When Is a Felony Not a Felony? Wobbler Offenses Explained

When Is a Felony Not a Felony? Wobbler Offenses Explained

Nicole Shein
Nicole Shein
 | 
What do Schrödinger’s cat and California law have in common? Just as the feline in the famous thought experiment is simultaneously both alive and dead, there is a category of criminal offenses that can be said to exist as both a felony and a misdemeanor. Only when the state brings charges does a wobbler become officially classified as one or the other. Afterward, its trajectory of due process and punishment can be charted. 

Unlike Schrödinger’s cat, however, wobbler crimes aren’t just a hypothetical exercise but are firmly rooted in the reality of law. What’s more, their classification has a significant impact on any and all persons involved. Read on to find out which charges are considered wobblers in California, who makes the decision, and what ramifications remain once the wobbling is over.

A Very Quick Intro to Wobbler Offenses 

In legal parlance, a “wobbler” is a criminal offense that can be classified as either a misdemeanor or a felony. This decision depends on the circumstances of the crime and the defendant’s prior criminal record. Moreover, it determines the trajectory of due process, the severity of sentencing, and the ramifications that result for both defendant and victim. A wobbler offense can come into play during plea bargains; it also opens the door for post-conviction expungement of the crime from the defendant’s record. It is the prosecutor who initially determines whether the offense in question will be charged as a felony or misdemeanor. The judge, however, has the ultimate discretion to re-classify a wobbler offense at sentencing.  

What Offenses Are Wobblers in California?

Common offenses that are considered wobblers in California include (but are not limited to): 
  • Elder abuse
  • Brandishing a weapon
  • Assault with a deadly weapon
  • Bringing a firearm, knife or deadly weapon to a courthouse
  • Violation of a protective order
  • Participation in criminal street gang activity
  • Vehicular manslaughter, w/o drugs or alcohol, but w/gross neg
  • Threatening a juror following a verdict
  • Felony accessory after the fact
There are many other wobblers on the books. Accused persons who think their charges may be wobblers are advised to consult with an attorney.

Felonies vs. Misdemeanors: What Are the Differences?

One crucial difference between felonies and misdemeanors concerns incarceration. Misdemeanors in the state of California are punishable by up to $1,000 in fines and up to one year’s confinement in county jail. Defendants found guilty of a felony face much harsher consequences, of course; while some felonies allow for a jail sentence, others are punishable with prison time. Where the defendant serves a  sentence depends on their previous criminal record, the severity of the current offense, the degree of violence that accompanied the crime, if any, and whether the offense meets the criteria outlined in the Public Safety Realignment Act under California Penal Code § 1170.

Misdemeanor convictions are generally associated with lighter sentences overall—not just a shorter time spent incarcerated, but also a less-stringent probationary period and potentially lower fees.

Of course, any conviction is undesirable, but misdemeanors can be easier to swallow than felonies thanks to additional aspects of punishment that attach to the latter. Having a felony conviction on one’s record will show up on a background check and can affect voting rights, gun ownership rights, obtaining certain professional licenses, attempts to find housing or employment, and the ability to secure a bank loan. 

Determining Factors Used to Classify Wobblers

Like almost every other aspect of American legal procedures, classifying a wobbler crime one way or the other requires tremendous consideration. Prosecutors must take under advisement a multitude of factors, such as:
  • The defendant’s age
  • How serious and/or violent the crime was
  • The victim’s age, profession, or status
  • Whether deadly weapons were used in the commission of the crime
  • Whether drug or alcohol use took place before or during the commission of the crime
  • The defendant’s criminal background
  • The defendant’s eligibility for probation
  • How strong the case is from a prosecution perspective
  • The defendant’s level of cooperation with law enforcement in the wake of the crime
  • How likely the defendant is to re-offend

In addition to these mitigating factors, a prosecutor has the discretion to reduce felony charges to misdemeanors in certain circumstances that don’t directly involve the defendant. For example, new evidence may come to light, a new witness emerges, a current witness’s credibility is in doubt, or a court ruling excludes evidence. 

The number of variables involved in charging a wobbler offense means that it’s very difficult to define a typical or average outcome. Each case is considered entirely on its own criteria.

Wrapping Up

The leeway provided by wobbler offense means far-reaching ramifications for society at large, as well. Misdemeanors are less expensive from a taxpayer perspective and can mitigate the burden on already crowded state prison facilities. Discretionary wobbler crimes also free up legal and penal resources that can then be allocated to fight crime before it starts, punish the most violent and dangerous criminals, and minimise recidivism.

If you have been accused of an offense that falls under the umbrella of wobblers, let LawChamps connect you with an attorney who’s experienced in this particular aspect of California law. 


This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
Nicole Shein

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