A wobbler offense is a crime that can be charged and punished as either a felony or a misdemeanor. In these types of cases, it is up to the prosecuting attorney to decide how to charge the defendant, and up to the judge to decide how to sentence the defendant. Additionally, if convicted on wobbler charge, the defendant may petition the court and have their felony conviction reduced to a misdemeanor.
Which Cases Qualify As Wobbler Offenses?
There are hundreds of crimes in California that are considered wobblers. Among the most common are sex crimes, domestic violence, and fraud crimes.
How Do You Get Charged With Wobbler Crime?
Because California law does not stipulate how to charge wobbler crimes, the job of determining whether to file a wobbler offense as a felony or misdemeanor is placed upon the prosecutor. To decide, prosecutors consider an array of different factors and often refer to The California District Attorneys Association’s crime charging standards, which look at:
- The cooperation with law enforcement
- How old the defendant
- The seriousness of the offense
- The defendant’s prior criminal record
- How likely it if for the defendant to commit crime again
- The defendant’s probation eligibility
- How strong the prosecution’s case is
When Do Judges Reduce A Wobbler to a Misdemeanor?
Under Penal Code 17, judges too reserve the right to reduce a felony wobbler charge to a misdemeanor and may do so either:
- During the preliminary hearing,
- During sentencing, or
- After sentencing, once the defendant has filed a petition to reduce their felony conviction to a misdemeanor conviction.
It is important to note that in a wobbler cases, judges have the final say and may sentence the defendant regardless of how the prosecutor chooses to charge the crime.
This means that if the prosecutor charges as a felony, the judge can choose to punish the case as a misdemeanor. However, this only occurs if mitigating circumstances are present. Such circumstances lessen the guilt of an offender and encourage the judge to be less aggressive in their ruling. Common mitigating factors include:
- The defendant having no prior or significant criminal record
- The defendant playing a minor role in the crime
- The defendant recognizing the error of their ways
- The defendant making restitution to the victim
Getting Your Wobbler Expunged
Those convicted of either a wobbler felony or misdemeanor offense may have the option to expunge the conviction from their record. To qualify for expungement, the defendant:
- Must have completed their probation, and either:
- did not serve time in state prison for their crime, or
- served time in a state prison for a crime that would now be served in a county jail under the revisions proposed by the new Proposition 47 legislation.
In addition, cases involving child sex crimes are not expungable.
If the defendant files a petition and the court grants their expungement, their conviction will be sealed and will no longer exist in the eyes of the law. More importantly however, once their conviction is expunged, they are no longer required to tell employers when applying for jobs. Getting a wobbler expunged is life changing
What is a Wobblette?
A wobblette is an offense that can be charged or sentenced as either a misdemeanor or an infraction.
An infraction is a non-criminal charge that can be punished by a fine, but no jail time. In California, most infractions lead to a fine of up to $250.15
Wobblettes work in the same manner as wobblers. The charge can be changed to an infraction if:
The prosecutor changes the charge at the time, or
The judge during sentencing changes it down to infraction.
Work With A Post-Conviction Attorney That Understands
When looking for an attorney make sure you find one that has a strong post-conviction background. You want to make sure that the attorney you hire will be able navigate the practice areas of criminal appeals and post-conviction relief. Post – conviction law differs from other areas of the law and your trial lawyer may not be able to take the objective view needed.
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