There are three categories of offenses in California: those that are punished as a felony, misdemeanor, or an infraction. A felony is a crime which is punishable by death or imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. Infractions are not punishable by imprisonment unless to satisfy an infraction fine. Often, however, a criminal statute prescribes a punishment for a specific offense as either local time in a county jail or the state prison. In such situations, the prosecution has the discretion to charge them as either felonies or misdemeanors. Such offenses that can be prosecuted as either misdemeanors or felonies are commonly called “wobblers.”
When an individual is convicted of a “wobbler” offense, and is granted probation without the imposition of a sentence, his or her offense is deemed a felony unless it is subsequently reduced to a misdemeanor by the sentencing court. The court’s discretion to reduce a felony to a misdemeanor is not abrogated by California’s “three strikes” law. This means that the trial court may still reduce a conviction for a “wobbler” offense to a misdemeanor to avoid sentencing an individual under the “three strikes” law as a qualifying prior. At the same time, though, the court’s discretion to reduce a “wobbler” offense does not include the power to relieve the defendant of the duty to register as a sex offender pursuant to the Sex Offender Registration Act.
Reduction of a felony offense to a misdemeanor can be done either on the court’s own motion or on that of defense counsel. The prosecution’s consent is not required for the court to reduce a “wobbler” offense to a misdemeanor conviction. As a result, the trial court usually decides such requests by reviewing motions filed by defense counsel. Usually, the court looks to sentencing factors to decide whether reduction a felony to a misdemeanor is permitted. If the court reduces a felony offense to a misdemeanor, it is treated so for all purposes except that it retains the felony statute of limitations. Hence, it is critical to contact an experience criminal law attorney, who can provide accurate legal advice as to the possibility of reducing a particular “wobbler” offense to a misdemeanor.
This office handles all types of matters related to reduction of a felony offense to a misdemeanor, expungement, certificate of rehabilitation, governor’s pardon, or sealing arrest records in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com.
For more information on clearing a criminal record, see the following:
Clearing a Criminal Record
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