Legal Definition of a “Wobbler” in California law
A wobbler is a criminal offense in California that can be punished as either a misdemeanor or a felony. This type of offense typically results in a sentence of either time in county jail or time in state prison, depending on the discretion of the judges.
Most of the time, prosecutors also determine whether a wobbler should be charged as a felony or as a misdemeanor, depending on the crime.
In addition, a defendant convicted of a wobbler felony may file a petition with the court to reduce the conviction to a misdemeanor. There are over one hundred offenses classified as wobblers, such as driving under the influence, battery with serious bodily injury, petty theft, simple grand theft, and receiving stolen property.
What Crimes Are Wobblers in California?
There are hundreds of California offenses that qualify as wobblers. Among them are:
- Sexual offenses in California,
- Fraud crimes in California,
- Domestic violence crimes in California.
Additionally, some crimes are classified as either misdemeanors or non-criminal infractions. These offenses are known as “wobblette” offenses and include:
- Disturbing the peace, Penal Code 415
- Criminal trespass, Penal Code 602,
- Violating any California Vehicle Codes.
Common California “Wobbler” Offenses
The following are some of the most common California wobbler crimes:
- 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
Some of the most common California “wobblette” crimes include:
- Penal Code 415, disturbing the peace,
- Penal Code 602, criminal trespass,
- Vehicle Code 23109, the 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.
Our California criminal defense attorneys discuss “wobbler” offenses below to help you understand them better:
What is a California “Wobbler” Offense?
“Wobblers” are crimes that can be punished as either felonies or misdemeanors in California. Typically, the prosecutor makes the choice during the charging process.
Choosing between the three categories of offenses is crucial because California law recognizes three types of offenses. Here are the most serious to the least serious:
Certain crimes are punishable only as felonies. In this case, the crime is known as a “straight felony.”
There are, however, some crimes that courts and prosecutors can charge either as felonies or misdemeanors under California law. It is these crimes that are known as “wobblers.” Other names for them include “alternative felony/misdemeanor offenses.”
Also, some offenses can oscillate between being misdemeanors and infractions. The “woblettes” of misdemeanors and infractions are discussed in section 7.
When Can A “Wobbler” Be Reduced From a Felony To a Misdemeanor?
Depending on the circumstances, a California wobbler crime can be reduced to a misdemeanor in four stages: Here are the followings:
- When a prosecutor charges an offense,
- During a preliminary hearing for felony charges,
- During the sentencing process,
- When the defendant has completed California felony (formal) probation and has filed a petition to reduce a California felony conviction to a misdemeanor, the defendant was not sentenced to prison.
Note: unlike a wobbler, there is no way to reduce a “straight” felony to a misdemeanor later on.
How Does a Prosecutor Decide How to Charge a Crime?
California law does not set any particular standards for how a prosecutor should charge a wobbler. In California, prosecutors have discretion over how to charge a “wobbler” offense. However, they usually adhere to the Uniform Crime Charging Standards published by the California District Attorneys Association (CDAA).
The CDAA advises that prosecutors take into account the following elements:
- The seriousness of the offenses,
- The defendant’s cooperation with law enforcement,
- The defendant’s prior criminal history;
- The defendant’s age;
- The probability that the defendant will continue to engage in crimes;
- Is there any eligibility for probation;
- The strength of the prosecution’s case.
When Can a Judge Reduce A Felony To a Misdemeanor?
Penal code 17 gives judges and prosecutors the discretion to reduce a felony charge to a misdemeanor. The decision to do so is made either:
- During the preliminary hearing,
- During sentencing, or
- Provided the defendant successfully completed felony probation, the court may grant the defendant’s petition to reduce the felony charge to a misdemeanor.
The judge is not bound by the prosecutor’s decision to charge the crime and can reduce a wobbler felony to a misdemeanor if there are circumstances that argue in favor of leniency. Such mitigating factors include (but are not limited to):
- The defendant has no prior – or only an insignificant – criminal record,
- The defendant’s part in the crime was small, or they were not directly involved.
- The defendant took care to ensure that they did not harm people or property.
- The defendant admitted wrongdoing early on in the criminal process.
- The defendant repaid the victim in full, making amends for their actions.
- The defendant has satisfactorily completed probation or parole in the past.
Disadvantages Of a Felony Conviction
When a defendant is convicted of a felony, some rights and privileges are taken away. Consequences of a felony conviction in California can include:
- Having to disclose the conviction on job applications,
- Loss of a license (such as practicing law or medicine),
- Loss of California gun rights,
- More severe sentencing if a subsequent felony conviction results, and
- Longer and more restrictive probation (if probation is granted).
Thus, regardless of what legal defenses your attorney may assert, he or she will generally try to get a wobbler charged as a misdemeanor.
How to Get a Wobbler Conviction Expunged
In California, certain misdemeanors and felony convictions can be expunged. An expungement is a form of post-conviction relief in California. If you have been convicted of a misdemeanor or felony, your record is expunged. This means that any conviction will not show up on your job applications.
Expungement is available for most defendants regardless of whether their felony conviction resulted in a felony or misdemeanor charge. To qualify, the defendant must:
- Have successfully completed probation for the offense or received early termination of probation.
- Either – not have served time in state prison for the offense OR have served their sentences in county jail instead of state prison according to 2011’s Proposition 47 “realignment” legislation.
Note: Some California crimes cannot be expunged. Examples include serious sex offenses committed against children, as well as some drug and weapons convictions.
But, a person convicted of one of these offenses may still be eligible for a Certificate of Rehabilitation and a California Governor’s pardon.
California Misdemeanor/Infraction “Wobblettes”
What is a “Wobblette”?
A “wobblette” is when an offense is charged or sentenced to be either a misdemeanor or an infraction. A minor infraction is a non-criminal offense that can be punished by a fine of up to $250, but no jail time. On the other hand, most California misdemeanors can be punished by:
- Up to six (6) months in jail, and/or
- A fine of up to $1,000.
As with wobblers, “wobblettes” operate in the same way. The charge can be reduced to an infraction either:
- By the prosecutor at the time of charging, or
- By a judge during sentencing.
Defendants Must Agree To a “wobblette” Being Charged As a Misdemeanor
There are a few key differences between a wobbler and a “wobblette” in California. A “wobblette” must provide consent before he or she can be charged with an infraction. This is because a person charged with an infraction will have the right to trial by jury. Nor will they have the right to request public defenders (unless held in custody).
Most people agree to pay a small fine rather than face jail time. This is because they would rather pay a small fine than face possible jail time, which is why some defendants may prefer to be charged with a misdemeanor. So, someone who has served jail time for a related charge may prefer to be sentenced to time served rather than paying a fine.
Get Assistance From Our Criminal Defense Lawyers!
If you have been charged with a California wobble crime, we invite you to contact us for a free consultation. Our lawyers cannot only help you reduce charges on a wobbler, but also be able to get the case dismissed entirely. Our knowledgeable criminal defense attorneys know the most effective defense strategies to convince the prosecutor or judge to reduce your charge to a misdemeanor from a felony. Get in touch with us today!