What's a Wobbler? Can a Felony Be Changed to a Misdemeanor?

There are several common offenses that a prosecutor can choose to charge as either a felony or a misdemeanor, depending upon the facts of the case and the defendant’s criminal history.  In other words, the charge can “wobble” between a felony and a misdemeanor.

For example, spousal battery (Penal Code § 273.5), criminal threats (Penal Code § 422), burglary (Penal Code § 459), elder abuse, forgery, embezzlement, sexual battery (Penal Code § 243.4), lewd acts with a minor (Penal Code § 288) and assault with a deadly weapon (Penal Code § 245(a)(1)) can all be charged as a felony or a misdemeanor.  

When one is charged with a felony that can also be charged as a misdemeanor and one was sentenced to probation or jail less than one year (not prison), one may ask the judge to reduce the charge to a misdemeanor under Penal Code § 17(b).  Alternatively, for a relatively small number of felonies that are not considered “wobblers,” the judge can sentence the individual to county jail under Penal Code § 18, making the conviction a misdemeanor instead of a felony.

There are countless reasons one may need a felony conviction off one’s record.  It might be because it is tough to get a job, a loan or rent a place to live with a felony record, or a state licensing board may refuse to issue a license in certain professions to one with a felony record, or you wish to serve on a jury.  You may also want to own a firearm, even if the reduction merely reclassifies the offense as a misdemeanor that carries with it a ten year ban owning a firearm (Penal Code § 12021).  

Most importantly, when a judge reduces a felony to a misdemeanor, one can legally state thereafter that he or she has never been convicted of a felony.  Once an offense is reduced to a misdemeanor and one has successfully completed all terms of probation, expungement of the conviction is available.  

When a judge considers reducing a felony to a misdemeanor, an analysis will be made concerning your criminal history, your personal history, your following all terms of probation and most importantly, the circumstances of the crime, especially those in aggravation or mitigation.

Reducing a felony to a misdemeanor does not completely free one of every consequence of a having a felony conviction, even previously, in every type of crime.  For example, if the offense was a strike offense, as defined under Penal Code §§ 667(b) to (j) or 1170.12, the individual will keep a strike on his record for sentence enhancements in the future, if he is convicted again.  Relief under Penal Code § 17(b) does not lift one’s obligation to continue to register as a sex offender if the underlying offense required this.  And if one is a lawyer, the State Bar of California considers a felony conviction a felony conviction forever, regardless of whether any judge reduces the offense to a misdemeanor later.

For more information about being in court, click on the following articles:
  1. What Is the Difference Between a Misdemeanor an Infraction?
  2. What Is an Arraignment?
  3. Prison Sentence?  It May Be Served in County Jail Under a New California Law
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