A person’s criminal history may be a deciding factor in the prosecutor’s decision.
Watch this video to understand how a prosecutor may decide between a misdemeanor or felony.
When a defendant is arrested, it is up to the prosecutor to charge or not to charge the person with one or more offenses.
If the offense can be charged as a misdemeanor or felony, a prosecutor will consider any mitigating or aggravating circumstances.
- Was the defendant convicted of a prior or similar offense?
- Was the defendant’s role in the offense a minor or substantial one?
- Had the defendant been engaged in criminal conduct for a long time and is likely to re-commit an offense in the future?
- The age of the defendant
- Whether probation is permitted
- Did the defendant cooperate with the police?
Prosecutors can also use their discretion to reduce the offense to a misdemeanor if they wish to resolve the case short of trial or new facts or events that have come to light that minimizes the role of the defendant or cast some doubt on the defendant’s guilt.
This might include:
- A statement from a new witness,
- Loss of a witness,
- Exclusion of evidence in a court ruling, or
- Doubt as to the credibility of a key prosecution witness.
But even if you are charged with a felony, you may have options to have it reduced to the lesser status at a later stage in your case.
Defendants can petition the court to reduce their felony conviction if it is a wobbler to a misdemeanor once they have successfully completed probation1.
There are 3 requirements under Penal Code §17b to seek a reduction of your conviction to a misdemeanor:
- The offense qualifies as a wobbler
- You did not serve any time in state prison
- If convicted of multiple felonies in the same case, all of the felonies must have been wobblers or none may be reduced
Also, there may be certain restrictions that remain regardless if your conviction was reduced to a misdemeanor.
For example, if your offense was a serious felony it could still be considered a “strike” under California’s Three Strikes Law3.
Under this law, a second strike doubles your sentence, and a third result is a mandatory sentence of 25-years to life.
Further, if you were required to register as a sex offender when convicted, the change of status to a misdemeanor does not remove this requirement.
A judge has the discretion to reduce your charge to a misdemeanor regardless of the prosecution’s wishes at
- The preliminary hearing stage,
- At your sentencing, or
- Following the completion of your probation if you requested.
The judge will also consider factors similar to those from the prosecution’s perspective.
- Your criminal history—are you a repeat offender, had minor offenses in the past, or are there violent and serious convictions?
- Did you successfully comply with all the terms of your probation?
- Are you employed, volunteering, or otherwise being a productive citizen of the community?
- The nature or severity of the offense you are seeking to have reduced
- Were you a minor character in the commission of the offense?
- Are you unlikely to commit further crimes?
Once the conviction is no longer a felony, your 2nd Amendment gun rights and other civil liberties are restored.
Expungement4 is a post-conviction, legal relief procedure where your arrest and conviction records are rendered inaccessible to the public including employers, landlords, or anyone else conducting a criminal background check on you.
An expungement is available for the majority of wobbler offenses.
To qualify, you must meet certain requirements:
- You have successfully completed probation
- You did not serve time in state prison
- Or if you did serve time in state prison, it was for an offense that under Proposition 47 would now be served in county jail
What Are Some Examples Of Wobblers?
Wobblers include the following offenses:
- Assault with a deadly weapon (Penal Code § 245 (a)(1))
- Statutory rape (Penal Code §261.5)
- Sexual battery (Penal Code §243.4)
- Burglary (Penal Code §459)
- Vehicular manslaughter (Penal Code §192(c)(1) and (2))
- Child endangerment (Penal Code §271)
- Lewd acts with a minor (Penal Code §288)
- Making criminal threats (Penal Code §422)
- Forgery (Penal Code §470)
- Grand theft (Penal Code §487)
- Stalking (Penal Code §646.9(a))
- Participation in a criminal street gang activity (Penal Code §186.22(a))
- Bringing a loaded firearm into a state office, capitol, legislative office (Penal Code §171(c))
- Battery against a peace officer/firefighter/paramedic with injury (Penal Code §2439C))
- Felony DUI5
Consult with your defense attorney to see if your criminal offense is a wobbler and whether you are being charged with a felony.
If you have been convicted and served your time, see if your probationary period can be shortened and if your conviction is eligible for expungement.
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.