What is a Wobbler?
The legal definition of a wobbler is an offense that may be charged either as a misdemeanor or a felony in the discretion of the prosecution based upon the circumstances of the crime and the background of the accused.
Wobblers are treated differently by a judge than felonies or misdemeanors. A wobbler is chargeable as a felony, and if the accused does not have a prior felony conviction, have served some time in prison, or if the crime did not cause serious or great bodily injury, a judge has more discretion in sentencing a person for a wobbler than for either a felony or misdemeanor . If a defendant has no prior criminal record, a judge may grant several alternative punishments such as community services (if it is a minor property crime), probation, restitution or sometimes even had a charge dismissed altogether.
A judge may reduce a felony wobbler to a misdemeanor such as in the case of Beverly Hills socialite Ester Louiza. She was arrested for battery after hitting a man with her rolling suitcase at LAX airport and was later arrested for violating an order of protection and battery after she hit another woman at the airport. Her original felony battery charges were reduced to a misdemeanor with a subsequent three year restraining order against her.
The Legal Definition of Wobblers
When considering whether a crime is a wobbler, many factors can come into play. There is actually no specific chapter or definition in the California criminal law handbook with a literal black and white definition of what a wobbler crime is. The closest thing to a description of a "wobbler" is found in California Penal Code section 17(b). It simply states, "When a crime is designated by this code either as a felony or as a misdemeanor, it is a felony or a misdemeanor in the discretion of the court." (Pen. Code Section 17(b).)
To put this in more simple terms, most wobbler crimes are essentially felonies for most purposes…but they can be treated as misdemeanors under some circumstances. For example, "arson of property" is a wobbler crime. Arson of property typically is a felony punishable by time in prison. However, if a person is charged with arson of property, they may plead guilty or no contest to a charge of misdemeanor arson of property. The consequences of a plea will be limited to misdemeanor terms. The only way a misdemeanor plea to a wobbler crime can later result in felony punishment for that crime, is if you are convicted of another wobbler crime in the future. (Pen. Code Section 17(b).)
For some wobbler crimes, the prosecutor has to decide whether to officially designate it a felony or misdemeanor by placing the filing in a superior or municipal court in California. Certain crimes listed by the California penal code are considered "wobblers". These include the following:
Arson of Property (Penal Code Section 451) Being a felon in possession of a firearm (Pen. Code Section 12021) Collateral theft (Pen. Code Section 487b) Domestic battery with serious bodily injury (Pen. Code Section 273.5 (f)) Felony drunk driving (Pen. Code Section 23152(b) Felony infractions (Pen. Code Section 19) Felony marijuana possession for sale (Health and Safety Code Section 11359) Felony statutory rape (Pen. Code Section 261.5(d) Leaping from a vehicle in motion (Pen. Code Section 2800.3) Misdemeanor possession of a controlled substance (Health and Safety Code Section 11375(c)) Misdemeanor public intoxication (Pen. Code Section 647 (f)) Misdemeanor vandalism (Pen. Code Sections 594, 594.1) Receiving stolen property (Pen. Code Section 496(a)), Prisoner possessing a controlled substance (Pen. Code Section 4573(a) Identity theft – fraudulently using personal identifying information (Pen. Code Section 530.5(a)) Identity theft – possessing personal identifying information belonging to 10 or more people with the intent to defraud (Pen. Code Section 530.5(b)(c)(d)) Unlawful carrying of a firearm while the driver of a vehicle (Pen. Code Section 12025(a)(4)) Unlawfully permitting one’s vehicle to be used as a mobile billboard (Pen. Code Section 22454) Unlawfully providing a false statement to a police officer (Pen. Code Section 148.9) Driving when license is suspended or revoked (Pen. Code Section 14601) Felony driving when license is suspended or revoked (Pen. Code Section 14601.2)
Prosecutors have wide discretion in classifying a wobbler. Many prosecutors are too quick to use felonious charges for minor offenses. In our next section, we will discuss in what ways a defendant can reduce the possible punishment for a wobbler crime.
Wobblers and Criminal Proceedings
A wobbler does not automatically translate into a felony conviction, so that begs the question of how a wobbler offense is treated in the court system.
Prosecutors have discretion to file wobblers as misdemeanors or felonies. In deciding whether to file felony charges, considerations for the prosecution include whether the case will allow appropriate plea negotiations for less serious charges, and whether the prosecution can improbably achieve a felony conviction. The prosecution also looks to the defendant’s background, current criminal situation, and criminal history.
When deciding whether to reduce felony charges to misdemeanors, the prosecution again has to take into consideration the circumstances of the defendant. If a defendant has a clean record and is otherwise cooperative, a prosecutor may consider reducing the charges. In addition, if the defendant poses no danger to society, the prosecutor may be more likely to reduce the charges to a misdemeanor.
Ultimately, it is up to the judge to decide the final charge. When considering a wobbler, a judge takes into consideration all aspects of a case, including the weight of the evidence. If the evidence strongly supports a felony charge, even if the prosecutor considered a plea bargain, a judge may still proceed with felony charges.
Prior to sentencing, those in the California court system have a wide variety of options to work with the prosecutor and the judge to have felony charge reduced to a misdemeanor.
The Wobbler Sentencing Process
Additional factors also go into whether someone is charged with a wobbler or a straight felony. While people never know what they may be charged with before speaking with an attorney, a prosecutor will make a decision based on many things, including criminal history. If you have been charged with a new offense and have previous convictions on your record, how long ago those convictions were and the nature of them can all influence the charges against you. Attorney Judy Greene, from Templeton & Greene, PLLC represents clients in Orange County, and several other Southern California areas, with all types of criminal charges, including felonies and misdemeanors.
While your previous criminal history is one factor, the nature of your alleged crime is an additional factor in how the prosecutor chooses to charge you. Of course there are exceptions to this rule, but generally speaking, the more serious the alleged crime, the more likely a prosecutor is going to attach a felony charge to it. A theft charge of $950 or less these days in California is automatically charged as a misdemeanor. If the alleged crime involved theft of a firearm, then the charge will be elevated to a felony.
Even with these more cut-and-dry examples, keep in mind that if you are being charged with a third misdemeanor for theft, the prosecutor may add a felony charge to your record if you have a violent history in addition to your recent thefts. As always though, it is best to consult with an experienced criminal defense lawyer about your particular case and what they would recommend.
Wobbler Offense Impacts
It is crucial to understand that a misdemeanor wobbler out of Nevada will carry with it a permanent record in California. Also, the penalties for a misdemeanor are up to 6 months in jail and a fine of $1,000.
Prior to 2019, a wobbler in California could be charged as either a felony or a misdemeanor. For a misdemeanor wobbler, the penalties are similar to the penalties for a misdemeanor crime in California. For a felony wobbler, the penalties typically match the penalties for the felony version except in the following circumstances (PC 1170(h)): Proposition 47 was passed in 2014 and amended the penal code so that non-violent crimes would have felony-level charges reduced to misdemeanor-level charges, unless certain factors were met. The most common charge brought under PC 1170(h) is of course petty theft, but the law also applies to other crimes like receiving stolen property or shoplifting .
The 2019 California legislative session passed and Governor Newsom signed AB 142 to allow sentencing on a wobbler charge to be modified by probation. Under 1170(h), the court may "impose any sentence that does not exceed the middle term for a felony and may then recommend probation." Probation here is important. It allows the defendant to avoid incarceration if they have no prior history of other violent or serious crimes. And even if they do, probation is sometimes possible if the judge or court finds there are mitigating factors.
In that sense, the prosecution’s decision to reduce a felony charge down to a misdemeanor can carry greater significance than the court’s decision on whether to grant a felony or misdemeanor charge. And even when the court chooses the misdemeanor, the new law allows the judge to reduce the punishment even further by allowing for probation.
Wobbler Defense Strategies
The consequences of being charged with a wobbler can be serious, so it is important to understand some of the basic principles involved when defending against these types of cases. You need to remember that even though the law allows for felony charges to be filed in some instances and misdemeanors in others, the prosecutor has the ultimate power to determine what level of offense is suitable. This gives the prosecutor significant discretion at all stages of the case, whether it is at the time of charging or during later plea negotiations. Experienced attorneys know how to effectively use this fact to up your chances of achieving a positive outcome in your case.
One of the best methods of keeping a felony from being filed against you in a wobbler case is to engage in settlement discussion aimed at convincing the prosecution that a felony if filed could result in a loss at trial. There are a number of ways to do this, such as by showing that there were no injuries as a result of the conduct, that the act did not involve any threatening behavior, or that there was no intent to commit a more serious offense. It is usually best to work with an attorney who knows how to negotiate with the prosecution.
Keep in mind that there may be numerous positive factors you can present to convince the prosecutor to reduce your charge to a misdemeanor or to dismiss the charges altogether. The person facing charges in the 2012 case of convicted felon Daniel L. Jones was able to prove to the prosecutor that he had gone straight while living in Arizona for a number of years and was successful in having his felony drug charge reduced to a misdemeanor in exchange for a guilty plea and a deferred sentence.
Another example is the 2010 case of a man arrested on felony assault charges arising from a road rage incident. The man was assisted by attorneys who met with the prosecutor to discuss the facts of the case, including the fact that he did not initiate the incident, but rather was an innocent party who quickly became a victim. As a result, the prosecutor agreed to reduce the felony to a misdemeanor.
In involving wobbler offenses, it is especially important to work with an experienced criminal defense lawyer who knows the applicable laws, how to work with prosecutors and how to build an effective defense.
Changes and Trends in the Law as to Wobblers
In recent years, there has been a growing recognition of the need for reform in the judicial approach to wobblers. Some reform efforts have focused on establishing clearer definitions and guidelines for wobbler designations, while others aim to provide greater transparency in the application of wobblers. These developments indicate a shift towards a more equitable treatment of such offenses. One significant trend is the move towards providing alternative sentencing options for wobblers that would allow offenders to avoid incarceration while still serving as the function of deterrence and rehabilitation. This is seen in some first-time nonviolent DUI offenders who are permitted to enter DUI educational programs in lieu of a prison sentence. Legislators have also considered capping the maximum term for wobbler offenses , which would provide greater clarity for judges adjudicating wobbler offenses. Additionally, some states are reexamining the classification of certain offenses as wobblers, reevaluating the validity of the practice for many low-level offenses. For example, while burglary is a serious crime and it can result in a felony charge in some cases, the crime of petty theft may not warrant this classification. These changes reflect a broader trend toward more equitable and just legal practices, including an increased focus on rehabilitation rather than punishment, especially for nonviolent or less serious crimes. While wobblers remain a complex issue, they are subject to the changing nature of the law as legislators and courts look to better serve the best interests of all involved.