Generally, charges are categorized as a felony or a misdemeanor. However, certain offenses in San Jose are considered wobblers. A wobbler is both a felony and a misdemeanor. Whether you are charged with either depends on the alleged crime’s nature and how it’s prosecuted and sentenced. Well, this can be confusing and frustrating if charged with one. This blog post explains in detail wobbler crimes, what that could mean for you, and how to reduce your felony to a misdemeanor.
Defining a Wobbler Crime
A wobbler (alternative felony/misdemeanor crime) is an offense that could be prosecuted as either a felony or a California misdemeanor. Typically, the prosecution decides when charging the crime. Their choice is essential because the law recognizes 3 (three) main categories of crimes: felonies, infractions, and misdemeanors (felonies being the most serious).
However, some offenses are only charged as felonies; they are called straight felonies.
Additionally, some crimes can be either an infraction and a misdemeanor. They are known as wobblettes.
How the Prosecution Decides to Charge an Offense
The law doesn’t have standards for how the prosecution must file a wobbler. The choice is within the prosecution team’s discretion.
Nevertheless, prosecutors determine how to file wobbler crimes according to the Uniform Crime Charging Standards published by the California District Attorneys Association. The CDAA commends that the prosecutor considers the factors below:
- How strong the prosecutor’s case is
- Whether you qualify for probation
- The possibility of continued criminal activity
- Your age
- Your previous criminal record
- Whether you cooperated with law enforcement agencies
- The seriousness of the crime
- Was your role in the violation of the law a minor or substantial one?
Also, the prosecutor can use their discretion to reduce an offense to a California misdemeanor if they want to:
- settle the criminal case short of trial, or
- other events or facts that have been revealed that reduce your role or cast doubt on your guilt.
It might include:
- Loss of witnesses
- Exclusion of proof in court
- Statements from new witnesses
- Doubt to the credibility of the key prosecution witnesses
Even when charged with a felony, you might have options to reduce it to a lesser crime later as your criminal case proceeds.
Common California Wobblers
Common wobbler crimes are:
- Sexual battery, PC 243.4
- Vehicular manslaughter
- Statutory rape, PC 261.5
- Child endangerment, PC 271
- Spousal battery, PC 273.5
- Making a criminal threat, PC 422
- Burglary, PC 459
- Forgery, PC 470
- Grand theft, PC 487
- Lascivious conduct with a minor, PC 288
Consequences of a California Felony Conviction
Specific privileges and constitutional rights are revoked when you are found guilty of a felony. Common penalties of a California felony can include the following:
- Revealing your conviction on your job applications, making it challenging to find employment
- Loss of professional licenses like the entitlement to practice medicine or law
- Loss of the entitlement to vote (applies to some felons)
- Loss of firearm rights
- More restrictive and more extended probation (if probation is granted)
- More severe sentencing following a subsequent felony conviction
- Trouble finding housing
- It might also affect the ability to get child custody
If you’ve been arrested for a felony, the police should tell you of the entitlement to legal representation. You ought to exercise the right. Your knowledgeable defense lawyer understands the judicial system and can negotiate for the reduction of the charge.
Following your arrest, you’ll make your first court appearance at an arraignment hearing. It is essential to have your lawyer with you since you will be asked to enter a plea of guilty, no contest, or not guilty. You will require legal guidance in taking a plea that meets your best interests.
The pre-trial stage follows your arraignment hearing with the counsel acquiring proof against you and evaluating it for weaknesses and inconsistencies. During this phase, your lawyer can also contact the prosecutor and try to resolve your criminal charge to avoid a trial.
How to Reduce Your Felony Charge to a California Misdemeanor
Reducing your felony charge to a California misdemeanor offers several benefits, including restoring privileges and rights revoked following your felony conviction.
PC 17b provides two requirements that you must meet before reducing the felony to a misdemeanor. They include:
- your underlying crime should be a wobbler, and
- the judge granted you probation related to the felony conviction.
- a defendant violated the probation terms,
- or the judge denied probation and sent them to state prison,
they do not qualify for the reduction. Additionally, they aren’t eligible for expungement of the criminal record.
What about California Felonies Punishable by Jail Sentences Per California Realignment (AB 109)
Per AB 109, a prison sentence for some felonies has been replaced by a similar time spent in jail. The court treats jail time as sentences in prison as far as felony reductions are concerned.
In other words, if you’re sentenced to jail per PC 1170(h) for a California felony, you do not qualify for the reduction under Penal Code 17b.
When Can You File a PC 17b Motion?
The court has the discretion to reduce the charge to a California misdemeanor at:
- Your preliminary hearing
- Your sentencing
- After completing your probation
Your criminal defense attorney can file a petition to have the felony lowered to a California misdemeanor following probation if you’re currently serving your formal probation. Sometimes your legal counsel can help you acquire an early termination of probation to expedite the process.
If you have already completed probation, you can request the judge to lower the charges at any point.
There are numerous factors that the court considers when determining whether to grant PC 17b felony charge reduction, including:
- The nature and type of the alleged crime
- Case facts
- Your adherence to the probation conditions
- Your personal history
- The criminal history
The District Attorney might claim that the judge should reduce the convictions, which the judge might not consider. Sometimes if the prosecution does not oppose, they might choose to keep quiet on the matter.
Some Penalties Carry Over Even After the Reduction
Consequences and penalties of a felony conviction that apply even following the charge reduction include the following:
- If the underlying crime required you to register as a sex offender under PC 290, you would still register after the reduction
- State licensing authorities might still deem your conviction a California felony
- If the original crime was a violent felony or a serious felony, your conviction would remain a previous strike under the Three Strikes Law
As previously mentioned, the entitlement to vote is not revoked from every felon. You only lose the right if, during the election, you are:
- on parole after your felony conviction, or
- in a California state prison.
Luckily, apart from these exemptions, a PC 17b charge reduction is a misdemeanor for every purpose. In short, a reduced California felony can’t serve as a previous offense for a future that needs a preexisting (predicate) felony conviction.
Can You Have Your Gun Rights Reinstated Even After Your Felony is Reduced?
Generally, misdemeanor charges don’t cause your gun rights to be revoked. Nevertheless, there are situations where you might still be unable to own, purchase, or possess a firearm, even after the felony is reduced.
PC 29805 lists more than forty misdemeanor charges that place a ten-year ban on firearm rights on those found guilty of them. Some of these crimes include assault, violence, domestic violence, and stalking. That means you cannot own a gun in California for ten years following your conviction. It applies even when the charge is reduced to a misdemeanor.
Moreover, 18 USC 922 details restrictions around firearm control, including:
- A person addicted to controlled substances
- Any person disgracefully discharged from the Armed Forces
- A person convicted of domestic violence
- An individual with a protective order imposed against them by their intimate partner
Anyone prosecuted with either of these crimes will have their firearm right revoked for life, even when the criminal charge is a misdemeanor.
Can Your Wobbler Conviction be Expunged?
Expungement under PC 1203.4 is the legal process where your conviction or a plea of no contest or guilty is set aside, and your case dismissed. It relieves you of almost all penalties and consequences resulting from your conviction. Some of the benefits of expungement include:
- Your potential employer cannot discriminate against you based on an expunged conviction.
- It makes it easier to acquire state professional licenses
- Your expunged conviction cannot be used to impeach your credibility as a witness in a court of law
- It can sometimes help avoid immigration consequences like deportation
An eligible felony conviction is sentenced as a felony or a misdemeanor. It would help to reduce the felony conviction to a California misdemeanor before your petition is considered.
Typically, the benefits of expungement are the ultimate goal for most defendants seeking early termination of probation or reduction of a felony to a misdemeanor. It’s possible to expunge your felony conviction without first reducing it to a California misdemeanor. However, an expunged misdemeanor is better than an expunged felony since it preserves benefits and rights that the law could deny felons who have expunged their felony convictions. That is why most people choose to seek PC 17b felony reduction before expungement.
You do not qualify for expungement if you are:
- Currently charged with an offense
- Serving time for your crime
- Serving probation for an offense
Also, a felony conviction for which you are sentenced in California state prison isn’t eligible with the exemption of Proposition 47 offenses. You still qualify for expungement if you were convicted and sentenced to prison before Proposition 47 was passed in 2004 for an offense that the proposition affects.
If you complete your probation without any violation, the court should grant your petition for qualifying convictions. Nevertheless, if you break your probation terms, your expungement is within the court’s discretion. The judge will consider your petition based on your rehabilitation evidence. Your experienced criminal defense lawyer should guide you through collecting the necessary evidence and preparing a persuasive petition.
Typically, after the expungement petition is granted, it is not a must that you should report your conviction. For instance, you can mark “No” on your job application if asked whether you have even been convicted of any offense. However, you should report your expunged conviction when obtaining state professional licenses and applying for specific jobs.
Legally speaking, when the judge grants your petition for expungement, they have permitted you to withdraw your no contest plea or guilty plea and enter a plea of not guilty. If the jury or judge convicted you, the court would set aside your guilty verdict. Then the court will dismiss your criminal charges.
While expungement sounds like an erasure of your conviction and criminal charges, it’s not. Your conviction will still show on your state and Federal Department of Justice Criminal History Records but as a dismissed conviction.
Certificate of Rehabilitation
Under PC 4852.01, a certificate of rehabilitation is a court order indicating that you are now a law-abiding citizen. The post-conviction relief does not erase your criminal record and history.
The process entails filling out a form, collecting evidence supporting the application, and finally, a court hearing. If a person obtains the certificate:
- Their civil rights are restored
- You can obtain employment and public licensing
- Depending on your crime, you might no longer be required to register as a sex offender.
Under PC 4582, you are eligible for COR if you:
- Have not been sentenced again following your release
- Have continuously resided in the state for more than five years following your release
- Have evidence of rehabilitation since the release
- Are not serving probation for another crime
- Were found guilty of a California felony and served time in prison or another state penal agency or institution
- Were found guilty of a California felony, sentenced to probation, and the conviction has been expunged
- Were found guilty of a California misdemeanor offense, and the conviction has been expunged
Some of the evidence of rehabilitation you can use include:
- Records of steady employment
- Receiving domestic violence, alcohol, or drugs counseling
- Community service engagement
- Positive letters and recommendations from the clergy, community leaders, volunteer agencies, and employers
- Not having an arrest record.
After applying, a court hearing is scheduled. If the court issues the certificate, the Board of Parole Hearing reviews it and later recommends the governor to pardon you.
A governor’s pardon is another post-conviction relief that the governor grants to persons who have proved a high degree of rehabilitation following their conviction. It relieves most of the penalties and consequences linked to the criminal record.
Almost everyone convicted of an offense in California may seek a pardon following a rehabilitation period. Depending on your alleged crime, the timeframe can range from seven to ten years. The clock begins ticking immediately after you complete parole or probation. During this timeframe, you should not be found guilty of any crime.
The pardon is within the governor’s discretion, and they can grant it to as few or as many as they like.
Please note that only the president of the U.S. can pardon military and federal offenses.
Typically, individuals who are not eligible for expungement seek the governor’s pardon. While an expungement is more effective than the pardon, there are things that the expungement can’t do, including:
- Preventing deportation of a legally present lien, and
- Removing the sex offender registration responsibility
How to Acquire a California’s Governor’s Pardon
You can seek a governor’s pardon in either of the following ways:
- Filing a petition for a Certificate of Rehabilitation to the superior court
- Filing your application directly with the California governor’s office
- Obtaining a recommendation for a pardon from the Board of Parole Hearings
How Does a Wobblette Differ From a Wobbler?
A crime that could be sentenced or charged as either an infraction or a misdemeanor is a wobblette. An infraction is a non-criminal crime punishable by fines and does not carry incarceration. Most California infractions attract a maximum fine of two hundred and fifty dollars. On the contrary, misdemeanors carry maximum penalties of one thousand dollars in fines and a six-month county jail sentence.
Typically, a wobbler operates similarly to a wobblette. Your charge could be reduced to an infraction either by:
- a judge during your sentencing or
- the prosecution when filing the criminal charges.
Another difference is that before your wobblette becomes an infraction, the accused person must consent. If prosecuted with an infraction, you neither have rights to trial by jury nor a public defender (unless detained in police custody).
Many defendants agree to be prosecuted with an infraction and face fines as a penalty. On the other hand, some might prefer to be sentenced to a misdemeanor. It’s because misdemeanors generally attract time in jail instead of fines. Therefore, persons who have previously faced incarceration on related charges might prefer to serve time instead of paying fines.
Contact a Knowledgeable San Jose Criminal Defense Lawyer
The law allows specific crimes to be filed as either felonies or misdemeanors. How the prosecution team handles wobbler crimes depends on the case facts and your previous criminal record. The law presumes wobblers to be felonies and remains felonies unless the prosecutors exercise discretion to make them misdemeanors. Essential privileges and rights are revoked when sentenced for a felony, including losing firearm rights and employment. California Criminal Lawyer Group (San Jose), an experienced law firm in San Jose, knows the best defense strategies. We can convince the prosecutor on your behalf to reduce your charge to a California misdemeanor and avoid facing significant potential consequences. Please contact our office at 408-622-0204 to discuss your criminal case and how we can protect your reputation, livelihood, and freedom.