What is a Wobbler?
Under California law, a “wobbler” is a crime that can be charged either as a felony or a misdemeanor. Usually, the prosecutor has the discretion of choosing, although sometimes judges may as well. And in certain instances, a defendant convicted of a wobbler felony may file a petition to change the conviction from a felony to a misdemeanor.
Why is this Important?
The opportunity afforded a defendant by a wobbler is important because of the large difference between felonies and misdemeanors.
Consequences of a Felony
A felony conviction carries a prison sentence of more than one year up to life in prison or even the death penalty. A fine of $10,000 is also possible.
However, there are other privileges and rights that can be forfeited due to a felony conviction:
Employment Status. A prospective employee must disclose some types of past criminal convictions. Omission of this can result in refusal of a job offer. Even if the person is hired, if the omission is discovered later, this can result in termination.
Professional License. If the conviction is of a crime related to the qualifications or duties required, the following is a list of some professions where a license to practice can be lost: nurse, physician, dentist, pharmacist, teacher, attorney, licensed engineer, licensed surveyor, or real estate agent.
Firearms. Purchase, possession, and use are generally prohibited.
Alcohol License. A felony conviction may be grounds for denial of a license to sell alcohol.
Armed Forces. A convicted felon generally may not enlist. And members or former members of the armed forces can lose their pensions for certain felony convictions.
These are harsh collateral consequences that can have a long-term impact on your life.
Consequences of a Misdemeanor
Misdemeanors, on the other hand, are less serious than felonies. Most are punishable by up to six months in jail or a fine of $1,000, although some carry a penalty of up to 364 days in jail.
Common Types of Wobblers, Prosecutorial Discretion, and Court Discretion
Here are some wobblers under California law:
Wobblers aren’t automatically reduced to misdemeanors. It’s usually up to the prosecutor.
While no statutory provisions exist for exercising this discretion, California District Attorneys Association has some recommended factors:
- Defendant’s prior record
- Severity of the crime
- Defendant’s cooperation with law enforcement
- Probability of additional crime by the defendant
- Defendant’s age
- Strength of the prosecution’s case.
Even if the prosecutor is unwilling to reduce the charge, the judge may do so at the preliminary hearing, sentencing hearing, or if the defendant has petitioned the court for a reduction and has completed felony probation.
A judge considers the following mitigating factors, based on the defendant’s:
- Prior criminal record
- Role played in the crime
- Acceptance of guilt
- Restitution to the victim
- Use of caution to avoid harming other people or property
- Performance in prior probation or parole situations.
Expunging a Wobbler Conviction
Sometimes it is possible to “expunge” a wobbler conviction, which means that the conviction generally ceases to exist, with these exceptions:
- Excuse the duty to register as a sex offender.
- Restore gun rights.
- Overturn a suspended or revoked driver’s license.
Convictions that have been expunged can also still be used for purposes of sentencing if the defendant commits another crime.
Most wobbler convictions can be expunged.
To qualify, the defendant has to:
- Have successfully completed probation or received an early termination of it; and
- Either not been in state prison for the offense, or been in state prison for an offense that under current law would be served in a county jail.
To successfully complete probation, the defendant must have complied with all terms of the probation, been present at required court appearances, and not committed any additional crimes while on probation.
A woblette is similar to a wobbler, except that it is an offense that could be charged as a misdemeanor or an infraction.
Misdemeanor versus Infractions
As stated above, a misdemeanor is usually punished with a jail sentence up to six months long and a fine up to $1,000. An infraction, on the other hand, is a non-criminal offense. It can generally be punished by a fine up to $250.
Unlike wobblers, a defendant must consent to the charge being reduced from a misdemeanor to an infraction. Why would a defendant do this? Well, there are several reasons.
First, a person charged with an infraction is not given a trial by jury, and is not entitled to a public defender (unless incarcerated). Second, while a misdemeanor can be punished by serving time in jail, infractions are fines. So, occasionally, the defendant will prefer to spend time in jail rather than pay a fine.
The consequences of a felony conviction can last a lifetime. If you or a loved one are charged with a felony, consider seeking legal counsel regarding the possibility of having the felony charge reduced to a misdemeanor.
Last Updated on April 19, 2023