviction. Call us at 818-484-1100 and speak to one of our attorneys.