There are certain criminal offenses that a prosecutor can file as either a felony or misdemeanor crime. These offenses are commonly known as a “wobbler.” When a prosecutor is making their decision on how to file a case, they typically consider major factors such as the specific facts of the case and your criminal history.
For example, if you have a lengthy rap sheet, the prosecutor is more likely to file your wobbler case as a felony crime. On the flip side, if you have no prior criminal history and there is evidence to mitigate your culpability in the crime, you are more likely to face a misdemeanor case.
The term “wobbler” is frequently used in Los Angeles County criminal courts with regards to the legal penalties and sentencing involved with some California crimes, but most are not familiar with its actual meaning.
It's important to note that a judge can also decide to punish a wobbler as a misdemeanor offense even if you were convicted of a felony wobbler crime, and you might be able to petition the court to reduce your felony conviction to a misdemeanor.
In California, there are many types of crimes that qualify as a wobbler. These include domestic violence, fraud crimes, theft crimes, and sexual related crimes. Typically, you won't know whether you will be charged with a misdemeanor or felony crime until formal charges are actually filed by the prosecutor.
The Los Angeles County District Attorney's Office (link) will review a possible filing for a felony case. If during this review, they decide a misdemeanor charge is more appropriate, they will send it to the Los Angeles County City Attorney's Office (link) who has jurisdiction over misdemeanor cases.
If you have been charged with wobbler crime, you should consult with the California criminal defense lawyers at Eisner Gorin LLP to review the details of your case and to start preparing a strategy to obtain the best possible outcome.
Difference Between a Misdemeanor and Felony
Why is this decision on how the case is filed so important? Clearly, the difference between a misdemeanor or felony conviction is very significant. A felony conviction can result in time in a California state prison, loss of rights to own or possess a firearm, and the right to vote in elections.
Additionally, a felony on your record will make it difficult for you to find employment, housing, and you could lose a professional license.
A misdemeanor conviction carries a maximum sentence of one year in a local county jail. It should be noted there are a few offenses known as a “wobblette,” that can be charged as either a misdemeanor crime or just an infraction, which is not considered criminal. A common example includes California Vehicle Code Violations such as exhibition of speed or driving with a suspended license.
Most misdemeanor crimes have a one-year statute of limitations, which is a law that prohibits a prosecutor from charging you with a crime after a set time period. A “wobbler” offense would be subjected to the statute of limitations of a felony case, which is three years.
For example, the Los Angeles County prosecutor has three years to charge you with a DUI causing injury even in a situation where they end up deciding to file the case as a misdemeanor charge.
Factors Used by a Prosecutor to Decide
The decision on exactly how to file a case is at the discretion of the prosecutor. So, what factors do they use to make a decision on whether to file a case as either a misdemeanor or felony crime? Typically, the prosecutor will consider the following main factors:
- Specific details, circumstances, and severity of your crime
- Your age and prior criminal record
- Strength of their case against you
- Potential of further criminal behavior
- Eligibility of probation
- Cooperation with police
If your unlawful behavior was severe, or you have a long criminal record, you will most likely face a felony charge. In some cases, our experienced criminal defense lawyers may be able to make an argument your behavior and history don't justify a felony case. We have been successful through our pre-filing intervention to negotiate with the prosecutor and avoid the filing or formal charges.
It's important to note that California Penal Code Section 17 also gives the judge the discretion to reduce a wobbler felony case to a misdemeanor case. They will typically make their decision at the at the preliminary hearing, sentencing, or after a PC 17(b) petition to reduce a felony to a misdemeanor.
A judge has the authority to reduce a wobbler felony to a misdemeanor if there are mitigating circumstances of the crime, meaning there are certain factors present that could be argued for the judge to lenient. The main factors are lack of a criminal record, specific role in the crime, victim restitution, voluntary cooperation, behavior while on probation or parole, among others.
Common “Wobbler” Offenses in California
- California Penal Code Section 32 - Accessory After the Fact
- California Penal Code Section 136.1 - Dissuading a Witness
- California Penal Code Section 186.10 - Money Laundering
- California Penal Code Section 191(c)(1) and (2) - Vehicular Manslaughter
- California Penal Code Section 243(c) - Battery on Police with Injury
- California Penal Code Section 243.4 - Sexual Battery
- California Penal Code Section 245(a)(1) - Assault with Deadly Weapon
- California Penal Code Section 261.5 - Statutory Rape
- California Penal Code Section 270 - Child Neglect
- California Penal Code Section 271 - Child Endangerment
- California Penal Code Section 422 - Criminal Threats
- California Penal Code Section 273.5 - Corporal Injury on Spouse
- California Penal Code Section 459 - Burglary
- California Penal Code Section 470 - Forgery
- California Penal Code Section 487 - Grand Theft
- California Penal Code Section 496 - Receiving Stolen Property
- California Penal Code Section 503 - Embezzlement
- California Penal Code Section 646.9(a) - Stalking
- California Penal Code Section 25850(a) - Carry Loaded Firearm in Public
- California Vehicle Code 23153 – DUI Causing Injury
It may be possible to get an expungement of a wobbler conviction, meaning it won't have to be disclosed on a job application. In order to be eligible for an expungement, you must have successfully completed or received early termination of probation. However, you are not eligible if you served time in a California state prison or convicted of a sexual related crime against a minor.
Contact our Criminal Defense Law Firm
If you have been charged with a wobbler offense, our experienced criminal defense lawyers understand the most effective arguments to negotiate with a prosecutor or judge to minimize legal penalties by having your case filed as a misdemeanor rather than a felony case.
As you can see above, the difference between a felony and a misdemeanor can be life-altering. We serve clients throughout Southern California, including Los Angeles County and the San Fernando Valley. Contact our law firm to review the details of your case at 877-781-1570. Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776
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