Generally, any crime for which you can be incarcerated for more than a year is considered a felony, which is how California distinguishes criminal offenses.
More serious felonies, such as first degree murder, are capital crimes for which you can receive the death penalty or life imprisonment without the possibility of parole.
California also has a 3-Strikes law where a strike is placed on your record for a serious felony conviction such as
Criminal offenses are classified into two main categories: felonies and misdemeanors. Felonies were, at English common law, considered the “true crimes” or those which were the most serious. These typically refer to crimes that are sexual, white collar or financial, drug related, involving firearms or violent physical harm and murder. Sexual crimes can be serious or violent and felonies considered serious have consequences that can lead to long prison sentences, indefinite or life-time registration as a sex or drug offender, if the offense involved these factors, and a strike on your record. There are immigration consequences for non-US citizens as well.
Most felony sentences are spend in a state prison facility, though some offenders may be placed on probation and/or spend some time in a county jail while other offenses allow defendants to serve their entire sentence in a county jail instead.
Many states have varying degrees of felonies and may put them into classes such as New York that categorizes them as A through E felonies depending on their seriousness while other states have first through third degree felonies. California does not have such categories though not all felonies are treated alike.
Fines for a California felony conviction can be substantial. If the statute defining the felony does not state the amount, it is presumed to be up to $10,000. Drug and financial fraud crimes may also be prosecuted as federal offenses with fines in the millions of dollars depending on the quantity of drugs or the extent of the fraud.
Examples of felonies include:
- At the arraignment, the defendant is appointed a public defender if deemed eligible. The charges against the defendant are either read or waived and the defendant’s constitutional rights are read. After the reading of charges or waiver, then a plea of guilty, nolo contendre or not guilty is entered. The defendant is then either remanded to custody if not already in jail, released on own recognizance (OR) or a bail amount is set.
- D&R or pretrial conference where early resolution is discussed.
- Preliminary hearing to determine if probable cause exists that a felony was committed and that the defendant committed it–the standard of proof is much lower than that of beyond a reasonable doubt. If probable cause is found, the defendant is bound over to Superior Court and arraigned there again.
- Motions by defense counsel to exclude evidence or other pretrial matters affecting the trial.
- A Motion to Set Aside the Information (PC 995) or to have one or more charges dismissed for lack of probable cause or for insufficient evidence
- A Pitchess Motion to have records of complaints of misconduct that have brought against the arresting officer disclosed
- A Motion to Suppress under PC 1538.5 where incriminating evidence is requested to be excluded based on an illegal search and seizure or other Constitutional violations.
The burden of proof is on the state or the District Attorney to prove each element of the offense beyond a reasonable doubt.
5. Jury trial by 12 persons—defendant may waive a jury and have the judge be the sole trier of fact.
6. If guilty, a presentence report is ordered-the defendant may be ordered to prison immediately to await formal sentencing or allowed to remain on bail before sentencing or if an appeal is filed
7. Sentence hearing at which the presentence report is considered along with any reports presented by the defense to mitigate the sentence or argue for an alternative to state prison or county jail
A “wobbler” offense is one where the DA has the discretion pursuant to the statute that defines the crime to charge the defendant with either a misdemeanor or felony. The determination is made based on:
- The facts and circumstances surrounding the commission of the offense
- The defendant’s criminal record
A defendant with a prior record of committing the same offense, or who may have other felony convictions, risks being charged with a felony for the current offense that would otherwise have been charged as a misdemeanor for someone else.
A straight felony is one where the DA has no discretion to charge as a misdemeanor. Examples of straight felonies include:
- Robbery – Penal Code 211 PC
- First degree burglary—PC 461(1)
- Possession of a controlled substance for sale—Health and Safety Code Section 11351
- Oral copulation by force—PC 288a
- Carjacking—PC 215
Wobbler offenses that may charged as either a felony or misdemeanor include following examples”
- Vehicular manslaughter—PC 192(c)(1)
- Assault with stun gun or taser—PC 244.5(b)
- Discharge firearm at unoccupied vehicle—PC 247(b)
- Unlawful sexual intercourse (statutory rape)—PC 261.5
- Spousal rape—PC 262
- Assault with a deadly weapon other than a firearm—PC 245(a)(1)
- Forgery-PC 470
Even if you are convicted of a felony, you can petition the court to have your conviction reduced to a misdemeanor, if it is a wobbler offense. By having it reduced, you may have your right to own and possess firearms restored as well as enjoy certain other civil rights that were denied you once your probation has terminated.
The main difference between a felony and a misdemeanor is the incarceration time and where the time served is spent. Misdemeanors are offenses for which incarceration is no more than one year and which time is only spent in county jail. Felonies have sentences in which the defendant faces the potential of state prison time for more than one year. Some felony sentences may be served in county jail, however.
Felonies are the more serious of the criminal offenses and generally include violent or serious crimes as indicated above. Murder can result in the death penalty or life imprisonment without parole. Most felonies have prison terms with low, mid and high terms depending on the seriousness of the crime and if you have a criminal record. If you commit a serious felony, the court can order a “strike” on your record. A subsequent felony conviction will double your sentence and could land you with a second strike. A third strike will incarcerate you for 25 years to life.
Few people who commit misdemeanors are sentenced for the maximum term of one year unless they have an extensive criminal record or committed a serious crime that had some mitigating factors so that they were not charged with a felony. Fines for a misdemeanor are generally in the hundreds of dollars and up to $1,000 for most misdemeanors though some do have fines of up to $2000. Other court costs and assessments can run you up to more than $1,000 more.
Examples of a misdemeanor include:
There are degrees of misdemeanors as well and are termed either as gross misdemeanors or aggravated misdemeanors. Examples of aggravated misdemeanors are:
For these offenses, the court may impose a mandatory minimum sentence pursuant to statute and/or require a fine up to $2000 in some cases. All jail time is served in county jail and may not be for more than one year.
You are entitled to have the court appoint an attorney to represent you if you are indigent or low income if you face any charge that has the potential for you to be incarcerated, including misdemeanors.
Finally, the collateral consequences of a felony versus a misdemeanor conviction can be substantial in regards to employment, public licensing, housing, running for public office, immigration and the right to own and possess firearms. Although you can still face some impediments in these areas, your civil rights are not affected.
Felonies are punishable by a term in state prison for more than one year though there are circumstances where a defendant is sentenced to probation and a suspended sentence, probation and community service. Felons can also be sentenced to formal probation and time served in county jail, probation only, or have the prison sentence served under a home monitoring system.
California felonies have low, mid and high term sentences. For example, for a felony conviction under Penal Code 246–Shooting at an Inhabited Dwelling or Occupied Vehicle, you face a low term of 3 years, a mid term of 5 years and a high term of 7 years in state prison.
For any other felony for which no prison term is set, the sentence is 16 months, 2 or 3 years in state prison along with a fine up to $10,000 unless otherwise stated. If the statute pertaining to the offense states that the sentence is pursuant to PC 1170(h), the sentence is to be served in county jail, otherwise it is in state prison. This is relevant for record expungement purposes.
First degree murder is a capital offense for which the death sentence may be imposed or life imprisonment without the possibility of parole. For serious violent felonies such as rape, kidnapping and robbery or assault with a machine gun, you will receive a strike on your record under PC 667. A second strike will result in your sentence being automatically doubled. A third strike is an automatic term of 25 years to life.
For certain felonies, there are diversionary programs where if successfully completed, the defendant can have the charges dismissed. This is true for certain first and second drug offenses where these cases are heard in drug court where intensive treatment is the goal. In other matters, diversion or deferred entry of judgment, is offered where the defendant does enter a guilty plea that is withdrawn if the drug program is successfully completed and the charges dismissed.
The consequences of a felony conviction on your life is substantial. Unless you can obtain an expungement, which in and of itself does not totally restore all of your civil rights, you will face considerable obstacles in finding suitable employment and housing among other difficulties.
These obstacles include the following:
- Disclosure of conviction in housing applications
- Disclosure in employment applications
- Ineligibility for professional licenses such as a license to practice law or as a real estate salesperson or broker, physician, dentist, physical therapist, nurse, social worker, pharmacist or teacher and customs broker
- A requirement for certain sex offenses to register as a sex offender for an indefinite period or for life-you are also not allowed to live within 2000 feet of a school or park
If you already have a professional license, most licensing bodies will either suspend or revoke your license. You are entitled to a hearing on any suspension or revocation but if the felony offense relates at all to the duties, qualifications or functions of the license, the revocation or suspension will be upheld.
Employers regularly conduct background checks but are restricted unless the law permits it for certain positions:
- Law enforcement
- State department
- Access to cash totaling $10,000
- If it provides access to confidential information or trade secrets
- If otherwise required to be provided such as for working with small children
Generally, employers may ask you about felony convictions but not if it was expunged. No inquiries can be made regarding arrests that did not lead to a conviction, arrests that led to drug diversion and dismissal or for juvenile arrests or sustained petitions. You will not get a position in law enforcement with a felony record.
Federal employers are encouraged to not use an applicant’s felony record as the basis for denying employment but you will be denied employment at the following jobs either permanently or for a specific time:
- Insurance companies
- Defense contractor or subcontractor
- Labor unions or organizations
- Commodity trading
You might be able to allege a violation of California’s anti-discrimination laws if you were denied employment based on race, color, religion, creed, sex or national origin regardless of your criminal record.
Landlords also routinely use criminal background checks and will generally deny you a unit if you have a felony record
Although you are generally not allowed the right to vote in any local, state or national election while incarcerated, on parole or subject to supervision, California automatically restores this right when you have completed all terms of your sentence and probation.
No one with a felony conviction may serve on a California jury unless you receive a Certificate of Rehabilitation or a Governor’s Pardon.
You are prohibited from serving in any branch of the US military unless you receive a waiver from the Secretary of Defense. If you did serve, your pension, if any, may not be paid to you within the first 60 days of incarceration though your family may receive it.
You must disclose your felony conviction if applying to run for elected or public office- you may not run if the felony involved:
- Malfeasance in office
- Embezzlement of public funds
- Falsifying public records
- High crimes and misdemeanor pursuant to the US Constitution, Article VII, Section 8
No one convicted of a felony is permitted to own or possess a firearm. You can only have this right restored to you if you do the following:
- Move to have your felony reduced to a misdemeanor
- If granted, you can move or petition the court to have the charge dismissed under PC 1203.4
- Or, apply for and receive a Governor’s Pardon
Felony convictions present special dangers to those individuals who are not US citizens. If you are in the US legally and commit a felony, you are subject to deportation if it is a deportable offense. These typically refer to aggravated felonies but may also include drug offenses. The most common deportable offenses include:
- Domestic violence
- Firearms convictions
- Controlled substances violations
- Crimes of moral turpitude
Aggravated felonies or crimes of moral turpitude include murder, robbery, assault with a deadly weapon or firearm, financial crimes, possession of illegal substances for the purpose of sale, drug trafficking, rape, sexual misconduct with minors and crimes of fraud.
There ae 35 different offenses and categories of aggravated felonies that qualify as deportable offenses under INA Section 101(a)(43).
There are 20 conviction based grounds for deportation and 52 overall.
Under Penal Code 1203.4, convictions for various felony convictions are eligible for expungement. In many cases, an individual convicted of a felony is ineligible for an expungement if they served time in state prison. There are instances, however, where a defendant is only sentenced to probation and/or some time in county jail, community service or home monitoring. Some felonies do allow all of the time served to be in county jail instead of state prison. If this is the case, then you may be eligible to have your felony conviction expunged.
There are some limitations on what a felony record expungement accomplishes. For example, an expungement does not result in the complete destruction or erasure of your conviction record, but it does limit its access to law enforcement and court personnel. Generally, no member of the general public, including private employers and individuals, can see your record of conviction if they perform a criminal background check.
The major benefit of an expungement are:
- You can now state under oath with no fear of committing perjury that you have never been convicted of that particular crime
- You may also state on any employment application or rental application that you were never convicted of a crime
- A professional licensing organization will look more favorably on your application or will now consider it in most instances
- Makes you eligible for certain public benefits including CalFresh
- Restores your eligibility for student loans if it was a drug conviction
You do have to disclose your conviction, along with the fact that it was expunged, under the following circumstances:
- When applying for a professional license or for public sector employment
- Before running for public office
- If applying for a license or contract with the State Lottery Commission
Should you commit another felony, your expunged conviction can be used as a priorable offense to enhance any sentence you receive if you are convicted of the current offense.
A probation violation, however, does not necessarily mean that you are no longer eligible. If the violation was for a minor offense such as failing a drug test or for drinking in a bar that you were prohibited from doing, then you likely will not have your petition rejected. In any event the court will review your overall criminal record and your need for the expungement order to help you find employment and support your family.
When applying for expungement you can also file these documents before you file your Petition for Dismissal:
- A motion to grant early termination of your probation
- A motion that your felony conviction be reduced to a misdemeanor if the offense was a wobbler under PC 17(b)(3).
You should attach a declaration stating how your life has changed since your conviction, regarding training and education you have received since your conviction and how your record has limited you in seeking suitable employment or advancement in your career or housing.
Having the offense reduced to a misdemeanor, if a wobbler, will restore your right to own a firearm. It will also make it easier for you to obtain a professional or public license. You need not disclose the expunged conviction if it was a misdemeanor, rather than a felony, on other matters.
Also, you can still file the Petition for Dismissal even if you have to wait after serving the total term of your probation and your conviction is not reduced to a misdemeanor.
All documents regarding the expungement must be timely served on the DA and probation department to give them an opportunity to contest it. The DA or probation office will not challenge your petition unless there is an obvious disqualifying factor or circumstance. If granted, you will receive an Order of Dismissal.
Certificate Of Rehabilitation
The alternative for felony convictions for which state prison time was served is to petition for a Certificate of Rehabilitation. You generally must wait a minimum of 7 years after you completed all conditions of your sentence and probation and have resided in California for at least 5 years.
However, if you have not reoffended and can demonstrate evidence of sound character such as being employed or having participated in some form of community service, you can move the court to waive the 7-year waiting period in the interests of justice.
Court appearances are generally required to enable the court to question you about your activities and conduct in the years since you were released from prison.
A Certificate of Rehabilitation has the following benefits:
- Qualifies you to apply for a Governor’s Pardon
- Does not permit public employers to automatically disqualify you if considered for employment based on your conviction absent other factors
- Provides significant court-approved evidence of rehabilitation that potential employers, landlords or schools may consider
What a Certificate of Rehabilitation does not do:
- Your conviction may still be used to enhance any sentence if you do commit another felony offense
- It does not reinstate your right to possess or own firearms
- You have to disclose your conviction if running for public office or applying for public employment
- Disclosure is required if applying for a contract or licensing with the State Lottery Commission
If you are able to obtain a Governor’s Pardon, however, it will restore all of your civil rights including the right to own and possess firearms.
The following links have information on the criminal court process:
For general questions please leave them in the comments below and we will answer them.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.