Felony Crimes in California – Top 9 Questions Answered

In California, a felony is a crime carrying a minimum sentence of one year in custody unless you qualify for probation. Felonies are more serious than misdemeanors, which usually carry up to six months in jail.

Here are four key things to know:

1. Certain crimes called wobblers can be prosecuted as either felonies or misdemeanors.
2. Many felonies carry three possible sentences the judge can choose from.
3. The most serious felonies carry life imprisonment without parole.
4. Only certain first-degree murder cases carry the death penalty.

	Felonies	Misdemeanors
Incarceration range1	At least one year depending on the charge	Up to 6 months or 364 days, depending on the charge
Fine range2	Up to $10,000 or higher	Up to $1,000 (in most cases)
Type of probation (unless the charge is non-probationable)	Formal probation	Informal (summary) probation
Loss of gun rights	Yes	Only for misdemeanors involving domestic violence or after a second brandishing conviction
Possibility of expungement	Yes, except for serious, violent, or sex offender crimes	Yes, except for misdemeanor sex crimes against a child

Here at Shouse Law Group, we have represented literally thousands of people with felony charges and have helped reduce or sometimes dismiss their cases so their record remains clear.

To help you better understand the definitions and consequences of a felony conviction in California, our criminal defense lawyers will answer the following 8 key questions:

• 1. What is a “straight” felony?
  • Examples of “straight” felonies in California
• 2. What is a “wobbler” felony?
  • Examples of wobbler offenses in California
• 3. What is the penalty for a felony in California?
  • How long are felony sentences?
  • What is California Penal Code 1170(h) PC?
  • How does a judge decide between the low, middle and high term?
  • What are the fines for a California felony?
• 4. How does felony probation work?
  • What are the conditions of formal probation?
  • What happens if I violate my felony probation?
• 5. How does felony parole work?
• 6. Collateral consequences of a California felony conviction
• 7. Can a felony reduce to a misdemeanor?
• 8. Can I get a California felony conviction expunged?
  • What rights are restored by expungement?
  • What are the requirements for expunging a conviction?
• 9. What is the criminal procedure after a felony arrest?
• Additional resources

1. What is a “straight” felony?

A “straight” felony is one that can be charged and sentenced only as a felony. It cannot be charged as, or reduced to, a misdemeanor.

Most serious California crimes are straight felonies. These include crimes that count as a “strike” for purposes of California’s “three strikes” law.

Example: California law defines first degree burglary as burglary of an inhabited house or dwelling structure.³ First degree burglary is always a felony. It is, therefore, a “straight” felony.

Examples of “straight” felonies in California

Though not by any means a complete list, straight felonies in California include:

• Lewd acts with a child under 14 — Penal Code 288 PC;
• Murder — Penal Code 187 PC,
• Attempted Murder — Penal Code 664/187(a) PC,
• Rape — Penal Code 261 PC,
• Carjacking — Penal Code 215 PC,
• Kidnapping — Penal Code 207 PC,
• Gross vehicular manslaughter while intoxicated — Penal Code 191.5(a) PC,
• Robbery – Penal Code 211 PC,
• Sale of a controlled substance — Health and Safety Code 11352 HS, and
• Vehicular manslaughter with gross negligence — Penal Code 192(c) PC.

2. What is a “wobbler” felony?

Some California crimes may be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.⁴ These are known as “wobbler” offenses.⁵

Factors a prosecutor will consider when deciding whether to charge a wobbler as a felony or a misdemeanor include:

• The specific facts of the case, and
• Your criminal history (if any)

Example: Burglary of an uninhabited or commercial structure is considered second degree burglary.⁶ Second degree burglary is a wobbler offense. It can be punished either:

• As a misdemeanor, by up to one year in county jail, or
• As a felony, by up to three years in jail.

In our experience, it may be possible to persuade prosecutors ahead of the arraignment to press charges as a misdemeanor instead of as a felony. This way, your case will be much easier to deal and – eventually – get expunged.

Examples of wobbler offenses in California

California “wobbler” offenses that can be charged as a felony include (but are not limited to):

• Assault with a deadly weapon — Penal Code 245(a)(1) PC,
• Assault with a generic firearm — Penal Code 245(a)(2) PC,
• Domestic violence — Penal Code 273.5 PC,
• Forgery — Penal Code 470 PC,
• Annoying or molesting a child under 18 — Penal Code 647.6 PC,
• Possession of child pornography — Penal Code 311.11 PC,
• Grand theft — Penal Code 487 PC,
• Corporal injury to a spouse — Penal Code 273.5 PC,
• Sexual battery — Penal Code 243.4 PC, and
• Vandalism — Penal Code 594 PC.

3. What is the penalty for a felony in California?

Depending on the seriousness of the crime, felony sentencing in California can include:

• A county jail or California state prison sentence, and/or
• A fine of up to $10,000.

Alternatively, the judge can sentence someone convicted of a felony to felony (formal) probation. In our experience, we can usually secure a plea deal where our clients get probation without any jail time at all and with minimal conditions.

Let’s take a closer look at each of these felony punishments.

How long are felony sentences?

Felonies are usually punished by imprisonment for one of three terms:

• A low term,
• A middle term, or
• A high term.

Some criminal statutes specifically set forth these terms specifically. They also often state whether the sentence is to be served in state prison or county jail.

Example: California Penal Code 461(a) PC provides that first degree burglary is to be punished by a California state prison term of:

• Two years,
• Four years, or
• Six years.

Note that in Los Angeles County, courts must impose sentences on the low end of the penalty range absent extraordinary circumstances.⁷

What is California Penal Code 1170(h) PC?

Sometimes a felony statute does not set forth specific terms of imprisonment. It simply states that the offense may be punished pursuant to California Penal Code 1170(h) PC.

Penal Code 1170(h) PC is a catchall provision for felony sentencing. When a statute calls for punishment pursuant to Penal Code 1170(h), the judge can sentence you to a county jail term of:

• 16 months,
• Two years, or
• Three years.⁸

How does a judge decide between the low, middle and high term?

Generally, you will receive the middle felony term.

The judge will usually only sentence someone to the high term if there are factors in aggravation of the crime.⁹ Aggravating factors include the use of a weapon or a crime involving “extreme violence.”

By contrast, the low term is used when there are factors in mitigation of the crime. Mitigating factors include (without limitation) that your participation in the crime was minimal or that your criminal record was otherwise clean.

In preparation for your sentencing hearing, we prepare a detailed presentation of all the reasons why you warrant the low term. If necessary we ask for friends, family, and co-workers to speak on your behalf and/or send letters to the judge.

What are the fines for a California felony?

Punishment for a California felony can include a fine. Sometimes the fine is set forth in the statute defining the crime. Where the amount is not specified, the judge can impose a fine of up to $10,000.

This fine can be either in addition to — or instead of — time in jail or prison.

In most of our cases, we can secure a plea deal where you pay a fine and do no prison at all.

4. How does felony probation work?

Judges have the discretion to convert all or part of your sentence to California formal (felony) probation.

Felony probation is designed to rehabilitate you and let you lead a law-abiding life. It allows you to serve most or all of your sentences under the supervision of a probation officer rather than in custody.

Technically, a sentence of formal probation can include up to one year in county jail. But in practice, people sentenced to formal probation in California often serve little to no jail time.

Note that in Los Angeles County, courts must grant probation in probation-eligible felony cases absent extraordinary circumstances.¹⁰

What are the conditions of formal probation?

Felony probation usually lasts up to two (2) years for non-violent felonies. But probation can last up to three (3) years for the following crimes involving more than $25,000:

• Grand theft (PC 487(b)(3))
• Embezzlement (PC 503)
• False personation and cheats (PC 532a)

These two- or three-year probation limits do not apply to violent felonies or to crimes whose statutes specify the probationary range.¹¹

During probation, you must comply with certain conditions. These conditions often include (but are not limited to):

• Monthly meetings with a probation officer,
• Payment of victim restitution,
• Individual or group therapy,
• Anger management counseling,
• Drug testing (if the felony involved a California drug crime),
• Community service or labor, and/or
• Searches of your person or property with or without a warrant.

What happens if I violate my felony probation?

If you violate felony probation, the judge can:

1. Revoke probation and
2. Send you to prison or jail for up to the maximum sentence for the crime.

But if there is a good reason for the violation, the judge may let it slide. Or the judge can increase the length of probation or make the conditions harsher.

In our experience, we can often avoid these significant consequences of a probation violation by showing the judge that you genuinely did not realize you veered from the court’s terms and have been otherwise compliant.

5. How does felony parole work?

California parole laws are similar to probation laws. But they only apply when:

• You were sentenced to California state prison, and
• You have completed the sentence or been granted early release.

Much like probation, parole comes with conditions. And like probation, California parole can be revoked.

If your parole is revoked, the judge can send you back to prison.

6. What are collateral consequences of a California felony conviction?

A California felony conviction carries numerous collateral consequences. Some of the most important are:

• You must disclose your felony conviction on job applications, if asked,
• You may not own or possess a gun (sometimes for 10 years, at other times for life),
• If your felony was a sex crime, you have to register as a California sex offender under “Megan’s Law”, and
• Your offense may count as a strike under California’s “three strikes law.” (Note that Los Angeles County prosecutors are no longer increasing sentences based on prior strikes. Learn more here.)

For a more complete listing of consequences, please see our article on the Collateral Consequences of a California Felony Conviction, referenced above.

If you are incarcerated for a felony conviction, you have your voting rights restored upon being released from custody. Though you need to re-register to vote.

7. Can a felony reduce to a misdemeanor?

Under California Penal Code 17(b) PC a felony can reduce to a misdemeanor after the fact when:

• The offense was a “wobbler” felony, and
• A judge sentenced you to felony probation for the offense, and you completed it.

For more information, please see our article on “How to Reduce a California Felony to a Misdemeanor.”

8. Can I get a California felony conviction expunged?

For felony convictions (not including serious, violent, or sex offender crimes) for which you completed probation, the state automatically expunges them from your record. If the court does not grant you probation, the state clears the conviction from your record four years after the case ends.

An expungement is not a complete “erasure” of a conviction. Though it does relieve you of many adverse consequences of a conviction.

As Riverside criminal defense attorney Michael Scaffidi¹⁰ explains:

“Being convicted of a California felony doesn’t have to mean the end of your civil rights. A skilled criminal defense attorney has several ways to help relieve a client of the stigma and restrictions that come with a California felony conviction on your criminal record.”

What rights does expungement restore?

There are many benefits to expunging a California conviction. One of the most important is that you do not need to disclose an expunged conviction on most job applications.

In the case of wobbler felony convictions, however, most people choose to have the felony reduced to a misdemeanor before seeking expungement.

An expunged misdemeanor carries more benefits than an expunged felony. For instance, most (though not all) people with expunged misdemeanors may to possess a gun.

For more information, please see our article on “How to Restore Your California Gun Rights.”

What are the requirements for expunging a conviction?

Someone convicted of a felony or a misdemeanor in California may qualify for expungement if:

• The judge did not sentence you to incarceration,
• You are not currently facing charges of, are on probation for, or serving a sentence for a criminal offense, and
• The conviction was not for certain sex offenses or violent crimes.

9. What is the criminal procedure after a felony arrest?

1. After police book you on felony charges, you usually have the option of bailing out unless the charge is extremely serious or you are a flight risk.
2. If prosecutors decide to bring charges, a judge will arraign you in Superior Court. In most cases, you have to appear at your arraignment in person even if you have a private attorney.
3. Unless a grand jury indicted you, anyone facing a felony in California can get a preliminary hearing. This is like a mini-trial in superior court where the prosecutor has the burden to show the judge that there is probable cause that you committed the alleged offenses.
4. If the prosecutor loses the preliminary hearing, the judge will dismiss your case or – in wobbler cases – can reduce the felony down to a misdemeanor. If you lose the preliminary hearing and are “held to answer” for your felony charge, your case then gets “bound over” to district court for a second arraignment, and eventually the judge sets it for trial.
5. Note that anytime before trial, you can bring a Penal Code 995 Motion asking the court to dismiss your felony counts on the grounds that the judge improperly sustained them at the preliminary hearing. Though it is rare for judges to grant 995 motions.

In our experience, we may be able to prevent charges for felonies from being brought at all through a pre-file investigation and intervention. If we can beat the D.A. to the punch and show them ahead of time that they lack probable cause to bring charges, they may drop the whole case.

Additional resources

For more information, refer to the following:

• California Department of Corrections and Rehabilitation – provides information on prison and parole.
• California Innocence Project – works to exonerate wrongfully convicted inmates.
• Reentry Services – programs to help prison inmates reintegrate into society.
• Youth Violence – video by the Centers for Disease Control and Prevention (CDC).
• Prison Policy Initiative – provides California incarceration data and analysis.

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