Mainly, the prosecutor decides whether to charge a wobbler as a felony or a misdemeanor, but judges can also choose to punish a wobbler as a misdemeanor.
Further, suppose a defendant is convicted of a wobbler felony. In that case, they could file a California Penal Code 17(b) PC petition to reduce a felony conviction to a misdemeanor.
Further, suppose the defendant was not sentenced to prison and completed formal felony probation. In that case, they can file a PC 17(b) petition to reduce a California felony conviction to a misdemeanor. Notably, a “straight” felony cannot later be reduced to a misdemeanor.
A California wobbler crime can be reduced to a misdemeanor at different stages of the criminal case process, including the following:
- When a prosecutor files the offense;
- At the felony preliminary hearing;
- When the defendant's sentencing
If you've been accused of a sex crime in California that classifies you as a "wobbler," it gives your defense attorney an important negotiation strategy to try and get the alleged offenses charged as misdemeanors rather than felonies—or to get felony charges reduced to misdemeanors. Let's review this topic further below.
How Does a Prosecutor Decide How to File a Crime?
California law does not set standards for how a prosecutor charges a wobbler. Simply put, this decision remains within their discretion.
However, prosecutors typically determine how to charge a wobbler under the Uniform Crime Charging Standards published by the California District Attorneys Association (CDAA), which recommend that prosecutors should consider the following factors:
- Severity of the crime;
- Defendant's criminal history and age;
- Probability of further criminal conduct;
- Whether the defendant is eligible for probation;
- Strength of the prosecutor's case;
- Level of cooperation with law enforcement.
Can a Judge Reduce a Felony to a Misdemeanor?
Yes. Penal Code 17 PC allows judges and prosecutors to reduce a wobbler felony to a misdemeanor. A judge can decide at the preliminary hearing or sentencing, provided the defendant was sentenced to and completed felony probation after their petition to reduce a felony to a misdemeanor.
A judge is not required to follow how the prosecutor charges the offense. In other words, they can reduce a wobbler felony to a misdemeanor if the crime's mitigating circumstances favor being more lenient. Mitigating factors for a defendant include the following:
- No prior criminal record;
- A minimal and insignificant criminal history;
- Passive participant in the crime;
- Played a minor insignificant role in the crime;
- Voluntarily acknowledged wrongdoing early;
- Avoided harming people or property,
- Paid victim restitution;
- Satisfactory prior performance on probation or parole.
What Are the Advantages of Getting a Felony Sex Offense Reduced to a Misdemeanor?
While the best outcome with any criminal charge is either to be acquitted or to have the charge dismissed, the next best option is to reduce the charges.
Let's discuss several vital reasons why it's advantageous to have your attorney get a "wobbler" offense charged as a misdemeanor rather than a felony.
Felony sex crimes carry heavy sentences, including longer prison terms and more significant fines. Conversely, misdemeanors typically involve shorter jail times (if any) and smaller fines.
Additionally, although probation may be granted instead of incarceration for many offenses, misdemeanors are more likely to result in probation than felonies.
Avoiding a Felony Record
A felony conviction can have long-lasting effects on your life beyond the immediate legal penalties. It can affect future employment opportunities, housing applications, and even certain civil rights like voting or owning a firearm. Reducing a charge to a misdemeanor can help avoid these lasting and disruptive consequences.
Possibility of Avoiding the Sex Offender Registry
In California, certain sex crimes include required registration as a sex offender—for at least ten years, sometimes 20 years, and sometimes for life.
While getting your charges reduced to a misdemeanor won't necessarily keep you off the sex offender registry, a misdemeanor conviction can remove your name if you qualify to receive a Certificate of Rehabilitation from the court. For felony convictions, that Certificate won't get your name off the sex offender registry.
Potential for Expungement
In California, many misdemeanor offenses are eligible for expungement after some time. This means that, after completing probation or serving a sentence, a person can petition the court to remove the conviction from their public record. This option is typically not available for felony convictions.
Avoid Professional Licensing Complications
Many professions require licensing or certification from state boards or agencies. These bodies often have the power to deny or revoke licenses based on felony convictions, which can impact careers in healthcare, law, education, and more.
While a misdemeanor conviction may still have some impact, it is less likely to result in such drastic professional consequences.
What Sex Offenses in California Are Considered "Wobbler" Offenses?
The list of "wobbler" sex crimes in California is pretty long and includes the following offenses:
- Sexual Battery (Penal Code 243.4 PC): The act of touching another person's intimate parts without their consent for the purpose of sexual arousal, gratification, or abuse.
- Statutory Rape (Penal Code 261.5 PC): Having consensual sexual intercourse with someone under 18.
- Enticing a Child to Prostitution (Penal Code 266 PC): Soliciting, inducing, or attempting to persuade someone under 18 into engaging in prostitution.
- Unlawful Sexual Intercourse (Penal Code 266c PC): Any act of sexual intercourse that is not entirely consensual by both parties (e.g., fraudulent representation, threats invoking fear).
- Sodomy (Penal Code 286 PC): The act of sodomy (i.e., penile-anal penetration) is a wobbler in certain circumstances, such as when committed against a minor between 14-18 years old, committed in prison, etc.
- Lewd Acts with a Minor (Penal Code 288 PC): Certain instances of lewd acts (i.e., non-consensual sexual touching) are considered wobblers, such as with a dependent or with a minor aged 14-15 when you are ten years older.
- Oral Copulation (Penal Code 287 PC): Certain instances of illegal oral copulation are wobblers, including specific cases with minors or in prison.
- Forcible Sexual Penetration (Penal Code 289 PC): Certain instances of forcible sexual penetration with a foreign object are wobblers, such as with a minor or with someone incapable of consenting.
- Child Pornography (Penal Code 311 PC): It's a crime to send, transport, duplicate, print, advertise, or possess child porn or to hire or persuade minors to participate in making pornographic images.
You can contact us for a case review by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, California.